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COUNTY OF OAKLAND, MICHIGAN
PACE PROGRAM
November 10, 2016
TABLE OF CONTENTS
Page
Executive Summary .....................................................................................................................3
Lean & Green Michigan™ PACE Program Report.....................................................................4
APPENDIX A – PACE Special Assessment Agreement ............................................................12
APPENDIX B – PACE Program Application .............................................................................27
APPENDIX C – Program Eligibility Checklist ...........................................................................33
APPENDIX D – PACE Special Assessment Parcel ....................................................................35
APPENDIX E – PACE Special Assessment Roll........................................................................36
APPENDIX F – Payment Schedule .............................................................................................37
APPENDIX G – Lender Consent and Acknowledgement .........................................................38
APPENDIX H – Description of Improvements ...........................................................................40
APPENDIX I – Source of Private Financing ...............................................................................41
Lean & Green Michigan™
PACE Program
Executive Summary
Public Act No. 270 of 2010 (“Act 270”) authorizes local units of government to adopt Property
Assessed Clean Energy (“PACE”) programs to promote the installation of energy efficiency
improvements and renewable energy systems by owners of commercial or industrial property within
a district designated by the local unit of government. Act 270 allows private commercial lenders to
finance energy projects; authorizes local units of government to issue bonds, notes and other
indebtedness; and authorizes the assessment of properties for the cost of the energy projects. Act
270 provides for repayment to the local unit of government or the private lender through a
voluntary property assessment. The property assessment remains with the property and has the
same priority as other property tax and assessment liens in the event of foreclosure.
Lean & Green MichiganTM (“LAGM”) has developed a collaborative approach to PACE programs for
local units of government by standardizing the administrative and legal process under which PACE
programs are created and managed. Many local units of government throughout the state joined have
or are in the process of joining LAGM utilizing a “shared services” approach to eliminate upfront and
ongoing program costs and duplication. Further, this approach creates one efficient statewide market,
allowing property owners, lenders and clean energy contractors to utilize a standardized process as
they employ PACE financing in multiple jurisdictions throughout the state.
This documentation package includes the report required by Section 9 of Act 270 and provides model
forms of documents for the PACE program. As many of the details of a PACE transaction are
determined on a project-specific basis, adjustments to the model documents may be required to fit a
particular transaction. Additionally, there are several blanks left in the documents that should be
filled in when the corresponding information is known.
OAKLAND COUNTY, MICHIGAN
PACE PROGRAM REPORT
This Lean & Green Michigan™ PACE Program Report contains the information required by
Section 9 of Act 270. Additional information is available from Lean & Green Michigan™
(LAGM). The PACE Program and Report were approved by the Oakland County Board of
Commissioners on November 10, 2016, subsequent to a public hearing held on November 10,
2016.
INTRODUCTION
In order to encourage economic development, improve property valuation, increase
employment, reduce energy costs, reduce greenhouse gas emissions and contribute to the public
health and welfare in the County of Oakland (Oakland County), the Board of Commissioners
established the Oakland County Property Assessed Clean Energy Program pursuant to Public Act
No. 270 of 2010 (“Act 270”) by joining Lean & Green Michigan™ (“LAGM,” the “PACE
Program” or “Program”). The PACE Program has identified specific sources of commercial
funding to finance the implementation of energy efficiency improvements, renewable energy
systems and energy projects within the Oakland County PACE district (which is coterminous
with Oakland County jurisdictional boundaries).
The Oakland County Board of Commissioners passed a Resolution of Intent to create a
PACE district by joining the Lean & Green Michigan statewide PACE program on October 6,
2016. The Board of Commissioners published its first version of this PACE Report thereafter,
and held a public hearing on November 10, 2016. The Board of Commissioners passed a Final
Resolution adopting this PACE program on November 10, 2016.
The purpose of this PACE Report (hereinafter the “Report”) is to fulfill the requirements
of Act 270. Section 9 of Act 270 requires a Report that includes: a form of contract between
Oakland County and the record owner; identification of an official authorized to enter into
program contracts on behalf of Oakland County; a maximum aggregate amount for financing
provided by the County under the program; an application process and eligibility requirements; a
method for determining interest rates, repayment periods and the maximum amount of
assessment; explanation of how assessments will be made and collected; a plan for raising
capital; information regarding reserve funds and fees of the program; a requirement that the term
of the assessment not exceed the useful life of the energy project; a requirement of an appropriate
ratio of the amount of assessment to the assessed value of the property; requirement of consent
from the mortgage holder; provisions for marketing and participant education; provisions for
adequate debt service reserve fund; quality assurance and antifraud measures; and a requirement
for baseline energy audits, ongoing savings measurements and performance guarantees for
projects over $250,000 in assessments.
1. Form of PACE Contract
A form of model PACE Special Assessment Agreement is attached as Appendix A.
Individual property owners may negotiate project-specific terms to be included in an actual
agreement based upon the specific energy efficiency and renewable energy improvements to be
financed through the individual agreement, subject to the limitations set forth herein.
2. Authorized Official/PACE Administrator
The Chairman of the Board of Commissioners, or his/her designee (the “Authorized
Official”) is authorized to enter into PACE Program contracts on behalf of Oakland County in
consultation with Levin Energy Partners, LLC (“LEP”). The Authorized Official is further
authorized to sign any agreement, documents or certificates necessary to facilitate the
participation of property owners and to facilitate the purposes hereunder.
As part of Lean & Green Michigan™, LEP will act as PACE administrator and will
manage Oakland County’s PACE Program. LEP is authorized to negotiate with credit providers
and PACE project participants to facilitate the use of the PACE Program and to assist PACE
project applicants in obtaining owner-arranged financing.
