HomeMy WebLinkAboutResolution 2017 (19) Resolution No. 19 (2017)
ST !`, ~�~ RESOLUTION APPROVING PROPERTY ASSESSED CLEAN
ENERGY OR "PACE" AGREEMENT
1 WHEREAS,pursuant to Wis. Stat. § 66.0301, two or more municipalities of the State of
2 Wisconsin, may by contract create a commission for the joint exercise of any power or duty
3 required or authorized by law; and
4
5 WHEREAS, St. Croix County is a"municipality" as that term is defined in Wis. Stat. §
6 66.0301 and a political subdivision located in the State; and
7
8 WHEREAS, St. Croix County is empowered by law to promote economic, cultural and
9 community development, including, without limitation, the promotion of opportunities for the
10 creation or retention of employment, the stimulation of economic activity, the increase of the tax
11 base, and the promotion of opportunities for education, cultural improvement and public health,
12 safety and general welfare, which may be accomplished by various means; and
13
14 WHEREAS, Wis. Stat. § 66.0627(8) authorizes a city, a village, a town and a county in
15 this State to, among other things, make a loan to or otherwise arrange,participate in or facilitate
16 the financing of an energy improvement, a water efficiency improvement or a renewable
17 resource application to a real property within its jurisdiction and to provide for such financing
18 through the imposition of a special charge against the property benefited by the energy or water
19 efficiency improvement or renewable resource project; and
20
21 WHEREAS, such financings are commonly referred to as "Property Assessed Clean
22 Energy" or"PACE" financings; and
23
24 WHEREAS, St. Croix County has determined that it is in the public interest to provide
25 real property owners, lessees, lenders and other transaction parties in St. Croix County with
26 access to a uniformly administered program for PACE financing; and
27
28 WHEREAS, St. Croix County and other counties, with the support and counsel of the
29 Wisconsin Counties Association, League of Wisconsin Municipalities, Green Tier Legacy
30 Communities and other stakeholders, have studied the possibility of creating a commission
31 pursuant to Wis. Stat. § 66.0301 to be known as the Wisconsin PACE Commission
32 ("Commission"); and
33
34 WHEREAS, the Wisconsin PACE Commission would be formed and operated in
35 accordance with a Joint Exercise of Powers Agreement Relating to Wisconsin PACE
36 Commission ("Commission Agreement") of which a substantially final draft is attached to this
37 Resolution; and
38
39 WHEREAS, it is in St. Croix County's best interests to join the Wisconsin PACE
40 Commission and authorize the execution of the Commission Agreement; and
41
42 WHEREAS, in accordance with Wis. Stat. § 66.0627 and the provisions of the
43 Commission Agreement, St. Croix County must adopt an Ordinance relating to the
44 administration of PACE financings in St. Croix County and throughout the State("PACE
45 Ordinance"); and
46
47 WHEREAS, attached to this Resolution is proposed Chapter 92 of the St. Croix County
48 Code of Ordinances, which will be considered at the same meeting at which this Resolution is
49 being considered ("PACE Ordinance"); and
50
51 WHEREAS, adoption of the PACE Ordinance is a necessary condition to St. Croix
52 County entering into the Commission Agreement; and
53
54 WHEREAS, it is the intent of this Resolution to authorize St. Croix County to become a
55 member of the Commission and authorize a duly-appointed representative of St. Croix County to
56 finalize and execute the final Commission Agreement in substantially the form of the draft
57 Commission Agreement attached to this Resolution.
58
59 NOW, THEREFORE, BE IT RESOLVED: That the St. Croix County Board of
60 Supervisors hereby approves the draft Commission Agreement, a copy of which is attached to
61 this Resolution, and authorizes and directs the St. Croix County Board Chair to sign such
62 document after receipt of preliminary approval from the other participating municipalities,
63 approval from the St. Croix County official duly appointed to approve the final form of the
64 Commission Agreement and approval of the St. Croix County Corporation Counsel; and
65
66 BE IT FURTHER RESOLVED: That the Chair of the St. Croix County Board of
67 Supervisors is hereby directed to appoint a board supervisor to act as St. Croix County's official
68 representative in relation to the final approval of the form of the Commission Agreement and to
69 otherwise take all action necessary to effectuate the intent of this Resolution; and
70
71 AND BE IT FINALLY RESOLVED: That the County Administrator is designated as
72 the St. Croix County "Representative Director" of the Board of Directors of the Commission in
73 accordance with the Commission Agreement, he or she to serve at the pleasure of the St. Croix
74 County Board of Supervisors.
Legal—Fiscal—Administrative Approvals:
Legal Note:
Fiscal Impact: No Financial Impact.
cot Cox, t.orpor-a o 'ouirse1 4/ 412017
i(obert Mi el:, FrM ice, irector 4)1 [11.7
Pa wick 116 65)pscrn,+C;i:uunry C+M�dmini;'Iraior /14/2017
04/19/17 Administration Committee APPROVED
......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ..........
