Resolution 2020-198 RESOLUTION NO. 2020 -1 9 8
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS AMENDING RESOLUTION NO.
2019-123 BY APPROVING THE REVISED STANDARD
MEMBERSHIP AGREEMENT FOR PACE PROVIDERS.
WHEREAS, on July 9, 2019, the Board of County Commissioners (Board) adopted
Resolution No. 2019-123 which re-established the Property Assessment Clean Energy (PACE)
financing program pursuant to Section 163.08, Fla. Stat., with participation limited to
commercial, industrial, and commercial multifamily property owners in Collier County; and
WHEREAS, Exhibit A attached to Resolution No. 2019-123 contains a standard form
membership agreement for PACE providers who wish to operate in Collier County; and
WHEREAS, some of the PACE providers requested changes to the approved standard
membership agreement; and
WHEREAS, the Board desires to revise its standard membership agreement for PACE
providers to add the requested changes.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA that the Board hereby amends
Resolution No. 2019-123 by replacing Exhibit "A" attached thereto with the revised Standard
Membership Agreement attached herewith as Exhibit"A".
This Resolution adopted upon majority vote this"day of ej Wei , 2020.
ATTEST: =- BOARD OF COUNTY COMMISSIONERS
CRYSi AL K. RINZEL, CLERK COLLIER COUNTY, FLORIDA
`t By: /44€41‘/....,e4e60.00--
Attest as to ChairmDan seputy Clerk Burt L. Saunders, Chairman
signature onty.
Approved as to form and legality:
Derek D. Perry tip
Assistant County Attorney 0\'.P
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CA0
"EXHIBIT A"
STANDARD MEMBERSHIP AGREEMENT BETWEEN
AND COLLIER COUNTY
This Agreement ("the Agreement") is entered into this day of , 20_ 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 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
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.
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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 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:
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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 the option of one-on-one for personal
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 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
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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.
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. PACE
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assessments shall be levied and collected subject to the provisions in the aforementioned
agreements with the Tax Collector and Property Appraiser.
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
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
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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
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
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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
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.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written
above.
Attest: COLLIER COUNTY, FLORIDA
CRYSTAL K. KINZEL, CLERK
By: By:
Name
Title
[NAME OF AUTHORITY]
Witness
By:
Name and Title
Name
Title
Approved as to form and legality:
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