3. Financing Parameters
In establishing its PACE district, Oakland County intends for PACE projects to be funded
through owner-arranged private financing. There is no limit on the maximum aggregate annual
amount of financing provided by private commercial lenders under the program. The dollar
amount for financing of a particular project will be established by the property owner seeking to
make the property improvement and the commercial lender seeking to finance the energy
improvements, as approved by LEP and the Authorized Official. Oakland County is not issuing
any debt, including bonds, notes or other forms of indebtedness or providing any funding of any
kind under the Program, is not a party to the underlying owner-arranged private financing and
assumes no fiduciary responsibility regarding the underlying owner-arranged private financing,
is not responsible for managing the underlying owner-arranged private financing, and will NOT
fund any losses should the borrower default. The Program is not considered a bank agreement to
provide funds to Oakland County nor does it create any form of financial obligation of Oakland
County.
4. Application Process/Eligibility Requirements
Application Process:
The application process for financing projects under the Program shall be that of LAGM.
The current application form is attached as Appendix B.
Eligibility Requirements:
The eligibility requirements for financing projects under the Program shall be those of
LAGM. Eligibility requirements may be changed or amended after approval by resolution of the
Board of Commissioners and the approval of the County Executive. The current list of eligibility
requirements is attached as Appendix C.
5. Financing Terms of Assessments
For funds supplied by commercial lenders, the interest rate for PACE special assessment
installments shall be negotiated by the property owner and the entity providing the financing
based on current market conditions.
The maximum allowable repayment period of a PACE special assessment must be
included in the PACE Special Assessment Agreement and will be determined on a project-
specific basis and shall not exceed the lesser of the useful life of the energy project paid for by
the assessment or 25 years.
The maximum dollar amount of a PACE special assessment shall be negotiated on a
project-specific basis between the property owner and the entity providing the financing based
upon the specific energy efficiency improvement(s) and/or renewable energy system(s) are
included in the individual PACE Special Assessment Agreement.
6. Assessment Collection Process
Within the parameters set forth herein, the Authorized Official will determine to
authorize one or more commercial lenders to provide financing to defray all or part of the cost of
the energy improvements by special assessment upon the Special Assessment Parcel, which the
Authorized Official will find is especially benefited in proportion to the costs of the energy
improvements.
The Special Assessment Roll, attached as Appendix E, will be spread by the Authorized
Official on behalf of Oakland County and without objection by the property owner to allocate
one hundred percent (100%) of the PACE special assessment levy created hereby to the Special
Assessment Parcel.
The PACE special assessment, as allocated by the Authorized Official on behalf of
Oakland County without objection by the property owner, will be finally established against the
property and the energy projects to be constructed on the Special Assessment Parcel. The PACE
special assessment will be effective immediately upon the execution and delivery of the PACE
Special Assessment Agreement by the property owner. The PACE special assessment may be
paid in semi-annual installments pursuant to Section 13(2) of Act 270. The Authorized Official,
on behalf of Oakland County, will confirm the Special Assessment Roll.
7. Financing Program
LAGM has developed and will continue to develop an active roster of financial
institutions, institutional investors and other sources of private capital available to finance PACE
projects in Michigan. By participating in LAGM, Oakland County helps its constituent property
owners gain access to private capital made available through the statewide program. The
Program is not considered a bank agreement to provide funds to Oakland County nor does it
create any form of financial obligation of Oakland County.
By participating in LAGM, Oakland County assists its constituent property owners in
taking advantage of any and all appropriate loan loss reserve and gap financing programs of the
Michigan Economic Development Corporation (“MEDC”), the Michigan Energy Office of the
Michigan Agency for Energy, Community Development Finance Institutions such as Cinnaire,
and other sources. The Program is not considered a bank agreement to provide funds to Oakland
County nor does it create any form of financial obligation of Oakland County.
8. Fee Schedule
Application, administration and program fees for record owners shall be those of LAGM.
Oakland County will have no obligation whatsoever in providing any application, administration
and program fees for the initiation or management of the private lender debt. Administration and
program fees will be determined on a project-specific basis and will depend on the size, nature
and complexity of the energy project(s) and financing mechanism(s) involved.
9. Useful Life
The maximum length of time allowable for repayment of a PACE assessment shall not
exceed the lesser of the useful life of the energy project paid for by the assessment or 25 years
and will be determined on a project-specific basis by LEP. Projects involving multiple energy
efficiency improvements and/or renewable energy systems may aggregate the useful life of each
improvement to determine an overall useful life figure for financing purposes. In aggregating
the improvements, the property owner must appropriately weigh each improvement’s dollar cost.
Oakland County will bear no responsibility in determining the viability of the efficiency
improvements assisting in the funding of the underlying debt service arrangement agreed to by
LEP, the lender and /or borrower, or the borrower’s ability to fund the debt service should the
efficiencies anticipated not occur.
10. Property Eligibility Parameters
The ratio of the amount of the assessment to the market value of the property must be
appropriate and shall be set forth in the PACE Special Assessment Agreement for each project.
Additionally, the overall indebtedness on the property must be appropriate. In calculating the
appropriate ratios, the property owner and the lender providing the financing may determine the
market value of the property using either: 1) the market value of the property before the PACE
project as agreed to by the property owner and the lender providing the financing using a proper
measure such as a recent appraisal or two times the State Equalized Value; or 2) the market value
of the property upon completion of the PACE project as agreed to by the property owner and the
lender providing the financing using a proper measure such as an appraisal of the future value of
the property or as determined based on the current market value of the property plus 75% of the
value of the PACE project.
In calculating the appropriate ratio of the amount of the assessment to the market value of
the property, the cost of the energy project (excluding closing costs and interest) shall generally
not exceed 25% of the market value of the property.
In calculating the appropriate ratio of total indebtedness on the property, if the property
owner and the lender providing financing calculate an appropriate ratio using the market value of
the property before the PACE project, prior debt secured by the building plus the PACE loan
shall generally not exceed 95% of the market value of the property. If the property owner and the
lender providing financing calculate an appropriate ratio using the market value upon completion
of the PACE project, prior debt secured by the building plus the PACE loan shall generally not
exceed 90% of the market value of the property.
