Loading...
Agenda 05/28/2019 Item #11G (Resolution - PACE)05/28/2019 EXECUTIVE SUMMARY Recommendation to further discuss the adoption of a Resolution from the May 14, 2019 Board of County Commissioners Meeting which would (1) repeal the existing property assessment clean energy (PACE) program, replacing it with a new PACE Program limited to commercial, industrial and multi-family rental apartment buildings, and (2) approve a new standard form membership agreement with PACE providers also limited to commercial, industrial and multi-family rental apartment buildings to better protect the public by providing for more restrictive or additional requirements not found in the standard form membership agreement or any other applicable law. In addition, recommendation to direct staff to (1) send written notice of termination of all existing membership agreements with current PACE Providers, and (2) offer the new standard form membership agreement to all existing and other interested PACE Providers. _____________________________________________________________________________________ OBJECTIVE: To limit the PACE Program to commercial, industrial, and multi-family rental apartment buildings, and eliminate residential property owners who could be targeted by unscrupulous contractors from the Program. CONSIDERATIONS: At the Board of County Commissioners May 14, 2019 meeting, the Board directed the County Manager to bring back to their next regular meeting for further discussion about considering an Executive Summary repealing Resolution No. 2017-130 that established the PACE program within unincorporated Collier County and all associated membership agreements, and an updated PACE program establishing a revised PACE program within unincorporated Collier County that would only allow for improvements to commercial, industrial, and multi -family rental apartment buildings. This was further discussed at the March 26 and May 14, 2019 meetings. Background In 2010, the State of Florida passed its PACE enabling statute, F.S. Section 163.08, in an effort to promote energy efficiency, renewable energy, and wind resistance/hardening measures for residential, commercial, and industrial buildings throughout the State of Florida. The PACE program is a method of public financing designed to have “qualifying improvements” paid for through a special tax assessment, on the property, which would allow project expenditures to be spread out over a term up to 30 years and repaid as part of a property owner’s tax bill. As outlined in Section 163.09(2)(b), Florida Statutes, eligible PACE improvements are limited to: energy efficiency (including electric vehicle charging equipment) renewable energy equipment and wind resistance/hurricane mitigation measures. PACE financing is a land-secured assessment that property owners voluntarily undertake in order to secure 100% up-front financing of a qualifying improvement, which includes fees and interest over the term of the PACE assessment. PACE loans are unique in that they take priority over other traditional liens, regardless of the date the prior liens were recorded. In addition to economic and property value benefits, PACE also presents benefits in terms of resource conservation, environmental protection, and hurricane preparedness. By removing barriers to implementation of energy efficiency and renewable energy projects, PACE could result in decreased use of energy and a shift to cleaner energy sources, decreasing air pollutants, and greenhouse gases. Florida’s including of resiliency projects in the list of eligible types could also increase the number of prope rties with hurricane preparedness improvements. 11.G Packet Pg. 348 05/28/2019 Local governments created by interlocal agreement in accordance with Section 163.01 (7), F.S. are hereinafter referred to as “Pace Providers.” In 2017, by Resolution No. 2017-130, the Board of County Commissioners adopted a resolution establishing the Property Assessment Clean Energy (PACE) program within the unincorporated areas of Collier County for residential, commercial and industrial properties. Since that time, by Resolution Nos. 2017-127, 2017-128, 2017-129, and 2017-153, a number of PACE providers have entered into the standard membership agreement and are operating a PACE program within Collier County. It has been reported that potential abuses of the PACE program have taken place, largely from a minority of PACE program contractors, which the proposed new resolution seeks to address. This Executive Summary, together with the attached documents, is intended to address this problem. At the May 14, 2019 Board of County Commissioners regular meeting, the Board directed the County Manager to bring back the PACE Resolution for further discussion, consideration, and Board direction. Considerations for the Board The purpose of the current PACE Program is to facilitate the financing of qualifying improvements in accordance with Section 163.08, Florida Statutes, for County property owners within unincorporated Collier County, including residential, commercial and industrial properties. The new