RESULT: APPROVED [UNANIMOUS]
MOVER: Jill Ann Berke, Vice Chair
SECONDER: Ron Kiesler, Supervisor
AYES: Sjoberg, Bergren, Berke, Kiesler, Leibfried
Vote Confirmation.
Roy 1obe,gg, Supervisor 4/24/2017
SL Croix County Board of Supervisors Action:
Roll Call -Vote Requirement— Majority of Supervisors Present
......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ..................
RESULT: ADOPTED [UNANIMOUS]
MOVER: Jill Ann Berke, Supervisor
SECONDER: Christopher Babbitt, Supervisor
AYES: Sicard, Ring, Babbitt, Coulter, Sjoberg, Long, Nelson, Berke, Ostness, Larson,
Hansen, Kiesler, Brinkman, Peterson, Anderson, Achterhof, Leibfried, Peavey
ABSENT: Laurie Bergren
This Resolution was Adopted by the St. Croix County Board of Supervisors on May 2, 2017
Cindy Campbell, County Clerk
CHAPTER 92
AN ORDINANCE TO CREATE ENTITLED "PROPERTY ASSESSED CLEAN
ENERGY FINANCING" OF THE CODE OF ORDINANCES OF ST. CROIX COUNTY,
WISCONSIN
The St. Croix County Board of Supervisors of the County of St. Croix County, Wisconsin does
ordain as follows:
Section 1. Chapter 92 of the St. Croix County Code of Ordinances is created to read as follows:
CHAPTER 92
PROPERTY ASSESSED CLEAN ENERGY FINANCING
92.1 PURPOSE. St. Croix County finds that renovations or additions to premises located in the
County made to improve energy efficiency, improve water efficiency, and/or use renewable
resource applications, increase property values, stimulate local economic activity,provide local
and global environmental benefits, and promote the general welfare of St. Croix County
residents. The purpose of this Section is to facilitate loans arranged by property owners or lessees
to make such improvements by treating loan principal and interest, fees, and other charges as
special charges eligible for inclusion on the tax roll for these properties.
92.2 STATUTORY AUTHORITY. This ordinance is enacted pursuant to Wis. Stat. § 66.0627,
as amended, which authorizes a County to make a loan or enter into an agreement regarding loan
repayments to a 3rd party for owner-arranged or lessee-arranged financing, to an owner or a
lessee of a premises located in the County for making or installing an energy efficiency
improvement, a water efficiency improvement or a renewable resource application to a premises.
92.3 DEFINITIONS. In this section:
(a) "Annual installment" means the portion of the PACE loan that is due and payable
for a particular year under the supplemental agreement.
(b) `Borrower" means the property owner or lessee of the subject property that
borrows the proceeds of a PACE loan.
(c) "Default loan balance" means the outstanding balance, whether or not due, of a
PACE loan at the time that St. Croix County receives foreclosure proceeds.
(d) "Foreclosure proceeds"means the proceeds received by St. Croix County from
the disposition of a subject property through an in rem property tax foreclosure.
(e) "Loan amount" means the principal, interest, administrative fees (including the
Program Administrator's fees) and other loan charges to be paid by the borrower
under the PACE loan.
1
(f) "PACE" means the acronym for property assessed clean energy.
(g) "PACE default provisions"means:
1. The delinquent annual installment(s) due when St. Croix County initiates the in
rem property tax foreclosure on the subject property;
2. Any additional annual installment(s) that become due between the time that St.
Croix County initiates in rem property tax foreclosure on the subject property and
the date St. Croix County receives the foreclosure proceeds;
3. Any default interest charges applied to unpaid annual installments referenced in
subs. (1.) and (2.) above, as provided in the supplemental agreement; and
4. Any default loan balance.
(h) "PACE lender"means any person that makes a PACE loan, and which may
include an affiliate of the borrower.
(i) "PACE loan" means a loan made by a PACE lender to a borrower under this
Section for energy efficiency improvements, water efficiency improvements, or
renewable resource applications made to or installed on a subject property.
(j) "Person" means any individual, association, firm, corporation,partnership,
limited liability company, trust,joint venture or other legal entity, or a political
subdivision as defined in Wis. Stat. § 66.0627.
(k) "Program Administrator"means the person retained by the Wisconsin PACE
Commission as provided in subsection (5)(b).
(1) "Subject property"means any premises located in St. Croix County on which an
energy efficiency improvements, water efficiency improvements, or renewable
resource applications are being or have been made and financed through an
outstanding PACE loan.
(m) "Supplemental agreement" means a written agreement among a borrower, a
PACE lender and the County, as provided for in subsection (7).
(n) "Wisconsin PACE Commission" means the Wisconsin PACE Commission
formed under Wis. Stat. § 66.0301, as amended, by St. Croix County and one or
more other political subdivisions as defined in Wis. Stat. § 66.0627,pursuant to a
Joint Exercise of Powers Agreement relating to the Wisconsin PACE
Commission.