LEP and the Authorized Official may permit projects that exceed these values for
reasonable cause on a case-by-case basis, and in such cases must include a letter of explanation
as an addendum to the Special Assessment Agreement.
11. Mortgage Consent Requirement
If a property is subject to a mortgage the record owner must obtain written consent from
the mortgagee to participate in the Program. Proof of lender consent must be submitted before a
Special Assessment Agreement may be executed. A form of model lender consent to participate
in a PACE Program is attached as Appendix G.
12. Marketing Program
LAGM has developed an ongoing marketing and participant education program. By
joining LAGM, Oakland County gains access to this program and agrees to partner with LAGM
in educating businesses in Oakland County about opportunities to save energy, save money and
improve their property value. County authorizes LAGM the non-exclusive right to use its
Servicemarks, as previously provided (hereinafter “Marks”), on any marketing materials, electronic
presentations, and on its web site www.leanandgreenmi.com relating to the adoption and
implementation of the PACE program in Oakland County. The Marks must be used by LAGM with
no variations of color, design or proportion. LAGM shall not use the Marks for any other purpose.
LAGM acknowledges that Oakland County has intellectual property rights in the Marks. Nothing in
this Agreement gives LAGM any right, title, or interest in the Marks. Oakland County may rescind
authorization to use the Marks for any reason upon prior written notice to LAGM. Within ten (10)
business days of receipt of the notice of intent to rescind authorization, LAGM shall cease using the
Marks on its web site, marketing materials or communications.
More information regarding the Program can be obtained at LAGM’s website:
www.leanandgreenmi.com; or at Oakland County’s website at http://www.oakgov.com/.
13. Quality Assurance and Antifraud Measures
LAGM includes the following quality assurance and antifraud measures:
i. Business integrity review on clean energy contractors conducted by
Michigan Saves;
ii. Background check process on clean energy contractors conducted by
Michigan Saves; and
iii. Other general due diligence as may be necessary or required.
14. Audit Requirement
As set forth in the PACE Program Application, a baseline energy audit must be
completed before an energy project is undertaken. Each contract will require and provide
adequate funding for monitoring and verification of energy savings throughout the life of the
special assessment, with Oakland County not providing or responsible for any of the funding.
15. Projects Over $250,000
As set forth in the PACE Special Assessment Agreement, energy projects financed with
more than $250,000 require ongoing measurements to establish energy savings and a guarantee
from the contractor that the energy project will achieve a savings to investment ratio greater than
one.
16. Right to Review Oakland County PACE Program Documents
Oakland County reserves the right to review records relating to the Oakland County
PACE Program in possession of LEP and/or Lean & Green Michigan™ with prior written
notice at any time during the term of this Program.
________________________________________SPACE ABOVE FOR RECORDING PURPOSES____________________________________
PACE SPECIAL ASSESSMENT AGREEMENT
(OWNER-ARRANGED FINANCING)
by and among
OAKLAND COUNTY, MICHIGAN
and
INSERT PROPERTY OWNER
and
INSERT LENDER
Dated ___________
Oakland County PACE Special Assessment Agreement
12
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ......................................................................................................4
ARTICLE II DESCRIPTION OF IMPROVEMENTS .............................................................6
ARTICLE III COVENANTS OF THE PROPERTY OWNER ................................................6
ARTICLE IV PACE SPECIAL ASSESSMENT ......................................................................7
ARTICLE V CONDITIONS PRECEDENT ...........................................................................12
ARTICLE VI REPRESENTATIONS AND WARRANTIES ................................................13
ARTICLE VII DEFAULT .......................................................................................................15
ARTICLE VIII MISCELLANEOUS ......................................................................................16
APPENDIX A ....................................................................................................................21
APPENDIX B ....................................................................................................................22
APPENDIX C ....................................................................................................................23
APPENDIX D ....................................................................................................................24
APPENDIX E ....................................................................................................................26
APPENDIX F ....................................................................................................................28
APPENDIX G ....................................................................................................................31
APPENDIX H ....................................................................................................................33
APPENDIX I ....................................................................................................................36
Oakland County PACE Special Assessment Agreement
13
PACE SPECIAL ASSESSMENT AGREEMENT
(OWNER-ARRANGED FINANCING)
THIS PACE SPECIAL ASSESSMENT AGREEMENT (this “Agreement”) is made this
[INSERT DATE], between Oakland County, a Michigan constitutional corporation (“Oakland
County”), whose address is 2100 Pontiac Lake Road, Bldg 41W, Waterford, MI 48328,
[INSERT PROPERTY OWNER], whose address is [INSERT ADDRESS] and [INSERT
LENDER] (the “Lender”), whose address is [INSERT ADDRESS].
RECITALS:
A. Pursuant to Act 270 and a resolution adopted by the Oakland County Board of
Commissioners on November 10, 2016, Oakland County has established the PACE Program as
described in the PACE Program Report and has created the Special Assessment District under
the PACE Program for the purpose, inter alia, of assisting a record owner of property within the
Special Assessment District in obtaining Owner-Arranged Financing from a commercial lender
to defray the costs of one or more Energy Projects on the property.
B. Under Act 270, Oakland County is authorized, pursuant to an agreement with the
record owner of property within the Special Assessment District, to impose a special assessment
on the property to be benefitted by the Energy Projects in order to secure and provide for the
repayment of the Owner-Arranged Financing.
C. The Property Owner desires to undertake certain Energy Projects on commercial
property of the Property Owner located within the Special Assessment District, as described
herein, and has obtained a commitment from the Lender to make the Loan to the Property Owner
to defray its cost.
D. In order to induce the Lender to make the Loan to the Property Owner, the
Property Owner has requested that Oakland County enter into this Agreement to impose a special
assessment on the property to be benefitted by the Energy Projects, in accordance with Act 270,
which special assessment will secure and provide for repayment of the Loan from the Lender.