PACE Program essentially amends the current program by eliminating those residential property owners who could be targeted by unscrupulous contractors. Paragraph 10 of the standard form membership agreement provides as follows: “Local program Guidelines. The Parties agree that the County may in the future implement its own local program guidelines or affirmatively modify the program guidelines to be utilized in Unincorporated Collier County. If the County decides to exercise these rights, it shall give sixty (60) days written notice to the Authority. Any such local program guidelines can be amended and changed only by resolution of the Board of County Commissioners. The County may adopt more restrictive guidelines than those of the Authority. Notwithstanding anything stated herein to the contrary, the PACE materials, including the Authority's program guidelines, shall be fully consistent with applicable County, state, and federal laws.” Paragraph 18 of the standard form membership agreement provides as follows: “Term. This Agreement shall remain in full force and effect from the date of its execution by both Parties. Any Party may terminate this Agreement for convenience upon ninety (90) days prior written notice (“Termination Notice"). Beginning on the date the Authority receives a Termination Notice from the County ("Termination Date"), the Authority shall not approve any new applications affecting property within the legal boundaries of the Unincorporated Collier County referenced in the Termination Notice. Notwithstanding termination of this Agreement, however, property owners whose, applications were approved prior to the Termination Date, and who received funding through the Program, shall continue to be a part of the Authority, for the sole purpose of paying their outstanding debt, until such time that all outstanding debt has been satisfied.” 11.G Packet Pg. 349 05/28/2019 The options are to either (1) give the current PACE providers notice under Paragraph 10 of the current membership agreements that the County is amending its program, which would allow the PACE Providers to continue soliciting for and taking applications for residential properties for the next 60 days, or (2) terminate the current membership agreements, which means no new PACE applications of any kind (including residential) can be processed following the following the issuan ce of the notice to terminate, and then offer the PACE Providers the opportunity to participate in the County’s new PACE Program, by entering into a modified membership agreement. These new agreements would be taken to the Board promptly upon our receipt. The benefit of the first option is that it keeps the current program in place for use by commercial and industrial property owners, with the downside that the residential program would be active for an additional 60 days. The benefit of the second option is that the residential program would be shut down immediately, with the downside that the commercial and industrial portion of the program would also be shut down during the interval between the termination of the current agreement and Board approval of the modified replacement membership agreements, which we believe will take between 14 and 28 days to fully process. The recommendation is for the Board to consider information provided by the public speakers at the May 14, 2109 Board of County Commissioners regular meeting, allow the PACE providers to supply information requested by the Board. If this Resolution is approved, Staff will bring back all updated membership agreements for Board consideration at a future meeting. FISCAL IMPACT: A PACE program would not have a current or future financial impact on the County budget. It is the responsibility of PACE Provider and Third Party Administrator to secure the private financing necessary for the implementation of the program, and they are responsible for recovering any losses in the event of defaults on the assessments. They cover the costs of collecting the assessments and administrative costs through their fees and interest rates. There will be limited County staff involvement with administering and providing oversight to this program. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this action. LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to form and legality, and requires majority vote for approval. -JAK RECOMMENDATION: Recommendation to consider information provided by the PACE providers and if chosen, to adopt a Resolution which (1) repeals the existing property assessment clean energy (PACE) program, replacing it with a new PACE Program limited to commercial, industrial and multi- family rental apartment buildings, and (2) approves a new standard form membership agreement with PACE providers also limited to commercial, industrial and multi-family rental apartment buildings. In addition, recommendation to direct staff to (1) send written notice of termination of all existing membership agreements with current PACE Providers, and (2) offer the new standard form membership agreement to all existing and other interested PACE