92.4 PACE LOANS AS SPECIAL CHARGES; DELINQUENT AMOUNTS AS LIENS.
Any PACE loan made and secured pursuant to this Section shall be considered a special charge
on the subject property. Any annual installment or portion of a PACE loan made and secured
2
pursuant to the Section that becomes delinquent according to the terms of the PACE loan shall be
a lien against the subject property and placed on the tax roll, as permitted pursuant to Wis. Stat.
§66.0627 as amended.
92.5 WISCONSIN PACE COMMISSION.
(a) Any of the powers and duties of St. Croix County under this Section, except for
those under subsection (9) may (but are not required to)be delegated to the
Wisconsin PACE Commission.
(b) The Wisconsin PACE Commission is further authorized to retain a Program
Administrator to act as its agent and administer the PACE program, subject to
adherence with PACE program requirements set forth in this Section and in Wis.
Stat. § 66.0627 as amended.
92.6 LOAN APPROVAL.
(a) A prospective borrower applying for a PACE loan shall comply with the loan
application process set forth in the program manual approved by St. Croix
County.
(b) St. Croix County shall approve the financing arrangements between a borrower
and PACE lender.
92.7 SUPPLEMENTAL AGREEMENT.
(a) St. Croix County, the borrower and the PACE lender shall execute the
supplemental agreement which, without limitation:
1. Shall inform the participants that the PACE loan amount shall be imposed
as and considered a special charge, and each year's annual installment
may be included on the property tax roll of the subject property as a
special charge and an annual installment that is delinquent shall be a lien
against the subject property pursuant to Wis. Stat. § 66.0627, as amended;
2. Shall recite the amount and the term of the PACE loan;
3. Shall provide for the amount, or a method for determining the amount, of
the annual installment due each year;
4. Shall provide whether default interest may be applied to unpaid annual
installments;
5. Shall require the PACE lender and the borrower to comply with all
federal, state and local lending and disclosure requirements;
6. Shall provide for any fees payable to the County and/or Program
Administrator;
3
7. Shall recite that the supplemental agreement is a covenant that runs with
the land;
8. May provide for prepayments of annual installments by the borrower with
a resulting reduction in the special charge for the prepayment, subject to
any prepayment premium charged by the PACE lender, if any; and
9. May allow for amendment by the parties.
(b) Prior to executing the supplemental agreement, the owner of the subject property,
if different from the borrower, and any existing mortgage holder(s) on the subject
property must have executed a separate writing acknowledging the borrower's use
of PACE financing for the subject property and the special charge that will be
imposed under this Section and its consequences, including the remedies for
collecting the special charge.
(c) Each PACE loan shall be amortized over the term of the PACE loan as provided
in the supplemental agreement.
(d) The annual payments of a PACE loan may be payable in installments as
authorized by Wis. Stat. § 66.0627, as amended.
92.8 ANNUAL INSTALLMENTS ADDED TO TAX ROLLS. Upon the request of the
Program Administrator St. Croix County shall place each year's annual installment on the tax
roll for the subject property as permitted pursuant to Wis. Stat. § 66.0627, as amended.
92.9 REMITTANCE OF SPECIAL CHARGES. St. Croix County shall promptly remit to the
Wisconsin PACE Commission any payment(s) for a special charge imposed under this Section,
including penalties and charges thereon, it may receive from any taxing district or the St. Croix
County treasurer pursuant to Wis. Stat. Ch. 74, as amended.
92.10 PROPERTY TAX FORECLOSURE PROCEDURES.
(a) St. Croix County elects to utilize the provisions of Wis. Stat. § 75.521, as
amended, for the purpose of enforcing tax liens if a subject property owner fails to
pay any special charges imposed on the subject property under this Section as
required.
(b) St. Croix County shall begin an in rem property tax foreclosure proceeding on the
subject property at the earliest time allowed under Wisconsin Statutes, unless St.
Croix County determines that subject property is a"brownfield" (as defined is
Wis. Stat. § 75.106, as amended) or that in rem property tax foreclosure is not in
the best interests of St. Croix County due to the condition of the property or for
other reasons.
(c) If St. Croix County has determined that it will not commence an in rem property
tax foreclosure proceeding, then the PACE lender may request that St. Croix
County,pursuant to Wis. Stat. § 75.106, as amended, assign St. Croix County's
4
right to take judgment against the subject property,provided that the PACE lender
and St. Croix County fully comply with all provisions of Wis. Stat. § 75.106, as
amended, concerning the subject property and the PACE lender agrees to pay the
amounts required by Wis. Stat. § 75.36(3)(a)1 and lm, as amended.
92.11 SALE OF FORECLOSED PROPERTY. If St. Croix County prevails in an in rem
property tax foreclosure action against a subject property, St. Croix County shall diligently
proceed to sell the subject property pursuant to the procedures set forth in Wis. Stat. § 75.69, as
amended.