E. Pursuant to Act 270 and the PACE Program, Oakland County is authorized to
enter into this Agreement.
In consideration of the foregoing and the mutual covenants contained in this Agreement,
Oakland County, the Property Owner and the Lender agree that:
Oakland County PACE Special Assessment Agreement
14
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used in this Agreement and Recitals shall
have the meanings stated in Act 270 and as stated immediately below, except to the extent the
context in which they are used requires otherwise:
(a) “Act 270” means Act 270 of the Michigan Public Acts of 2010, commonly
referred to as the Property Assessed Clean Energy Act, MCL 460.931 et seq.
(b) “Agreement” means this PACE Special Assessment Agreement as same may be
amended and/or restated.
(c) “Applicable Interest Rate” means the per annum rate of interest specified in the
Loan Documents at which the Special Assessment Roll bears interest as calculated by the Lender
in accordance with the provisions of Section 4.01 of this Agreement.
(d) “Authorized Official” means the Chairman of the Board of Commissioners of
Oakland County, or his designee, who is authorized to exercise the authority of an Authorized
Official under the terms of the PACE Program Report.
(e) “Default Rate” means lesser of (i) eighteen percent (18%) per annum and (ii) the
maximum allowable rate of interest under the laws of the State of Michigan.
(f) “Energy Efficiency Improvement” means equipment, devices, or materials
intended to decrease energy consumption, including, but not limited to, all of the following:
insulation in walls, roofs, floors, foundations, or heating and cooling distribution systems; storm
windows and doors; multi-glazed windows and doors; heat-absorbing or heat-reflective glazed
and coated window and door systems; and additional glazing, reductions in glass area, and other
window and door system modifications that reduce energy consumption; automated energy
control systems; heating, ventilating, or air-conditioning and distribution system modifications or
replacements; caulking, weather-stripping, and air sealing; replacement or modification of
lighting fixtures to reduce the energy use of the lighting system; energy recovery systems; day
lighting systems; installation or upgrade of electrical wiring or outlets to charge a motor vehicle
that is fully or partially powered by electricity; measures to reduce the usage of water or increase
the efficiency of water usage; and any other installation or modification of equipment, devices,
or materials approved as a utility cost-savings measure by the County Commission of Oakland
County.
(g) “Energy Project” means the installation or modification of an Energy Efficiency
Improvement or the acquisition, installation, or improvement of a Renewable Energy System.
(h) “Event of Default” has the meaning set forth in Section 7.01 hereof.
(i) “Force Majeure” means unforeseeable events beyond a party’s reasonable
control and without such party’s failure or negligence including, but not limited to, acts of God,
acts of public or national enemy, acts of the federal government, fire, flood, epidemic, quarantine
Oakland County PACE Special Assessment Agreement
15
restrictions, strikes and embargoes, labor disturbances, the unavailability of raw materials, and
delays of contractors due to such causes, but only if the party seeking to claim Force Majeure
takes reasonable actions necessary to avoid delays caused thereby.
(j) “General Property Tax Act” means the General Property Tax Act, Act 206,
Public Acts of Michigan, 1893, as amended.
(k) “Improvements” means the Energy Efficiency Improvements and the Renewable
Energy Improvements being undertaken by the Property Owner on the Special Assessment
Parcel as described in Appendix E attached hereto.
(l) “Lean & Green Michigan™” means a statewide property assessed clean energy
program open to all local units of government operated as a public-private partnership by LEP in
order to facilitate property assessed clean energy program-financed transactions.
(m) “Lender” has the meaning set forth in the preamble.
(n) “LEP” shall mean Levin Energy Partners, LLC, a Michigan limited liability
company.
(o) “Loan” means the loan obtained by the Property Owner from the Lender pursuant
to Owner-Arranged Financing to defray a portion of the cost of the Improvements under the
terms of the Loan Documents.
(p) “Loan Documents” means the Loan Agreement, dated as of [INSERT DATE],
between the Property Owner and the Lender and any and all exhibits or attachments thereto,
including any documents amending, restating, replacing, extending or otherwise modifying the
Loan Agreement and all documents provided to the Lender from time to time by the Property
Owner to evidence or secure the Loan as required pursuant to the terms of the Loan Agreement.
(q) “Owner-Arranged Financing” means the process by which a property owner
secures financing for improvements to its property that does not involve bonds or any other form
of funding provided by Oakland County.
(r) “PACE Program” shall mean the property assessed clean energy program
implemented by Oakland County pursuant to Act 270 and the PACE Program Report to
stimulate energy efficiency and renewable energy projects in conformity with Act 270.
(s) “PACE Program Report” means the Lean & Green Michigan™ Pace Program
Report approved by the Oakland County Board of Commissioners on November 10, 2016,
including any amendments or changes thereto made before the date of this agreement.
(t) “Payment Schedule” has the meaning set forth in Section 4.01 hereof.
(u) “Property Owner” has the meaning set forth in the preamble.
Oakland County PACE Special Assessment Agreement
16
(v) “Renewable Energy Improvement” means a fixture, product, device, or
interacting group of fixtures, products, or devices on the customer’s side of the meter that use one
(1) or more renewable energy resources to generate electricity, gas, or other power. Renewable
Energy Improvement includes a biomass stove but does not include an incinerator or digester.
(w) “Special Assessment” means the money obligation created pursuant to this
Agreement with respect to the Special Assessment Parcel used to defray the cost of the
Improvements and which shall, together with all interest, charges and penalties which may accrue
thereon, be a lien upon the Special Assessment Parcel of the same priority and status as other
property tax liens and other assessment liens as provided in Act 270 until such amounts have been
paid in full.
(x) “Special Assessment District” means the Special Assessment District established
as part of the PACE Program pursuant to Act 270.