Providers. Prepared by: James French, Deputy Department Head, Growth Management Department, and Jeffrey A. Klatzkow, County Attorney 11.G Packet Pg. 350 05/28/2019 ATTACHMENT(S) 1. Resolution - PACE repeal replace - initialed (PDF) 2. Membership Agreement - 031819.docx (PDF) 11.G Packet Pg. 351 05/28/2019 COLLIER COUNTY Board of County Commissioners Item Number: 11.G Doc ID: 9066 Item Summary: *** This item to be heard no sooner than 1:00 p.m. *** This item has been continued from the May 14, 2019 BCC meeting." Recommendation to further discuss the adoption of a Resolution from the May 14, 2019 Board of County Commissioners Meeting which would (1) repeal the existing property assessment clean energy (PACE) program, replacing it with a new PACE Program limited to commercial, industrial and multi-family rental apartment buildings, and (2) approve a new standard form membership agreement with PACE providers also limited to commercial, industrial and multi-family rental apartment buildings to better protect the public by providing for more restrictive or additional requirements not found in the standard form membership agreement or any other applicable law. In addition, recommendation to direct staff to (1) send written notice of termination of all existing membership agreements with current PACE Providers, and (2) offer the new standard form membership agreement to all existing and other interested PACE Providers. (James French, Deputy Department Head, GMD) Meeting Date: 05/28/2019 Prepared by: Title: Operations Analyst – Growth Management Operations & Regulatory Management Name: Judy Puig 05/22/2019 10:54 AM Submitted by: Title: Division Director - Operations Support – Growth Management Operations & Regulatory Management Name: Kenneth Kovensky 05/22/2019 10:54 AM Approved By: Review: Growth Management Department Judy Puig Level 1 Reviewer Completed 05/22/2019 10:55 AM Growth Management Department Judy Puig Department Head Review Skipped 05/22/2019 3:03 PM Growth Management Department James C French Deputy Department Head Review Completed 05/22/2019 3:16 PM Office of Management and Budget MaryJo Brock Level 3 OMB Gatekeeper Review Skipped 05/22/2019 11:38 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 05/22/2019 3:21 PM County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 05/22/2019 3:46 PM Board of County Commissioners MaryJo Brock Meeting Pending 05/28/2019 9:00 AM 11.G Packet Pg. 352 11.G.1 Packet Pg. 353 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 354 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 355 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 356 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 357 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 358 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 359 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 360 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 361 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) 11.G.1 Packet Pg. 362 Attachment: Resolution - PACE repeal replace - initialed (9066 : PACE Program) [16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 1 STANDARD MEMBERSHIP AGREEMENT BETWEEN ___________________________________ AND COLLIER COUNTY This Agreement (“the Agreement") is entered into this______ day of____ , 2019 by and between the ___________________________, a public body corporate and politic (the "Authority") created as a separate legal entity pursuant to Section 163.01(7), Florida Statutes, and Collier County, a political subdivision of the State of Florida (the "County" or “Collier County”) (collectively, the "Parties") for the purpose of providing a Property Assessed Clean Energy ("PACE") program within Unincorporated Collier County. NOW, THEREFORE, in consideration of the terms and conditions, promises and covenants hereinafter set forth, the Parties agree as follows: 1. Purpose. The purpose of this Agreement is to facilitate the financing of qualifying improvements through a PACE program, in accordance with Section 163.08, Florida Statutes, for County property owners within Unincorporated Collier County, including commercial, industrial, and multi-family rental apartment properties. 2. Qualifying Improvements. The Authority may provide "Qualifying Improvements" to real property within Unincorporated Collier County, in accordance with Section 163.08, Florida Statutes, and subject to the terms of this Agreement, as well as applicable federal, state, and County law. 3. Financing Agreement. Before extending any financing or subjecting any participating real property within the County, to the non-ad valorem special assessment authorized therein, the Authority shall, on a non-exclusive basis pursuant to the Section 163.08, Florida Statutes and this Agreement, enter into a Financing Agreement with properly owner(s) within Unincorporated Collier County who qualify for financing through the Authority. This Financing Agreement shall include a thorough explanation of the PACE financing process and specify at what point in the process the special assessment will be added to the property's owner's property taxes (after completion of the project(s), permit approval, and approval by the property owner). 