92.12 DISTRIBUTION OF FORECLOSURE PROCEEDS. The St. Croix County treasurer
shall follow the procedures set forth in Wis. Stat. § 75.36, as amended, to distribute the proceeds
from the sale of a subject property.
Section 2. This Ordinance shall take effect the day after passage and publication as required by
law. (This section shall not be codified)
5
JOINT EXERCISE OF POWERS AGREEMENT
relating to
WISCONSIN PACE COMMISSION
a Joint Powers Commission under Section 66.0301 of the Wisconsin Statutes
THIS AGREEMENT ("Agreement"), dated as of , 2017 among the parties
hereto (all such parties, except those which have withdrawn as provided herein, being referred to
as the "Members" and those parties initially executing this Agreement being referred to as the
"Initial Members"):
WITNESSETH
WHEREAS,pursuant to Section 66.0301 of the Wisconsin Statutes (as in effect as of the
date hereof and as the same may from time to time be amended or supplemented, the"Joint
Powers Law"), two or more municipalities of the State of Wisconsin (the "State"), may by con-
tract create a commission for the joint exercise of any power or duty required or authorized by
law; and
WHEREAS, each of the Members is a"municipality" as that term is defined in the Joint
Powers Law and a political subdivision located in the State; and
WHEREAS, each of the Members is empowered by law to promote economic, cultural
and community development, including, without limitation, the promotion of opportunities for
the creation or retention of employment, the stimulation of economic activity, the increase of the
tax base, and the promotion of opportunities for education, cultural improvement and public
health, safety and general welfare, which may be accomplished by various means; and
WHEREAS, Section 66.0627(8) of the Wisconsin Statutes (as the same may from time
to time be amended or supplemented, the "PACE Statute") authorizes a city, a village, a town (a
"Municipality") or a county (a"County")in this State to, among other things, make a loan to or
otherwise arrange,participate in or facilitate the financing of an energy efficiency improvement,
a water efficiency improvement or a renewable resource application to a real property within its
jurisdiction and to provide for such financing through the imposition of a special charge against
the property benefitted by the energy or water efficiency improvement or renewable resource
project; and
WHEREAS, such financings are commonly referred to as "Property Assessed Clean
Energy" or"PACE" financings; and
WHEREAS, the Members have determined that it is in the public interest to provide real
property owners, lessees, lenders and other transaction parties (collectively, "Participants")in
their respective jurisdictions with access to a uniformly-administered program for PACE
financing; and
WHEREAS, each Member has authorized entering into this Agreement by its governing
body.
NOW, THEREFORE, the Members, for and in consideration of the mutual promises
and agreements herein contained, do agree as follows:
Section 1. Creation. Pursuant to the Joint Powers Law, there is hereby created a
commission to be known as the "Wisconsin PACE Commission" (the "Commission").
Section 2. Purpose. This Agreement is a contract entered into pursuant to the provisions
of the Joint Powers Law. The purpose of this Agreement is to establish a joint powers
commission for the joint exercise of any power or duty of the Members under applicable law. In
particular, the purpose of the Commission is to adopt, implement and administer a uniform
program for the qualification for, and approval, granting, administration and collection of, PACE
loans (the "PACE Program"). Such purposes shall be accomplished in the manner pro-vided in
this Agreement.
Section 3. Effectiveness; Term. This Agreement shall become effective and be in full
force and effect and a legal, valid and binding agreement of each of the Members on the date that
the Board shall have received from at least two of the Initial Members an executed counterpart of
this Agreement, together with a certified copy of a resolution of the governing body of each such
Initial Member approving this Agreement and the execution and delivery hereof. This
Agreement shall continue in full force and effect until such time as it is terminated by written
instrument executed by all of the Members.
Section 4. Powers. The Commission shall have the power, in its own name, to exercise
any powers or duties of the Members required or authorized by law and to exercise all additional
powers given to a joint powers commission under any law, including, but not limited to, the Joint
Powers Law, for any purpose authorized under this Agreement. Such powers shall include the
power to make loans or otherwise arrange,participate in or facilitate the financing of energy or
water efficiency improvement projects or renewable resource applications as provided in the
PACE Statute including, without limitation, the exercise of the power and authority, without
further action by the Member, to impose special charges pursuant to the PACE Statute on real
property within the Members'jurisdictions. The Commission is hereby authorized to do all acts
necessary or convenient for the exercise of such power and authority, including, but not limited
to, any or all of the following: (i) to make and enter into contracts; (ii) to employ agents and
employees; (iii) to acquire, construct,provide for maintenance and operation of, or maintain and
operate, any buildings, works, improvements, equipment or furnishings; (iv) to acquire, hold or
dispose of property wherever located; (v) to incur debts, liabilities or obligations; (vi) to receive
gifts, contributions and donations of property, funds, services, and other forms of assistance from
persons, firms, corporations or any governmental entity; (vii) to sue and be sued in its own name;
(viii) to make grants to governmental and nonprofit organizations to accomplish any of its
purposes; (ix) to establish and collect fees; and (x) generally to do any and all things necessary or
convenient to accomplish its purposes.