(y) “Special Assessment Parcel” means the property located in the Special
Assessment District to which one hundred percent (100%) of the Special Assessment has been
spread by INSERT COUNTY County and which is more particularly described on the attached
Appendix B.
(z) “Special Assessment Roll” has the meaning set forth in Section 4.01 hereof.
ARTICLE II
DESCRIPTION OF IMPROVEMENTS
Section 2.01 Description of Improvements. The Improvements to be acquired,
constructed, installed and financed by the Property Owner under the PACE Program are
described in Appendix E attached hereto. If after project approval, the Property Owner seeks to
undertake additional Improvements, Appendix E may be amended or supplemented from time to
time. Such additional Improvements must meet all the eligibility criteria of the PACE Program
and the PACE Program Report and may be added to the original application as a modification, or
submitted as a new project, at the discretion of LEP and the Authorized Official.
ARTICLE III
COVENANTS OF THE PROPERTY OWNER
Section 3.01 Acquisition, Construction and Installation of Improvements.
(a) The Property Owner covenants and agrees to acquire, construct and install the
Improvements as described in Appendix E on the Special Assessment Parcel described on
Appendix B in full conformity with all applicable laws and regulations and in compliance with
the PACE Program eligibility requirements set forth in Appendix A. If the proceeds of the Loan
are not sufficient to pay the costs of the Improvements as aforesaid, the Property Owner agrees
to complete the Improvements and to pay that portion of the costs of the Improvements in excess
of the amount of the Loan. The Property Owner acknowledges and agrees that Oakland makes
Oakland County PACE Special Assessment Agreement
17
no representation, either express or implied, that the proceeds of the Loan will be sufficient to
pay the total costs of the Improvements, and the Property Owner agrees that if, after exhaustion
of the proceeds of the Loan, the Property Owner shall be required to pay any portion of the costs
of the Improvements from its own funds, the Property Owner shall not be entitled to any
reimbursement therefor from Oakland or from the Lender, nor shall the Property Owner be
entitled to any abatement or diminution of the amount of the Special Assessment created by this
Agreement or of any interest, charges or penalties which may accrue thereon.
(b) To provide for monitoring and verification of the Energy Project, the Property
Owner has created an Energy Star Portfolio Manager account and has linked this account to the
Levin Energy Partners Energy Star Portfolio Manager account. The Property Owner has entered
all electricity bills for the Special Assessment Parcel for the year (12 consecutive months)
immediately preceding the installation of the Energy Project and all electricity bills issued
between the installation of the Energy Project and the signing of the Agreement. The Property
Owner further agrees to enter its electricity bills for the duration of the Agreement on an annual
basis. Annual electricity bills for the Special Assessment Parcel will be entered into the Property
Owner’s Energy Star Portfolio Manager account by January 31 of each year after the year for
which the electricity bills are to be entered. Oakland County shall have not responsibilities and
make no representations regarding the Energy Project.
ARTICLE IV
PACE SPECIAL ASSESSMENT
Section 4.01 PACE Special Assessment Created.
(a) At the request of the Property Owner, Oakland County hereby determines to assist
the Property Owner in obtaining the Loan to defray a portion of the cost of the Improvements on
the Special Assessment Parcel by the levy of the Special Assessment upon the Special
Assessment Parcel, which the Authorized Official on behalf of Oakland County finds is
especially benefitted. The Special Assessment created hereby has been spread by the Authorized
Official on behalf of Oakland County on the Special Assessment Roll attached hereto as
Appendix C (the “Special Assessment Roll”), with the consent of the Property Owner, to
allocate one hundred percent (100%) of the Special Assessment to the Special Assessment
Parcel.
(b) The Special Assessment, as allocated by the Authorized Official with the consent
of the Property Owner, is hereby finally established and levied against the Special Assessment
Parcel as described on the attached Appendix B in the principal amount of [INSERT
ASSESSMENT AMOUNT] ([ASSESSMENT AMOUNT NUMERICAL]) as stated on the
Special Assessment Roll. The Special Assessment is effective immediately upon the execution
and delivery of this Agreement by the Property Owner. The Special Assessment shall be paid by
the Property Owner in [INSERT NUMBER OF PAYMENTS] semi-annual installments on the
dates and in the amounts set forth in the payment schedule attached hereto as Appendix D (the
“Payment Schedule”). The Special Assessment Roll is hereby confirmed by the Authorized
Official on behalf of Oakland County. Subject to Section 4.08, the unpaid amount of the Special
Oakland County PACE Special Assessment Agreement
18
Assessment Roll shall bear interest from the date of execution and delivery of this Agreement at
the Applicable Interest Rate, as calculated by the Lender in accordance with the terms of the
Loan Documents, payable by the Property Owner semi-annually on each date on which any
installment of the Special Assessment is due in accordance with the Payment Schedule.
Notwithstanding the foregoing, (i) if any installment of the Special Assessment or any interest
due and payable on the Special Assessment Roll is not paid by the Property Owner when and as
the same shall become due and payable in accordance with the provisions of this Section 4.01 or
(ii) any “event of default” under the Loan Documents has occurred and is continuing, the unpaid
amount of the Special Assessment Roll shall bear interest at the Default Rate as calculated by the
Lender in accordance with the terms of the Loan Documents, for as long as such amounts remain
unpaid or for so long as such “event of default” under the Loan Documents exists and is
continuing. Oakland County, the Property Owner and the Lender agree that the Lender shall be
solely responsible for the determination from time to time of the Applicable Interest Rate and the
Default Rate and the amount of interest due and payable by the Property Owner on the Special
Assessment Roll on each day on which interest thereon is due and payable as provided in this
Agreement, and the Lender’s determination thereof shall be binding on the Property Owner
absent manifest error. The Property Owner and the Lender agree that Oakland County shall
under no circumstance have any obligation to determine the Applicable Interest Rate or the
Default Rate or to calculate the amount of any interest payment due on the Special Assessment
Roll as provided in this Agreement, and Oakland County may conclusively rely upon the
Lender’s determinations thereof for the purpose of exercising and discharging all of Oakland
County’s rights and obligations under this Agreement. The Lender agrees to provide, or cause to
be provided, notice to the Property Owner and Oakland County of the determinations of the
Applicable Interest Rate and the Default Rate, as applicable, pursuant to this Section 4.01(b) at
such times, and from time to time, as the Property Owner or Oakland County may request.