4. Assessment by Authority. The Parties acknowledge and agree that the non-ad valorem assessments arising from a property owner's voluntary participation in the PACE Program are imposed by the Authority and not by the County. 5. Agreements with Tax Collector and Property Appraiser. This Agreement shall be subject to the express condition precedent that Authority enter into separate agreement(s) with the tax collector and the property appraiser which shall provide for the assessment and collection of any non-ad valorem special assessments imposed by the Authority and establish Cost Recovery Reimbursements to the Collier County Tax Collector and Collier County Property Appraiser (if any) to be charged for the collection and/or handling of those non-ad valorem assessments. Additionally, the Parties agree that the Property Appraiser's and Tax Collector’s assessment, collection, and distribution of any such non-ad valorem assessments imposed by the Authority are purely ministerial acts. 11.G.2 Packet Pg. 363 Attachment: Membership Agreement - 031819.docx (9066 : PACE Program) [16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 2 6. Non-Exclusive. The Program is non-exclusive, meaning the County specifically reserves the right to authorize other entities to provide a similar program under Section 163.08, Florida Statutes; or create its own program under Section 163.08; Florida Statutes. 7. Boundaries of for Program. For purposes of the PACE Program authorized by this Agreement, the boundaries of the Authority shall include the legal boundaries of Unincorporated Collier County, which boundaries may be limited, expanded, or more specifically designated from time to time by the County by providing written notice to the Authority. 8. Properties. Within the Unincorporated area of Collier County, commercial, industrial, and multi- family rental apartment properties may be eligible. 9. PACE program guidelines and other materials. All PACE materials for use within Unincorporated Collier County, or otherwise related to this Agreement, including but not limited to program guidelines, rules, consumer agreements, consumer financing agreements, and promotional materials, shall be fully consistent with the Collier County Land Development Code, Collier County Code of Laws and Ordinances, and Collier County resolutions, all of which may be amended from time to time, and with this Agreement and applicable federal and state laws. The Authority acknowledges and agrees that PACE materials for use within Unincorporated Collier County, or otherwise related to this Agreement, shall be modified accordingly and reviewed on a continuing basis for consistency with applicable County, state and federal laws. It shall be the obligation of the Authority to establish and maintain such consistency. County shall provide written notice to the Authority of any proposed legislative changes to the PACE program via electronic transmission or US Mail no later than five (5) days prior to the public hearing on the proposed legislative changes. 10. Local program Guidelines. The Parties agree that the County may in the future implement its own local program guidelines or affirmatively modify the program guidelines to be utilized in Unincorporated Collier County. If the County decides to exercise these rights, it shall give sixty (60) days written notice to the Authority. Any such local program guidelines can be amended and changed only by resolution of the Board of County Commissioners. The County may adopt more restrictive guidelines than those of the Authority. Notwithstanding anything stated herein to the contrary, the PACE materials, including the Authority's program guidelines, shall be fully consistent with applicable County, state and federal laws. 11. Prepayment penalties. To the extent that the Authority may charge or impose prepayment penalties, for commercial and industrial properties, the Authority may not allow or charge any prepayment penalties except in the case when an assessment is paid off in full within five (5) years after the effective date of financing agreement with the property owner. Where the Authority may charge or impose prepayment penalties for commercial and industrial properties, the Authority shall offer and inform property owners of the Authority's hardship exception, for instances where a commercial and industrial property owner becomes disabled or deceased. Any such prepayment penalties, as well as information about the hardship exception, shall be clearly disclosed within all property owner financing agreements and in all PACE materials, including but not limited to program guidelines, program rules, consumer agreements, and consumer informational documents. For commercial and industrial properties, prepayment penalties may be charged or imposed by the Authority to the extent permitted by law. 11.G.2 Packet Pg. 364 Attachment: Membership Agreement - 031819.docx (9066 : PACE Program) [16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 3 12. Disclosures. The