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Florida PACE Funding Agency INSTR 5953517 OR 5844 PG 2001 RECORDED 11/13/2020 3:49 PM PAGES 10 CLERK OF THE CIRCUIT COURT AND COMPTROLLER COLLIER COUNTY FLORIDA REC$86.50 "EXHIBIT A" STANDARD MEMBERSHIP AGREEMENT BETWEEN FLORIDA PACE FUNDING AGENCY AND COLLIER COUNTY 111\ This Agreement ("the Agreement") is entered into this Lr1 day o 20 by and between the Florida PACE Funding Agency, a public body corporate and politic (the "Agency") 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 commercial multifamily properties. 2. Qualifying Improvements.The Agency may provide the financing of"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 Agency 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 Agency. 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 Agency.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 Agency and not by the County. 5. Agreements with Tax Collector and Property Appraiser. This Agreement shall be subject to the express condition precedent that Agency 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 Agency 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. Pace Standard Agreement Rev.9/30/20 1 (--(10, \ 1 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 Program. For purposes of the PACE Program authorized by this Agreement, the boundaries of the Agency 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 Agency. 8. Properties. Within the Unincorporated area of Collier County, commercial, industrial, and commercial multifamily properties may be eligible. Residential single family detached, single family attached,and townhouse structures,as defined by the Florida Building Code, Residential, are not eligible for the PACE program within the unincorporated area of Collier County. 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 Agency 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 Agency to establish and maintain such consistency. County shall provide written notice to the Agency 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 Agency. 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 Agency. Notwithstanding anything stated herein to the contrary,the PACE materials, including the Agency's program guidelines,shall be fully consistent with applicable County, state and federal laws. 11. 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 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, industrial, and commercial multifamily properties, and potential late fees. To the extent that additional fees are not specifically disclosed in a written agreement with the property owner, the subsequent charging or collecting of any such additional fees by the Agency or its agents,administrators,or subcontractors shall be prohibited.The Agency shall place the following sentence or similar language (without the County's logo) on all-customer communications and agreements: Pace Standard Agreement Rev.9/30/20 2 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 Agency,a non-County entity.All questions and concerns about this PACE Program should therefore be addressed to: [Agency contact/remedy information]. 12. 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 Agency shall provide optional one-on-one assistance regarding the Agency Program, program terms, program process, program documents, and all other pertinent information. Information regarding the option of one-on-one assistance shall be printed.Printed literature must be available,upon request,in English,Spanish,and Haitian Creole on PACE promotional materials. 13. Disclosures related to lenders. While the Agency will provide required forms for lender notification,the Agency 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. 14. 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 Agency. The County shall provide written notice to the Agency 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. 15. Responsibilities of the Agency.The Agency shall be solely responsible for all matters associated with origination,funding,financing, and administration of each of the Agency'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. 16. Survival of Assessments. During the term of this Agreement,the Agency 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 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 Agency, until such time that all outstanding debt has been satisfied. 17. 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 Agency receives a Termination Notice from the County("Termination Date"),the Agency shall not approve any new applications Pace Standard Agreement Rev.9/30/20 3 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 Agency,for the sole purpose of paying their outstanding debt,until such time that all outstanding debt has been satisfied. 18. 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. 19. Termination for cause. In the event that Collier County determines that the Agency has violated any of the terms of this Agreement, the County shall terminate this Agreement for cause via written notice to the Agency. 20. 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 Agency within Unincorporated Collier County,as required by Section 163.08,Florida Statutes. 21. County Coordinator.The County Manager or his/her designee shall serve as the County's primary point of contact and coordinator. 22. County Responsibility.Collier County shall have no responsibility for the payment of Agency fees or the Agency'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 Agency shall pay any and all associated costs within 30 calendar days. If Agency membership is required, County shall also be a non-voting member of the Agency. 23. 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 Agency, any such carbon or similar mitigation credits derived from Unincorporated Collier County, shall be shared in equal parts between the Agency and Collier County. 24. 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, the Agency 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. 