Section 4.02 Assignment of Special Assessment Payments to Lender. At the request
of the Property Owner and the Lender, and pursuant to Section 9(f)(iii) of Act 270, Oakland
County hereby irrevocably assigns to the Lender its right to receive all installments of the
Special Assessment required to be paid by the Property Owner pursuant to this Agreement,
whether in accordance with the Payment Schedule or upon prepayment of the Special
Assessment in whole or in part in accordance with Section 4.06 of this Agreement, together with
all payments of interest due and payable on the Special Assessment Roll at the Applicable
Interest Rate or the Default Rate, as the case may be, as provided in Section 4.01(b) of this
Agreement. In pursuance of the foregoing, Oakland County, the Property Owner and the Lender
agree that, except as provided in Section 4.05 of this Agreement, (i) all installments of the
Special Assessment, whether payable in accordance with the Payment Schedule or upon
prepayment of the Special Assessment in whole or in part in accordance with Section 4.06 of this
Agreement, together with all payments of interest due and payable upon the Special Assessment
Roll at the Applicable Interest Rate or the Default Rate, as the case may be, shall be paid by the
Property Owner directly to the Lender when due at such address in the United States as may be
designated by the Lender in writing to the Property Owner and Oakland County; (ii) Oakland
County shall have no obligation or duty to include any installments of the Special Assessment on
any tax bill issued by Oakland County or to bill, collect or remit to the Lender any installments
of the Special Assessment or any interest due and payable upon the Special Assessment Roll;
and (iii) absent receipt by Oakland County of written notice from the Lender of a payment
Oakland County PACE Special Assessment Agreement
19
default in accordance with Section 4.05 hereof, Oakland County shall be entitled to conclusively
presume that all installments of the Special Assessment and all payments of interest due and
payable on the Special Assessment Roll have been made by the Lender to the Property Owner to
the Lender when due as required by the terms of this Agreement.
Section 4.03 Property Owner’s Consent to Special Assessment; Waiver.
(a) The Property Owner hereby irrevocably consents to and confirms the creation of
the Special Assessment Roll and the levy of the Special Assessment established pursuant to this
Agreement and EXPRESSLY WAIVES ANY AND ALL CLAIMS CHALLENGING AND
DEFENSES TO, THE LEGALITY, VALIDITY, ENFORCEABILITY OR COLLECTABILITY
OF THE SPECIAL ASSESSMENT, including, but not limited to, claims arising from, relating to
or otherwise based upon any theory of procedural defect concerning the approval of the
Improvements, the establishment of the Special Assessment District, confirmation of the Special
Assessment Roll and the Payment Schedule, Oakland County’s right to place the Special
Assessment lien on the Special Assessment Parcel, the collectability and due dates of the Special
Assessment installments and interest due and payable on the Special Assessment Roll, or any
other theory or claim. The Property Owner further waives notice of hearing and the right to file
objections if and to the extent such rights exist under law.
(b) Following the signing of this Agreement, no suit or action of any kind shall be
instituted or maintained for the purpose of contesting or enjoining the collection of the Special
Assessment, and the Property Owner, for itself and its successors in interest, lessees, purchasers,
and assigns with respect to all or any part of the Special Assessment Parcel, subject to Section
4.08, hereby irrevocably waives its rights to contest the Special Assessment with any
adjudicative body having jurisdiction over the subject matter, including, but not limited to, the
Michigan Tax Tribunal.
(c) In addition to any conditions, covenants, warranties and representations specified
in the Loan Documents, the Property Owner shall not sell, transfer, alienate or convey any of its
interest in the Special Assessment Parcel without first having given written notice of the Special
Assessment to any successors in interest, lessees, purchasers or assigns and having made a copy
of this Agreement part of any purchase contract, sale contract, lease agreement, deed or any other
conveyancing instrument by which the Property Owner purports to assign all or any part of its
interest in the Special Assessment Parcel to any successors in interest, lessees, purchasers,
transferees, licensees and assigns. This Agreement shall be recorded against the real property
constituting the Special Assessment Parcel by Oakland County with the Register of Deeds of the
County of Oakland, State of Michigan.
(d) The Property Owner agrees that it, its successors and assigns shall, subject to
Section 4.08, during the term of this Agreement and the Special Assessment, pay all ad valorem
real property taxes and assessments levied against the Special Assessment Parcel when due and
the Property Owner specifically waives, irrevocably for itself, its successors and assigns as to
any and all portions of the Special Assessment Parcel, the right to pay ad valorem real property
taxes and assessments on any other installment method which may be available to property
owners in Oakland County.
Oakland County PACE Special Assessment Agreement
20
(e) Oakland County agrees that following (i) payment by the Property Owner in full
of the Special Assessment, together with all accrued interest on the Special Assessment Roll, and
all other interest, charges and penalties which may accrue thereon, and (ii) receipt by Oakland
County of written acknowledgment from the Lender that the Special Assessment, together with
all accrued interest on the Special Assessment Roll, has been paid to the Lender in full, it will
promptly execute and deliver documentation discharging the lien of the Special Assessment on
the Special Assessment Parcel. Until the Special Assessment liability has been fully satisfied and
the lien discharged, each purchaser of all or any part of the Special Assessment Parcel, as a
condition of closing on such purchase, shall execute and deliver to Oakland County a written
notice: (i) acknowledging the principal amount unpaid and outstanding on the Special
Assessment; (ii) agreeing to the assumption of the liability to pay the Special Assessment, and
any interest thereon, on a timely basis, when due, until the remaining balance and interest on
said Special Assessment has been paid in full; (iii) acknowledging that the title insurance policy
will state that the Special Assessment has not been paid at time of closing thereon; and (iv)
agreeing to pay to the Lender at or prior to the close of the purchase all past due installments of
the Special Assessment and all past due payments of interest on the Special Assessment Roll.