PACE materials, including but not limited to the Financing Agreement with the property owner, consumer agreement, and program guidelines, shall clearly disclose, in plain language, the fixed interest rate to be charged, including points, as well as any and all fees or penalties, that may be separately charged to the property owner, including prepayment penalties for commercial and industrial properties, and potential late fees. To the extent that additional fees are not specifically disclosed in a written agreement with the properly owner, the subsequent charging or collecting of any such additional fees by the Authority or its agents, administrators, or subcontractors shall be prohibited. The Authority shall place the following sentence or similar language (without the County's logo) on all customer communications and agreements: Please be aware that Collier County government is not operating or administering the PACE program in any way. All contractual PACE agreements are between property owners and the Authority, a non-County entity. All questions and concerns about this PACE Program should therefore be addressed to: [Authority contact / remedy information]. 13. Consumer Assistance. In order to assist those persons who may have difficulty reading or understanding the PACE materials, such as the Financing Agreement, program guidelines and other consumer agreements, the Authority shall provide optional one-on-one assistance regarding the Authority Program, program terms, program process, program documents, and all other pertinent information. Information regarding this option for personal assistance shall be printed in English, Spanish, and Haitian Creole on PACE promotional materials. 14. Disclosures related to lenders. While the Authority will provide required forms for lender notification, the Authority shall make clear that the ultimate responsibility for addressing issues with existing lenders remains with property owners. A statement to this effect should be placed in the PACE materials, including all agreements with the property owner. In addition, the PACE materials, including all agreements with the property owners, shall include a statement that strongly urges the property owner to increase monthly escrow immediately after financing is released. 15. Administrative Fees. The County may impose administrative fees to cover the County's administrative costs related to this Agreement. Such administrative fees may be established by the Collier County Board of County Commissioners, by separate action, and shall be charged to the Authority. The County shall provide written notice to the Authority of any proposed legislative changes to the PACE program via electronic transmission or US Mail no later than five (5) days prior to the public hearing on the proposed legislative changes. 16. Responsibilities of the Authority. The Authority shall be solely responsible for all matters associated with origination, funding, financing, and administration of each of the Authority's authorized non-ad valorem assessments, including responding to any complaints or inquiries by participants, tax certificate holders, lenders or others relating to the special assessments, the financing agreements, the qualifying improvements, or any other aspect of the Program. 17. Survival of Assessments. During the term of this Agreement, the Authority may, on a non- exclusive basis, levy voluntary non-ad valorem special assessments on participating properties within the boundaries of Unincorporated Collier County to help finance the costs of Qualifying Improvements for those individual properties. Those properties receiving financing for Qualifying 11.G.2 Packet Pg. 365 Attachment: Membership Agreement - 031819.docx (9066 : PACE Program) [16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 4 Improvements shall be assessed from time to time, in accordance with Section 163.08, Florida Statutes, and other applicable law. Notwithstanding termination of this Agreement or notice of a change in boundaries by County as provided for herein, those properties that have received financing for Qualifying Improvements shall continue to be a part of the Authority, until such time that all outstanding debt has been satisfied. 18. Term. This Agreement shall remain in full force and effect from the date of its execution by both Parties. Any Party may terminate this Agreement for convenience upon ninety (90) days prior written notice (“Termination Notice"). Beginning on the date the Authority receives a Termination Notice from the County ("Termination Date"), the Authority shall not approve any new applications affecting property within the legal boundaries of the Unincorporated Collier County referenced in the Termination Notice. Notwithstanding termination of this Agreement, however, property owners whose, applications were approved prior to the Termination Date, and who received funding through the Program, shall continue to be a part of the Authority, for the sole purpose of paying their outstanding debt, until such time that all outstanding debt has been satisfied. 