Section 5. Contractors and Subcontractors. The Commission may enter into a contract
with a third-party contractor for the provision of services related to the PACE Pro-gram. Such
contractor shall be a nonstock corporation organized under Ch. 181 of the Wisconsin Statutes
with its principal place of business located in the State of Wisconsin. The participant fee
schedule established by the Board (as defined below) shall make provision for reason-able
compensation and payment of the expenses of such contractor as may be set forth in the contract.
A contractor may subcontract for any of its services to the extent permitted by the contract. The
Board is also authorized to hire counsel or other consultants or advisers as it deems necessary in
carrying out his functions.
Section 6. Members' Obligations. Each Member by its execution hereof acknowledges
and agrees that it shall do all things necessary and appropriate in respect of the collection of
special charges (or installments thereof), the certification of special charges on the tax rolls, the
remittance of special charges collected as directed by the Commission and other-wise as such
Member would perform in connection with special charges imposed by it on real property within
its jurisdiction; and further shall cooperate with the Commission in respect of the enforcement of
the liens of special charges on such properties.
Section 7. Governance; Administration
(a) Board of Directors. The Commission shall be governed by a Board of Directors (the
"Board'). The Board shall oversee all functions of the Commission under this Agreement and, as
such, shall be vested with the powers set forth herein, shall administer this Agreement in
accordance with the purposes and functions provided herein and shall otherwise exercise all
powers set forth in the Joint Powers Law on the Commission's behalf.
(b) Classes of Directors. The Board shall be divided into two classes known as the
"Representative Director Class" and the"Nominee Director Class" consisting of the number of
members (each a"Director") serving for the terms as provided in this Section 7. In this
Agreement, the term "Board" shall mean the entire Board(comprising all Representative
Directors and Nominee Directors) and the term "Director" shall be used to refer generally to
either a Representative Director or a Nominee Director).
(1)Representative Directors. The number of Representative Directors shall
correspond to the number of Members of the Commission from time to time. Each
Member of the Commission shall designate, by name or ex oficio, one public
official to serve as its representative on the Board. The term "public official"
means an individual who holds a local public office, as that term is defined in
Section 19.42(7w) of the Wisconsin Statutes, for the Member of the Commission
designating him or her as its Representative Director. Each Representative
Director shall serve at the pleasure of the Member designating him or her to such
position; provided, that a Representative Director shall be deemed to have
resigned upon withdrawal from the Commission of the Member designating him
or her to such position. A majority of the Directors shall at all times be
Representative Directors except that such requirement shall not apply until the
Commission has at least four(4) Members.
(2)Nominee Directors.
(i) The number of Nominee Directors shall initially be three(3),
nominated one each by the Wisconsin Counties Association, the League of
Wisconsin Municipalities and the Green Tier Legacy Communities (the
"Supportia OManizations"). Thereafter, so as to insure that at all times
Representative Directors comprise a majority of the Board, at such time as the
Commission has at least seven (7) Members, the number of Nominee Directors
shall be increased to six (6) and at such time as the Commission has at least ten
(10) Members, the number of Nominee Directors shall be increased to nine(9), in
each case with the additional directors nominated by the Sponsoring
Organizations as provided above.
(ii)Nominee Directors may but need not be public officials.
(iii) Each Nominee Director shall serve for an initial term expiring at the
first annual Board meeting held after I)ecenibe• 31, 2017. The successors to such
Nominee Directors shall be selected by majority vote of the entire Board
consistent with a nomination process to be established by the Board. Thereafter,
Nominee Directors shall serve staggered three (3)year terms expiring at the
Annual Board Meeting in every third year or until their respective successors are
appointed. Any appointment to fill an unexpired term, however, shall be for the
remainder of such unexpired term. The term of office specified herein shall be
applicable unless the term of office of a Nominee Director is terminated as
hereinafter provided, and provided that the term of any Nominee Director shall
not expire until a successor thereto has been appointed as provided herein.
(iv) The number of Nominee Directors may be increased or decreased by
resolution adopted by the Board from time to time,provided, that any decrease in
the number of Nominee Directors shall not decrease the term of any current
director at the time of such decrease.
(v) A Nominee Director may be removed and replaced at any time by a
majority vote of the Board.
(3)Executive Committee. The Board shall by resolution create an Executive
Committee which shall be charged with carrying out the supervisory functions of
the Board in such manner as the Board so directs. A majority of the members of
the Executive Committee shall be Representative Directors.
(4)Expenses. Directors shall be entitled to reimbursement for any actual and
necessary expenses incurred in connection with serving as a Director, if the Board
shall determine that such expenses shall be reimbursed and there are
unencumbered funds available for such purpose. The Board may establish a per
diem and/or expense reimbursement policy by resolution.