The representations set forth in such written notice shall be enforceable at law and in equity,
including without limitation, by way of specific performance.
Section 4.04 Lien. The Special Assessment is an obligation with respect to the Special
Assessment Parcel, and shall, until paid, be a lien upon the Special Assessment Parcel for the
amount of the Special Assessment and all interest, charges and penalties that may accrue thereon.
Such lien shall be of the same character and effect as liens created by Oakland County for
County taxes and shall be treated as such with respect to procedures for collection as set forth in
the General Property Tax Act, including accrued interest, charges and penalties. The Special
Assessment confirmed hereby is a debt to Oakland County from the Property Owner and its
successors in interest, lessees, purchasers and assigns. The right of Oakland County to receive
all installments of the Special Assessment required to be paid by the Property Owner pursuant to
this Agreement, together with all payments of interest due and payable on the Special
Assessment Roll at the Applicable Interest Rate or the Default Rate, as the case may be, as
provided in Section 4.01, has been irrevocably assigned by Oakland County to the Lender in
accordance with the provisions of Section 4.02 of this Agreement. No judgment or decree shall
destroy or impair any lien of Oakland County upon the premises assessed for such amount of the
Special Assessment as may have been equitably or lawfully charged and assessed thereon.
Failure of the Property Owner or any subsequent property owner to receive any notice required
to be sent under the provisions of this Agreement shall not invalidate the Special Assessment or
the Special Assessment Roll and shall not be a jurisdictional requirement.
Section 4.05 Payment Default.
(a) If any installment of the Special Assessment or interest due on the Special
Assessment Roll shall not have been paid by the Property Owner to the Lender, as assignee of
Oakland County, at the time and in the amount required by Section 4.01 hereof (a “Payment
Default”), the Lender shall, within thirty (30) days following the date such sums were due and
payable (the “Payment Default Date”), deliver written notice to Oakland County stating all of the
following: (i) that a Payment Default has occurred under this Agreement; (ii) the Payment
Oakland County PACE Special Assessment Agreement
21
Default Date; (iii) the amount of the Special Assessment that was due and payable as of the
Payment Default Date and which remains unpaid and the amount of interest on the Special
Assessment Roll that was due and payable as of the Payment Default Date and which remains
unpaid (collectively, the “Payment Default Amount”); and (iv) an attestation by an authorized
officer of the Lender that the statements contained in the foregoing notice are true, correct and
complete as of the date of such notice. Upon receipt of such notice from the Lender, Oakland
County shall take such actions as may be required to cause the Payment Default Amount to be
certified for collection on the summer or winter tax bill next succeeding the Payment Default
Date, and such Payment Default Amount shall be collected at the same time and in the same
manner as is prescribed for the collection of Oakland County taxes under the General Property
Tax Act. Oakland County may assess a fee for delinquent taxes, interest, penalties, and fees as
provided under General Property Tax Act Section 211.78. Notwithstanding the foregoing
provisions of this Section 4.05(a), if Oakland County shall determine that the notice of the
Lender described in this Section 4.05(a) was not received by Oakland County in sufficient time
to permit the Payment Default Amount to be placed for collection on the summer or winter tax
bill next succeeding the Payment Default Date, such Payment Default Amount shall be certified
for collection on the next summer or winter tax bill issued thereafter. Oakland County shall be
entitled to conclusively rely upon any notice of the Lender delivered pursuant to this Section
4.05(a) as to the existence of a Payment Default and as to the Payment Default Amount, and
shall not be liable to the Property Owner or to any other person for any action taken by Oakland
County pursuant to the terms of this Agreement or otherwise in reliance upon the information
contained in such notice. Absent receipt by Oakland County of written notice from the Lender
of a Payment Default in accordance with this Section 4.05(a), Oakland County shall be entitled
to presume conclusively that all installments of the Special Assessment and all payments of
interest due and payable on the Special Assessment Roll have been made by the Property Owner
to the Lender when due as required by the terms of this Agreement, and Oakland County shall
have no obligation or duty to include any installments of the Special Assessment on any tax bill
issued by Oakland County or to bill, collect or remit to the Lender any installments of the Special
Assessment or any interest due and payable upon the Special Assessment Roll.
(b) Oakland County hereby agrees that, pursuant to the assignment set forth in
Section 4.04, it will cause to be paid over to the Lender all amounts received by the County
Treasurer as collections of any Payment Default Amount within forty-five (45) days of the date
such sums are received by the County Treasurer. The parties hereto expressly acknowledge and
agree that in no event shall Oakland County advance to the Lender the amount of any unpaid
Payment Default Amount, and Oakland County shall be obligated to pay over to the Lender only
such sums as are actually received by the County Treasurer as collections of any Payment
Default Amount.
(c) Subject to Section 4.08, in the event that any interest, penalties, fees or other
charges shall be imposed upon the Special Assessment Parcel or against the Special Assessment
Roll or the amount of any unpaid Special Assessment pursuant to the General Property Tax Act
by the County of Oakland, Michigan, for the administration, billing, collection or enforcement of
the Special Assessment created hereby, such amounts shall remain a debt of the Property Owner
to the Oakland County Treasurer, as their interests may appear, and shall not be deemed to have
been assigned to the Lender pursuant to the terms of this Agreement or otherwise.