19. Kick-Back Policy. PACE programs shall have and shall strictly enforce anti-kickback policies and procedures that prohibit direct financial or other monetary incentives to contractors in exchange for or related to such contractor being awarded work under a PACE program, excepting payment for the contractor's installation of eligible improvements. 20. Termination for cause. In the event that Collier County determines that the Authority has violated any of the terms of this Agreement, the County shall terminate this Agreement for cause via written notice to the Authority. 21. Consent. This Agreement, together with the resolution by the Collier County Board of County Commissioners approving this Agreement, shall be considered the Parties consent to authorize the Authority within Unincorporated Collier County, as required by Section 163.08, Florida Statutes. 22. County Coordinator. The County Manager or his/her designee shall serve as the County's primary point of contact and coordinator. 23. County Responsibility. Collier County shall have no responsibility for the payment of Authority fees or the Authority’s third party administrator fees, of any kind, including but not limited to termination fees, Opt-in fee, maintenance fee, or Opt-out fees. In the event that fees become due, the Authority shall pay any and all associated costs within 30 calendar days. If Authority membership is required, County shall also be a non-voting member of the Authority. 24. Carbon or Similar Credits. In the event that the Financing Agreement or any other PACE agreement with the property owner provides for transfer of any carbon or similar mitigation credits derived from Qualifying improvements to the Authority, any such carbon or similar mitigation credits derived from Unincorporated Collier County, shall be shared in equal parts between the Authority and Collier County. 25. Contingency Plans. In the event that Florida's PACE statute is found to be unlawful, struck down by a court, or if the PACE assessments are determined by a court to not be special assessments, 11.G.2 Packet Pg. 366 Attachment: Membership Agreement - 031819.docx (9066 : PACE Program) [16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 5 the Authority agrees and acknowledges that Collier County may not be able to place PACE assessments on the tax rolls or collect PACE assessments, and that such a determination shall be made in the sole discretion of Collier County. 26. Bonds. The Authority is not authorized to issue bonds, or any other form of debt, on behalf of Collier County. To the extent that the Authority issues bonds under its own authority in connection with this Agreement, the pledge will be based on the PACE assessments, and the County shall not be obligated in any way. For any such bonds, the bond disclosure document, if any, shall include references to the fact that Collier County is not an obligated party. 27. Opinion of Bond Counsel. Prior to the effective date of this Agreement, the Authority shall deliver to the County an "Opinion of Bond Counsel" stating that, based on counsel's review of the bond validation judgment and the underlying bond documents, the Program's structure complies with the bond validation judgment and the underlying bond documents. The Authority acknowledges that the County is relying on the Opinion of Bond Counsel in its decision to execute this Agreement. 28. Resale or Refinancing of a Property. The Authority recognizes that some lenders may require full repayment of the Program's non-ad valorem assessments upon resale or refinancing of a property. The Authority agrees to provide written disclosure of this matter in all PACE materials, including, but not limited to, the Financing Agreement with the property owner, consumer agreement, program guidelines, and promotional materials. 29. Agents of Authority. The Authority shall ensure that its agents, administrators, subcontractors, successors, and assigns are, at all times, in compliance with the terms of this Agreement and applicable County, state and federal laws. County shall provide written notice to the Authority of any proposed legislative changes to the PACE program via electronic transmission or US Mail no later than five (5) days prior to the public hearing on the proposed legislative changes. 30. Notices. Any notices to be given hereunder shall be in writing and shall be deemed to have been given if sent by hand delivery, recognized overnight courier (such as Federal Express), or by written certified U.S. mail, with return receipt requested, addressed to the Party for whom it is intended, at the place specified. For the present, the Parties designate the following as the respective places for notice purposes: If to the Authority: (Insert contact information) If to County: County Manager 3299 Tamiami Trail East, Suite 202 Naples, FL 34112 11.G.2 Packet Pg. 367 Attachment: Membership Agreement - 031819.docx (9066 : PACE Program) [16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 6 With a copy to: County Attorney 3299 Tamiami Trail East, Suite 800 Naples, FL 34112 31. Amendments. No modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this agreement and executed by the Collier County Board of County Commissioners and the Authority. 