(c) Meetings of the Board.
(1)Meetings Generally. All meetings of the Board, including, without limitation,
regular, adjourned regular, special, and adjourned special meetings shall be called,
noticed, held and conducted in accordance with the provisions of the Wisconsin
Open Meetings Law, Wis. Stat. § 19.81 et seq. (the"Open Meetings Law"). To
the ex-tent permitted by the Open Meetings Law, Board meetings may be held by
telephone conference or other remote access technology as approved by the
Board. A director shall be"present" at any regular or special meeting if he or she
participates in person or telephone conference or other remote access technology
as approved by the Board.
(2)Proxy Voting. Directors may not vote by proxy.
(3)Regular Meetings. The Board shall from time to time establish a schedule for
its regular meetings;provided, however, it shall hold at least one regular meeting
each year. The date, hour and place of the holding of regular meetings shall be
fixed by resolution of the Board.
(4) Special Meetings. Special meetings of the Board may be called in accordance
with the provisions of the Open Meetings Law. The date, hour and place of the
holding of special meetings shall be fixed by resolution of the Board
(5)Minutes. The Secretary of the Commission shall cause to be kept minutes of
the regular, adjourned regular, special, and adjourned special meetings of the
Board and shall, as soon as possible after each meeting, cause a copy of the
minutes to be forwarded to each Director.
(6) Quorum and Voting, Generally. Except as provided in Sub. 6, below: (i) a
majority of the Directors shall constitute a quorum for the transaction of business;
(ii) Representative Directors and Nominee Directors shall vote as a single class on
all matters to come to a vote of the Board; and(iii)no action may be taken by the
Board except upon the affirmative vote of a majority of the Directors present (or,
with respect to any matter, such greater number as may be provided by the By-
Laws or resolution of the Board), except that less than a quorum may adjourn a
meeting to another time and place.
(7) Special Quorum and Voting Requirements. With respect to any vote to
approve the imposition of a special charge on real property pursuant to the PACE
Statute, the following shall apply:
(i) A quorum with respect to such vote shall exist only if(A) a majority of
the Directors are present, and(B) a majority of the Directors who are present are
Representative Directors.
(ii) No imposition of a special charge on real property shall be approved
except upon the affirmative vote of(A) a majority of the Directors present and (B)
a majority of the Representative Directors present.
(d) Officers; Duties; Official Bonds. The officers of the Commission shall be the Chair,
Vice-Chair, Secretary and Treasurer, such officers to be elected by the Board from among the
Directors, each to serve until such officer is re-elected or a successor to such office is elected by
the Board. Each officer shall have the following general duties and responsibilities in addition to
any further specific duties and responsibilities set forth herein, in the By-Laws or by resolution
of the Board.
(1) The Chair shall be the chief executive officer of the Commission and shall be
responsible for the calling of, and shall preside at, meetings of the Board.
(2) The Vice-Chair shall exercise the duties and functions of the Chair in the
Chair's absence.
(3) The Secretary shall cause to be kept minutes of the regular, adjourned regular,
special, and adjourned special meetings of the Board and shall, as soon as
possible after each meeting, cause a copy of the minutes to be forwarded to each
Director.
(4) The Treasurer shall be the depositary of the Commission to have custody of all
money of the Commission, from whatever source derived and shall have the
powers, duties and responsibilities specified in by-laws or by resolution, and is
designated as the public officer or person who has charge of,handles, or has
access to any property of the Commission.
(e) Committees; Officers and Employees. The Board shall have the power to appoint such
other committees, officers and employees as it may deem necessary.
(f) Delegation of Authority. The Board shall have the power, by resolution, to the extent
permitted by the Joint Powers Law or any other applicable law, to delegate any of its functions to
one or more of the Directors or officers, employees, administrators or agents of the Commission
(including, without limitation, the contactor and any counsel or consultant hired or appointed
pursuant to Section 5) and to cause any of said Directors, officers, employ-ees or agents to take
any actions and execute any documents or instruments for and in the name and on behalf of the
Board or the Commission.
(g) By-Laws. The Commission may adopt, from time to time, by resolution of the Board
such by-laws for the conduct of its meetings and affairs as the Board may deter-mine to be
necessary or convenient.
Section 8. Fiscal Year. The Commission's fiscal year shall be the period from January 1
to and including the following December 31, except for the first fiscal year which shall be the
period from the date of this Agreement to December 31, 2016.
Section 9. Disposition of Assets. At the end of the term hereof or upon the earlier
termination of this Agreement as set forth in Section 3, after payment of all expenses and
liabilities of the Commission and provision for the continuing administration of all PACE
financings that have been completed and are outstanding at the time of such termination, all
property of the Commission both real and personal shall automatically vest in the Members in
the manner and amount determined by the Board in its sole discretion and shall thereafter re-
main the sole property of the Members;provided, however, that any surplus money on hand shall
be returned in proportion to any contributions made by the Members and not previously repaid.
