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Agenda 09/12/2023 Item #16J 1 (Approve the request to send a "Cease and Desist" letter to Florida PACE funding agency for operating in Collier County in conflict with Board Policy)09/12/2023 EXECUTIVE SUMMARY Recommendation to approve the request by the Collier County Tax Collector and the Collier County Property Appraiser that the Board of County Commissioners direct the County Attorney to send a “Cease and Desist” letter to Florida PACE Funding Agency for operating in Collier County in conflict with Board policy. OBJECTIVE: To approve a request by the Collier County Tax Collector and the Collier County Property Appraiser for the County Attorney to send a “Cease and Desist” letter to Florida PACE Funding Agency (FPFA) for operating in Collier County in conflict with their Membership Agreement and Board policy. CONSIDERATIONS: The PACE financing program was authorized to operate throughout unincorporated Collier County through Resolution 2017-130 (attached). After numerous allegations of unfair business practices and predatory lending, the Board of County Commissioners (Board), through Resolution 2019-123 (attached), repealed Resolution 2017-130 in its entirety and established a new PACE financing program throughout unincorporated Collier County limited to “Commercial, Industrial, and Commercial Multi-family properties”, thus eliminating single family residential properties. After the adoption of Resolution 2019-123 FPFA was party to, and signed, a “Standard Membership Agreement between Florida PACE Funding Agency and Collier County” (attached) wherein FPFA agrees to limit their lending to Commercial, Industrial, and Commercial Multi-family only. Of special interest is paragraph number eight (8) of the Standard Membership Agreement where it specifically states, “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”. Throughout the State of Florida, FPFA has been operating in jurisdictions that have given no authorization, through an interlocal agreement, or where the governing body has specifically declared that they would not allow a PACE provider to operate in their respective jurisdiction(s). FPFA is operating in Collier County in conflict with Resolution 2019-123. The Collier County Tax Collector accessed the Clerk of Court’s website and searched Official Records for “Florida PACE Funding Agency” and found numerous liens recorded for improvements on residential properties recorded in the last year. One example of a lien placed on a property in the past year is as follows: • Single Family residence in Golden Gate City (Market Value: $316K: Land=$200K, Improvements = $116K • PACE loan provided by YGrene in 2018 • Yearly cost for YGrene improvements (15 years at 7.25%) $3,417+ • 2022 Tax notice paid: $4,233+ • Additional PACE loan provided by FPFA in 2023 of $46,302+ at 8.99% for 30 years • Yearly cost for FPFA improvements: $4,502+ • 2023 estimated Tax notice: $8,735+ The Collier County Tax Collector is charged with the collection of taxes and non-ad valorem assessments. FPFA is not in compliance with the signed Membership Agreement or Resolution 2019-123, therefore, the Collier County Tax Collector’s office will not collect FPFA assessments on residential properties that do not comply with the Resolution; in effect, enforcing the resolution. 16.J.1 Packet Pg. 1204 09/12/2023 For the reasons detailed above, the Collier County Tax Collector and the Collier County Property Appraiser are requesting a “Cease and Desist” letter be sent to FPFA as soon as possible. A copy of the “Cease and Desist” letter sent by Lee County has been provided, as an attachment, as an example of what several Florida counties have sent regarding FPFA’s operations. FISCAL IMPACT: There is no fiscal impact related to this request. Should FPFA continue operating outside of their signed Membership Agreement and the Board’s Resolution, additional actions may be required, and the related fiscal impact will be determined for future Board approval. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this request. 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: That the Board approves the request by the Collier County Tax Collector and the Collier County Property Appraiser that the Board of County Commissioners direct the County Attorney to send a “Cease and Desist” letter to Florida PACE Funding Agency for operating in Collier County in conflict with their Membership Agreement and Board policy. Prepared by: Amy Patterson, County Manager on behalf of: Rob Stoneburner, Collier County Tax Collector and Abe Skinner, Collier County Property Appraiser ATTACHMENT(S) 1. Resolution 2017-130 (PDF) 2. PACE Resolution 2019-123 (PDF) 3. FPFA_Agreement_2020_Instrument_5953517 (PDF) 4. Lee County C&D letter (PDF) 16.J.1 Packet Pg. 1205 09/12/2023 COLLIER COUNTY Board of County Commissioners Item Number: 16.J.1 Doc ID: 26548 Item Summary: Recommendation to approve the request by the Collier County Tax Collector and the Collier County Property Appraiser that the Board of County Commissioners direct the County Attorney to send a “Cease and Desist” letter to Florida PACE Funding Agency for operating in Collier County in conflict with Board policy. Meeting Date: 09/12/2023 Prepared by: Title: Management Analyst II – County Manager's Office Name: Geoffrey Willig 09/06/2023 11:16 AM Submitted by: Title: Deputy County Manager – County Manager's Office Name: Amy Patterson 09/06/2023 11:16 AM Approved By: Review: Office of Management and Budget Geoffrey Willig Level 3 OMB Gatekeeper Review Skipped 09/06/2023 11:12 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 09/06/2023 11:36 AM County Manager's Office Amy Patterson Level 4 County Manager Review Completed 09/06/2023 2:10 PM Board of County Commissioners Geoffrey Willig Meeting Pending 09/12/2023 9:00 AM 16.J.1 Packet Pg. 1206 RESOLUTION NO. 2017 -13 0 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, ESTABLISHING THE PROPERTY ASSESSMENT CLEAN ENERGY PACE)PROGRAM WITHIN THE UNINCORPORATED AREA OF COLLIER COUNTY, AND APPROVING A STANDARD FORM AGREEMENT WITH PACE PROVIDERS. WHEREAS, individual residents of Collier County may wish to improve energy efficiency, install energy improvements or retrofits, wind resistance/wind hardening measures, and