32. Joint Effort. This Agreement has been a joint effort of the Parties hereto and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the Parties than the other. 33. Merger. This Agreement represents the final and complete understanding of the Parties regarding the subject matter hereof and supersedes all prior and contemporaneous negotiations, correspondence, agreements, or understandings applicable to the matters contained herein; and the Parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the Parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 34. Assignment. The respective obligations of the Parties set forth in this Agreement shall not be assigned, in whole or in part, without the written consent of the other Party hereto. 35. Third Party Beneficiaries. Neither the County nor the Authority intends to directly or substantially benefit a third party by this Agreement. Therefore, the Parties acknowledge that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a right or claim against either of them based upon this Agreement. 36. Records. The Parties shall each maintain their own respective records and documents associated with this Agreement in accordance with the requirements for records retention set forth in Chapter 119, Florida Statutes. 37. Severability. In the event a portion of this Agreement is found to be unenforceable by a court of competent jurisdiction, that part shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect. 38. Administrator Indemnification. Any and all administrators of the Authority shall be required to execute a separate indemnification agreement with the County. The Authority acknowledges and agrees that as of the execution of this Agreement, ___________________________ is the only administrator for the Authority, and that ______________________________________ has executed the separate indemnification agreement with Collier County for the benefit of the County. If the Authority changes its administrator, the Authority shall ensure that any and all administrators also provide the County with a separate indemnification agreement, on a form to be approved by the County Attorney's Office, within 10 business days of assuming administrative responsibilities for the Authority. 11.G.2 Packet Pg. 368 Attachment: Membership Agreement - 031819.docx (9066 : PACE Program) [16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 7 39. Effective Date. This Agreement shall become effective upon the execution by both Parties hereto. 40. Law, Jurisdiction, and Venue. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the state of Florida. The Parties agree that the exclusive venue for any lawsuit arising from, related to, or in connection with this Agreement shall be in the state courts of the Twentieth Judicial Circuit in and for Collier County, Florida, the United States District Court for the Middle District of Florida or United States Bankruptcy Court for the Middle District of Florida, as appropriate. 41. Indemnification. To the maximum extent permitted by Florida law, the Authority shall indemnify and hold harmless Collier County, its officers, agents and employees from any and all claims, liabilities, damages, losses, costs, and causes of action which may arise out of an act, omission, including, but not limited to, reasonable attorneys’ fees and paralegals’ fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Authority or any of its agents, officers, servants, employees, contractors, patrons, guests, clients, licensees, invitees, or any persons acting under the direction, control, or supervision of the Authority in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph. The Authority shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits in the name of Collier County and shall pay all costs (including attorney’s fees) and judgments which may issue thereon. This Indemnification shall survive the termination and/or expiration of this Agreement. This section does not pertain to any incident arising from the sole negligence of Collier County. The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the limits set forth in Section 768.28, Florida Statutes. This Section shall survive the expiration of termination of this agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Attest COLLIER COUNTY, FLORIDA 11.G.2 Packet Pg. 369 Attachment: Membership Agreement - 031819.docx (9066 : PACE Program) [16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 8 Crystal K. Kinzel, Clerk By: __________________________ By: __________________________ ______________________________ ______________________________ Witness Name _______________________________ ______________________________ Name and Title Title ____________________________ By: __________________________ _____________________________ Name _____________________________ Title Approved as to form and legality: _____________________________ 11.G.2 Packet Pg. 370 Attachment: Membership Agreement - 031819.docx (9066 : PACE Program)