Section 10. Accounts and Reports; Audits. All funds of the Commission shall be
strictly accounted for. The Commission shall establish and maintain such funds and accounts as
may be required by good accounting practice. The books and records of the Com-mission shall
be open to inspection at all times by each Member. The Treasurer of the Com-mission shall
cause an annual audit to be made of the books of accounts and financial records of the
Commission by a certified public accountant or public accountant. Any costs of the au-dit,
including contracts with, or employment of, certified public accountants or public account-ants
in making an audit pursuant to this Section 10, shall be borne by the Commission and shall be a
charge against any unencumbered funds of the Commission available for that purpose.
Section 11. Funds. The Treasurer shall receive, have the custody of and dis-burse
Commission funds pursuant to the accounting procedures developed under Section 10, and shall
make the disbursements required by this Agreement or otherwise necessary to carry out any of
the provisions of purposes of this Agreement.
Section 12. Notices.Notices and other communications hereunder to the Mem-bers shall
be sufficient if delivered to the clerk of the governing body of each Member.
Section 13. Additional Members; Withdrawal of Members.
(a) Counties. Any County in this State may be added as a party to this Agreement and
become a Member upon: (i) the filing by such County with the Commission an executed
counterpart of this Agreement, together with a certified copy of the resolution of the governing
body of such County approving this Agreement and the execution and delivery hereof, (ii)
adoption by the County of the Model PACE Ordinance in accordance with Section 14(a)hereof
and a certified copy of the resolution adopting same; and (iii) adoption of a resolution of the
Board approving the addition of such County as a Member. Upon satisfaction of such conditions,
the Board shall file such executed counterpart of this Agreement as an amendment hereto,
effective upon such filing.
(b) Municipalities. Any Municipality in this State may be added as a party to this
Agreement and become a Member upon: (i) the filing by such Municipality with the Commission
an executed counterpart of this Agreement, together with a certified copy of the resolution of the
governing body of such Municipality approving this Agreement and the execution and delivery
hereof, and (ii) adoption of a resolution of the Board approving the addition of such Municipality
as a Member. Upon satisfaction of such conditions, the Board shall file such executed
counterpart of this Agreement as an amendment hereto, effective upon such filing.
(c) Withdrawal. A Member may withdraw from this Agreement upon writ-ten notice to
the Board;provided, however, that no such withdrawal shall reduce the number of Members to
fewer than two (2). Any such withdrawal shall be effective only upon receipt of the notice of
withdrawal by the Secretary which shall acknowledge receipt of such notice of withdrawal in
writing and shall file such notice as an amendment to this Agreement effective upon such filing.
Withdrawal by a Member shall not affect any outstanding PACE loans within such Member's
jurisdiction or the Member's obligations, if any, with respect to the certification, collection and
remittance of special charges in accordance with the PACE Program, nor shall withdrawal entitle
any former Member to impose a tax, fee or charge prohibited to the remaining Members under
Section 17.
Section 14. Model PACE Ordinance for County Members.
(a) As a condition to membership in the Commission, each County Member shall have
adopted an ordinance(the "Model PACE Ordinance")in substantially the form, and
substantively to the effect, set forth in EXHIBIT A to this Agreement.
(b) As a condition to continued membership in the Commission, a County Member shall
not have repealed its Model PACE Ordinance or amended its Model PACE Ordinance unless
such amendment has been submitted to and approved by the Board (a"Conforming
Amendment")prior to its adoption. The Board shall not unreasonably withhold approval of such
an amendment but shall not approve any amendment to a County Member's Model PACE
Ordinance that, in the opinion of the Board, would frustrate or unreasonably interfere with the
uniform application and administration of the PACE Program. Approvals or non-approvals by
the Board shall be final and conclusive.
(c) The repeal of or adoption of an amendment(other than a Conforming Amendment) to
a County Member's Model PACE Ordinance shall be deemed to be a voluntary withdrawal by
such County Member with the effects set forth in Section 13(c).
Section 15. Indemnification. To the fullest extent permitted by law, the Board shall
cause the Commission to indemnify any person who is or was a Director or an officer, employee
of other agent of the Commission, and who was or is a party or is threatened to be made a party
to a proceeding by reason of the fact that such person is or was such a Director or an officer,
employee or other agent of the Commission, against expenses,including attorneys' fees,
judgments, fines, settlements and other amounts actually and reasonably incurred in connection
with such proceeding, if such person acted in good faith in a manner such person reasonably
believed to be in the best interests of the Commission and, in the case of a criminal proceeding,
had no reasonable cause to believe the conduct of such person was unlawful and, in the case of
an action by or in the right of the Commission, acted with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
The Board may purchase a policy or policies of insurance in furtherance of any indemnification
obligation created.