improve water conservation for residential, commercial or industrial properties; and WHEREAS, one way to facilitate such improvements to real property is through a Property Assessment Clean Energy (PACE) financing program pursuant to Section 163.08, Florida Statutes; and WHEREAS, a PACE financing program is a financing structure by which commercial or residential property owners may voluntarily opt into a special assessment district to receive a loan to finance energy improvements and retrofits, where those loans are repaid through an annual assessment on the property owner's property tax bill; and WHEREAS, a number of entities created, pursuant to Section 163.01 (7) Florida Statutes, may be interested in operating a PACE program within Collier County, and the County may not need to limit the number of PACE providers operating within the County; and WHEREAS, having a number of different providers that operate PACE programs in Collier County may foster competition and provide more choices to property owners; and WHEREAS, PACE providers that have been created under Section 163.01(7) Florida Statutes are considered local governments, and the County may select from those PACE providers and enter into agreements with the selected providers, without proceeding with a solicitation; and WHEREAS, such County agreements with PACE providers shall include County requirements and protections; and WHEREAS, such County agreements with PACE providers shall also require PACE providers to acknowledge the County's role in authorizing PACE in unincorporated Collier County, while still making it clear to consumers that the County is not operating any PACE program; and 16-TRN-00321/1343772/1]185 Page 1 oft 6/7/17 16.J.1.a Packet Pg. 1207 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: 1.The Board approves the establishment of a PACE program within the unincorporated area of Collier County for residential, commercial and industrial properties. 2.It is the intent of this Board to enter into agreements with multiple PACE providers, specifically entities created pursuant to Section 163.01(7), Florida Statutes, who may wish to operate a PACE program within Collier County to foster competition and create additional choices for property owners. 3.The Board approves the standard form membership agreement attached as Exhibit A to this Resolution and directs staff to bring back executed membership agreements substantially in the form attached as Exhibit A. BE IT FURTHER RESOLVED that this Resolution be recorded in the minutes of this Board and filed with the County Clerk's Office. This Resolution adopted after motion, second and majority vote favoring same thisill day of:Su Iy 2017. ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, CLERK COLLIE' 20 TY, FLORIDA, z) . - 4: , V V 11 By: Attest o Chairman's Deput_;clerk Penny T. r r, Chairm Jr signature only. t App oved as to form • d legality: L eidi Ashton-Cicko u` Managing Assistant County Attorney 16-TRN-00321/1343772/1]185 Page 2 of2 6/7/17 16.J.1.a Packet Pg. 1208 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) STANDARD MEMBERSHIP AGREEMENT BETWEEN AND COLLIER COUNTY This Agreement ("the Agreement") is entered into this day of , 2017 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 residential, commercial, and industrial 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. 16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 1 0 16.J.1.a Packet Pg. 1209 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) 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, residential, commercial, and industrial 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. The Authority shall not charge or impose a prepayment penalty on residential property. 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 16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 2 1) 16.J.1.a Packet Pg. 1210 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) consumer informational documents. For commercial and industrial properties, prepayment penalties may be charged or imposed by the Authority to the extent permitted by law. 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. 16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 3 16.J.1.a Packet Pg. 1211 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) 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 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 i 16-TR N-00321/1343773/1j 186 Pace Standard Agreement 6/7/17 4 16.J.1.a Packet Pg. 1212 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) 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, 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) 16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 5 16.J.1.a Packet Pg. 1213 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) 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 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 16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 6 16.J.1.a Packet Pg. 1214 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) 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. 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. 16-TRN-00321/1343773/1]186 Pace Standard Agreement 6/7/17 7 16.J.1.a Packet Pg. 1215 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Attest COLLIER COUNTY, FLORIDA Dwight E. Brock, Clerk By: By: Witness Name Name and Title Title By: Name Title Approved as to form and legality: 16-TRN-00321/1343773/1}186 Pace Standard Agreement 6/7/17 8 16.J.1.a Packet Pg. 1216 Attachment: Resolution 2017-130 (26548 : FPFA Cease and Desist) RESOLUTION NO. 2019 - 12 3 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, REPEALING AND REPLACING RESOLUTION NO. 2017-130 BY ESTABLISHING A NEW PACE PROGRAM WITHIN COLLIER COUNTY LIMITED TO COMMERCIAL, INDUSTRIAL, AND COMMERCIAL MULTIFAMILY PROPERTIES, AND APPROVING A NEW STANDARD FORM AGREEMENT WITH PACE PROVIDERS. WHEREAS, on July 11, 2017 the Board of County Commissioners, through Resolution No. 2017-130 established the Property Assessment Clean Energy (PACE) financing program pursuant to Section 163.08, Florida Statutes; and WHEREAS, at its May 28, 2019 Regular Meeting the Board of County Commissioners voted to terminate the PACE program due to concerns raised as to its negative effects on certain residential properties; and WHEREAS, the Board wishes to reestablish the Property Assessment Clean Energy PACE)financing program pursuant to Section 163.08,Florida Statutes,but limit it to commercial, industrial, and commercial multifamily property owners of Collier County. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA,that: 1. Resolution No. 2017-130 is hereby repealed in its entirety. 2. The Board hereby reestablishes the PACE program within the unincorporated area of Collier County for commercial, industrial, and commercial multifamily properties only. 3. Residential single family detached, single family attached, and townhouse structures, as defined by the Florida Building Code, Residential, shall not be eligible for the PACE program within the unincorporated area of Collier County. 4. It is the intent of this Board to enter into agreements with multiple PACE providers, specifically entities created pursuant to Section 163.01(7), Florida Statutes, who may wish to operate a PACE program within Collier County to foster competition and create additional choices for property owners. Page 1 of 2 16.J.1.b Packet Pg. 1217 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) 5. The Board approves the standard form membership agreement attached as Exhibit A to this Resolution and authorizes the County Manager, or designee, to approve executed membership agreements. BE IT FURTHER RESOLVED that this Resolution be recorded in the minutes of this Board and filed with the County Clerk's Office. This Resolution adopted after motion, second and majority vote favoring same this 9th day of July, 2019. ATTEST, , cd, i 4 BOARD OF COUNTY COMMISSIONERS CRY, `4' L• K.•I EL, CLERK COLLIER CO,ARIDA a ICS 4. 6e)OP By: ry eAt@St .: ; ,• 5 Clerk Wi /am L. McDaniel, Jr., Cha rman Appro •d : i• ti.-, .no legality: 4 Jeffre I, 1. z ow, County Attorney 1 Page 2 of 2 16.J.1.b Packet Pg. 1218 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) EXHIBIT A" 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, commercial multifamily 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. Pace Standard Agreement 7/09/2019 1 16.J.1.b Packet Pg. 1219 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) 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 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 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. 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, 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 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: Pace Standard Agreement 7/09/2019 2 16.J.1.b Packet Pg. 1220 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) 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]. 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 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. 13. 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. 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 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. 15. 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. 16. 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 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. 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 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, Pace Standard Agreement 7/09/2019 3 16.J.1.b Packet Pg. 1221 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) 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. 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 Authority has violated any of the terms of this Agreement, the County shall terminate this Agreement for cause via written notice to the Authority. 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 Authority 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 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. 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 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. 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 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. 25. 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. 26. 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 Pace Standard Agreement 7/09/2019 4 16.J.1.b Packet Pg. 1222 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) 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 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. 28. 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. 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 Authority: Insert contact information) 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 Authority. 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 Pace Standard Agreement 7/09/2019 5 16.J.1.b Packet Pg. 1223 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) 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 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. 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 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. 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. 40. 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 Pace Standard Agreement 7/09/2019 6 16.J.1.b Packet Pg. 1224 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) 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 Dwight E. Brock, Clerk By:By: Witness Name Name and Title Title By: Name Title Approved as to form and legality: Pace Standard Agreement 7/09/2019 7 16.J.1.b Packet Pg. 1225 Attachment: PACE Resolution 2019-123 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1226 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1227 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1228 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1229 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1230 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1231 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1232 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1233 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1234 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.c Packet Pg. 1235 Attachment: FPFA_Agreement_2020_Instrument_5953517 (26548 : FPFA Cease and Desist) 16.J.1.dPacket Pg. 1236Attachment: Lee County C&D letter (26548 : FPFA Cease and Desist) 16.J.1.dPacket Pg. 1237Attachment: Lee County C&D letter (26548 : FPFA Cease and Desist)