25. Bonds.The Agency is not authorized to issue bonds,or any other form of debt,on behalf of Collier County.To the extent that the Agency issues bonds under its own Agency 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. PACE assessments shall be levied and collected subject to the provisions in the aforementioned agreements with the Tax Collector and Property Appraiser. Pace Standard Agreement Rev.9/30/20 4 '^+` 26. Opinion of Bond Counsel. Prior to the effective date of this Agreement,the Agency 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 Agency acknowledges that the County is relying on the Opinion of Bond Counsel in its decision to execute this Agreement. 27. Resale or Refinancing of a Property. The Agency recognizes that some lenders may require full repayment of the Program's non-ad valorem assessments upon resale or refinancing of a property. The Agency 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. 28. Agents of Agency. The Agency 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 Agency 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. 29. 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 Agency: Florida PACE Funding Agency c/o Michael Moran 4411 Bee Ridge Rd #134 Sarasota Fl 34233 If to County: County Manager 3299 Tamiami Trail East,Suite 202 Naples, FL 34112 With a copy to: County Attorney 3299 Tamiami Trail East,Suite 800 Naples, FL 34112 30. 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 Agency. Pace Standard Agreement Rev.9/30/20 5 (T) 31. 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. 32. 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. 33. 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. 34. Third Party Beneficiaries. Neither the County nor the Agency 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. 35. 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. 36. 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. 37. Administrator Indemnification. Any and all administrators of the Agency shall be required to execute a separate indemnification agreement with the County. The Agency acknowledges and agrees that as of the execution of this Agreement,Counterpointe Energy Solutions(FL) LLC Is the only administrator for the Agency,and that Counterpointe Energy Solutions(FL)LLC has executed the separate indemnification agreement with Collier County for the benefit of the County. If the Agency changes its administrator, the Agency 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 Agency. 38. Effective Date.This Agreement shall become effective upon the execution by both Parties hereto. 39. 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. Pace Standard Agreement Rev.9/30/20 6 40. Indemnification. To the maximum extent permitted by Florida law, the Agency 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 Agency 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 Agency 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 Agency 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. Pace Standard Agreement Rev.9/30/20 7 r' '` IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Attest .Boa►rd of. Coun ty .Ceaai s s i one rs CRYSTAL K.KINZEL,CLERK Collier County, Florida By: N 1� By: y-l -*-�.....,�-"?"_-, Name//// Na / / [/e,kit) ef,-1 I�-FH C)jY/— !(C'4, Title J e As Designee of the County Manager Pursuant to Resolution No. 2020— � '-\. Florida PACE Funding Agency Witness ..>.- e-c,z.':. \—. ,sc:\,..., - v<111:-,,.. 1,,,, ,,r- By: /' .1r— Name and Title \c,�cued.. M,-cup-c. Name Title proved as to form and legality: 3 Derek D. Perry A--(--- --a-------- Assistant County Attorney Pace Standard Agreement Rev.9/30/20 8 (Zi Exhibit B AGREEMENT BETWEEN COUNTERPOINTE ENERGY SOLUTIONS (FL)LLC, THIRD PARTY ADMINISTRATOR FOR THE FLORIDA PACE FUNDING AGENCY, AND COLLIER COUNTY This Agreement(this"Agreement")is entered into this / day of C°c. 2020 by and between Counterpointe Energy Solutions (FL) LLC,the third party administrator of the Florida PACE Funding Agency, and Collier County, a political subdivision of the State of Florida (the "County") (collectively,the "Parties"). WHEREAS, Collier County and the Florida PACE Funding Agency have proposed to enter into an agreement to authorize the Florida PACE Funding Agency to operate within the boundaries of Unincorporated Collier County for the purposes of providing a Commercial Property Assessed Clean Energy (PACE)program; and WHEREAS, Counterpointe Energy Solutions (FL) LLC is the third-party administrator for the Florida PACE Funding Agency, and Counterpointe Energy Solutions (FL) LLC would be operating on behalf of the Florida PACE Funding Agency within Unincorporated Collier County; and WHEREAS, Counterpointe Energy Solutions (FL)LLC is a Delaware limited liability company; and WHEREAS, Counterpointe Energy Solutions (FL)LLC has agreed to provide Collier County with a separate indemnification agreement for the benefit of Collier County, Collier County and Counterpointe Energy Solutions (FL)LLC hereby enter into the following Agreement: 1. The foregoing recitals are incorporated into this Agreement and approved. 2. Counterpointe Energy Solutions(FL)LLC shall indemnity and hold harmless the County and its officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorneys' fees and costs of defense, which the County or its officers,employees,agents or instrumentalities may incur as a result of claims,demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this Agreement by Counterpointe Energy Solutions (FL) LLC, or its employees, agents, servants, partners, principals, administrators, subcontractors,or agents. Counterpointe Energy Solutions(FL)LLC,shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature in the name of the County, where applicable, including appellate proceedings, and shall pay all costs,judgments, and attorney's fees which may issue thereon. Counterpointe Energy Solutions (FL) LLC expressly understands and agrees that any insurance protection shall in no way limit the responsibility to indemnify, keep and save harmless and defend the County or its officers, employees, agents and instrumentalities as herein provided. 3. 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. IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date first written above. A"1-11,ST: BOARD OF COUNTY COMMISSIONERS CRYSTAL K. KINZEL, CLERK COLLIER COUNTY,FLORIDA Mtn Deputy Clerk Na•� --- ata/Tti t le rd not Es �1- As Designee of. the County -Manager Pursuant to Resolution No. 2020— COUNTERPOINTE ENERGY SOLUTIONS (FL)LLC By: • rintName: Kt c 1/47. Lid 1 Print Title: 'Of Approved as to Fora and Legality' 'e)j-1-"C"4 - rJ erek D. Perry Assistant County Attorney