Section 16. Contributions and Advances. Contributions or advances of public funds
and of the use of personnel, equipment or property may be made to the Commission by Members
for any of the purposes of this Agreement. Payment of public funds may be made to defray the
cost of any such contribution or advance. Any such advance may be made subject to repayment,
and in such case shall be repaid, in the manner agreed upon by the Commission and the Member
making such advance at the time of such advance. It is mutually understood and agreed to that no
Member has any obligation to make advances or contributions to the Com-mission to provide for
the costs and expenses of administration of the Commission or other-wise, even though any
Member may do so.
Section 17. Prohibition on Charges. No Member may impose upon or demand or
collect from any Participant any tax, fee, charge or other remuneration as a condition to a
Participant's obtaining PACE financing through or with the assistance of the Commission,
except that Members may be permitted to do so pursuant to a uniform participant fee schedule
established from time to time by the Board as part of the PACE Program.
Section 18. Immunities. To the fullest extent permitted by law, all of the privileges and
immunities from liabilities, exemptions from laws, ordinances and rules, and other benefits
which apply to the activity of officers, agents or employees of Members when per-forming their
respective functions, shall apply to the same degree and extent to the Directors, officers,
employees, agents or other representatives of the Commission while engaged in the performance
of any of their functions or duties under this Agreement.
Section 19. Amendments.
(a) Amendments to the Agreement may be proposed by the Board or by any two
Members. Except as provided in Section 13 and in Subsection (c), below, this Agreement shall
not be amended, modified, or altered, without the affirmative approval of the Board and the
affirmative written consent of each of the Members; provided, that if the number of Members
exceeds ten (10) in number, this Agreement may also be amended with the affirmative approval
of the Board and negative consent of each Member. To obtain the negative con-sent of the
Members, the following procedure shall be followed: (i) the Commission shall pro-vide each
Member with a notice at least sixty (60) days prior to the date such proposed amendment is to
become effective explaining the nature of such proposed amendment and this negative consent
procedure; (ii) the Commission shall provide each Member who did not respond a reminder
notice at least thirty (30) days prior to the date such proposed amendment is to become effective;
and (iii)if no Member objects to the proposed amendment in writing with-in sixty (60) days after
the initial notice, the- proposed amendment shall become effective with respect to all Members.
No amendment may impose a direct financial obligation on any Member without that Member's
affirmative written consent.
(b) The Board may, without the consent of the Members, amend this Agreement
if, in its reasonable opinion and upon the advice of counsel, if deemed appropriate, upon which
advice the Board may rely, such amendment is technical or clarifying in nature and does not
substantively affect the rights and responsibilities of the Members. Notice of such amendment
shall be provided to the Members at least twenty (20)but not more than sixty (60) days prior to
the date such proposed amendment is to become effective explaining the nature of such proposed
amendment and, upon the written request of any two (2) Members, the Board shall submit the
proposed amendment for ratification by the Members in accordance with the procedure
otherwise set forth in this Section 19.
Section 20. Partial Invalidity. If any one or more of the terms,provisions,promises,
covenants or conditions of this Agreement shall to any extent be adjudged invalid,
unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction,
each and all of the remaining terms,provisions,promises, covenants and conditions of this
Agreement shall not be affected thereby, and shall be valid and enforceable to the fullest extent
permitted by law.
Section 21. Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors of the parties hereto. Except to the extent expressly provided herein, no
Member may assign any right or obligation hereunder without the consent of the other Members.
Section 22. Miscellaneous.
(a) This Agreement may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same instrument.
(b) The Section headings herein are for convenience only and are not to be
construed as modifying or governing the language in the Section referred to.
(c) Wherever in this Agreement any consent or approval is required, the same
shall not be unreasonably withheld.
(d) This Agreement shall be governed under the laws of the State of Wisconsin.
(e) Any future amendments to the Joint Powers Laws shall be automatically
incorporated into the terms of this Agreement and any terms of this Agreement
inconsistent with future amendments to the Joint Exercise of Powers Laws shall,
only to the extent necessary, be reformed in a manner consistent with the
amendments.
(f) This Agreement is the complete and exclusive statement of the agreement
among the Members, which supersedes and merges all prior proposals,
understandings, and other agreements, whether oral, written, or implied in
conduct, between and among the Members relating to the subject matter of this
Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
attested by their duly authorized representatives as of the day and year first above written.
On behalf of COUNTY/CITY/VILLAGE/TOWN:
By:
Its:
On behalf of COUNTY/CITY/VILLAGE/TOWN:
By:
Its:
On behalf of COUNTY/CITY/VILLAGE/TOWN:
By:
Its:
On behalf of COUNTY/CITY/VILLAGE/TOWN:
By:
Its:
On behalf of COUNTY/CITY/VILLAGE/TOWN:
By:
Its:
On behalf of COUNTY/CITY/VILLAGE/TOWN:
By:
Its:
EXHIBIT A Model Pace Ordinance