Oakland County PACE Special Assessment Agreement
22
Section 4.06 Prepayment of Special Assessment. Subject to the provisions of the
Loan Documents, including, without limitation, prepayment penalties, if any, the Property
Owner may, upon sixty (60) days’ written notice to the Lender and Oakland County, prepay any
installment of the Special Assessment specified in the Payment Schedule by causing to be paid to
the Lender the amount of the installment to be prepaid, together with accrued interest thereon to
the date of prepayment. If such prepayment of any installment is not received by the Lender on
the date specified for prepayment, the Lender shall promptly deliver written notice to Oakland
County that such prepayment was not received by the Lender.
Section 4.07 Invalidity; Cure. In the event of any invalidity of the Special
Assessment, the Authorized Official, at the request of the Lender, and if Oakland County shall
have received indemnity satisfactory to the Authorized Official for its costs and expenses
(including reasonable attorneys’ fees), shall cause a new Special Assessment to be made for all
or any part of the Improvements in accordance with Act 270 and the PACE Program as
reasonably determined by the Authorized Official, and the Property Owner, on behalf of itself
and its successors in interest, lessees, purchasers, and assigns, hereby waives any objections to
and agrees to the imposition of such new Special Assessment; provided, however, that the
amount of the new Special Assessment shall not exceed the unpaid principal amount of the Loan
at the time the new Special Assessment shall be established.
Section 4.08 Oakland County or Oakland County Treasurer Becoming Owner of the
Special Assessment Parcel
In the event that Oakland County or the Oakland County Treasurer takes ownership of
the Special Assessment Parcel by operation of law, Oakland County or the Oakland County
Treasurer and the Lender agree that while the lien on the Special Assessment Parcel will remain
in full force and effect, during the period of time that Oakland County or the Oakland County
Treasurer owns the Special Assessment Parcel no loan or special assessment payments, including
interest, penalties, fees or other charges, are required to be paid or will be accrued by Oakland
County or the Oakland County Treasurer to the Lender.
ARTICLE V
CONDITIONS PRECEDENT
Section 5.01 Conditions Precedent to Oakland County’s Obligations.
The obligations of Oakland County under this Agreement shall be subject to the
satisfaction of the following conditions precedent on or prior to the date of execution and
delivery of this Agreement by Oakland County, unless waived in writing by Oakland County:
(a) The County, the Property Owner and the Lender shall have authorized, executed
and delivered this Agreement and all approvals required hereby shall have been secured.
Oakland County PACE Special Assessment Agreement
23
(b) No action, suit, proceeding or investigation shall be pending before any court,
public board or body to which the Property Owner or Oakland County is a party, or shall be
threatened in writing against the Property Owner or Oakland County, contesting the validity or
binding effect of this Agreement, the Special Assessment or the Owner-Arranged Financing
contemplated hereby, or which, if adversely decided, could have a material adverse effect upon
the ability of the Property Owner to pay or Oakland County to levy the Special Assessment or to
assign to the Lender the right to receive payments of the Special Assessment, or which could
have a material adverse effect on the ability of the Property Owner of Oakland County to comply
with any of the obligations and terms of this Agreement.
(c) There shall be no ongoing breach of any of the covenants and agreements of the
Property Owner required to have been observed or performed by the Property Owner under the
terms of this Agreement and no Event of Default by the Property Owner, and no event which,
with the passage of time or the giving of notice or both could become an Event of Default by the
Property Owner under this Agreement, shall have occurred.
(d) All documents, schedules, materials, maps, plans, descriptions and related matters
which are contemplated to be made Appendices to this Agreement shall have been fully
completed by the Property Owner to Oakland County’s reasonable satisfaction and such
Appendices shall be true, accurate and complete.
(e) The Property Owner shall meet all eligibility requirements as set forth in
Appendix A.
(f) The Property Owner and the Lender shall have authorized, executed and delivered
the Loan Documents, and the Lender shall have funded the Loan in accordance with the terms of
the Loan Documents.
(g) The Property Owner shall not have filed for bankruptcy or sought the protections
of any state or federal insolvency law providing protections to debtors.
(h) The Property Owner shall have obtained consent from each holder of a mortgage
interest or lien upon the Special Assessment Parcel prior to the execution and delivery of this
Agreement in substantially the form set forth in the PACE Program Report.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties of Oakland County.
INSERT COUNTY County represents and warrants to the Property Owner that:
(a) The execution and delivery of this Agreement has been duly authorized by
Oakland County, and this Agreement complies with Act 270 and constitutes a valid and binding
agreement of Oakland County, enforceable against Oakland County in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or
Oakland County PACE Special Assessment Agreement
24
other laws affecting creditors’ rights generally, now existing or hereafter enacted, and by the
application of general principals of equity, including those relating to equitable subordination.
(b) Neither the execution and delivery of this Agreement nor the consummation of
the transaction contemplated herein is in violation of any provision of any existing law,
ordinance, rule, resolution or regulation to which Oakland County is subject, or any agreement to
which Oakland County is a party or by which Oakland County is bound, or any order or decree
of any court or governmental entity by which Oakland County is subject.
(c) There are no delinquent ad valorem taxes, special assessments, or water or sewer
charges on the Special Assessment Parcel that will be assessed under this Agreement; and there
are no delinquent assessments on the Special Assessment Parcel under a PACE program.
Section 6.02 Representations and Warranties of the Property Owner.
The Property Owner represents and warrants to Oakland County and the Lender that:
(a) The Property Owner is duly organized and validly existing as a [INSERT
ORGANIZATION TYPE] in good standing under the laws of the State of Michigan, with
power under the laws of the State of Michigan to carry on its business as now being conducted,
and is duly qualified to do business in the State of Michigan; and the Property Owner has the
power and authority to own the Special Assessment Parcel and to carry out its obligation to
complete the Improvements.
(b) The execution and delivery of this Agreement will not result in a violation or
default by the Property Owner of any provision of its Articles of Organization or Operating
Agreement, or under any indenture, contract, mortgage, lien, agreement, lease, loan agreement,
note, order, judgment, decree or other instrument of any kind or character to which it is a party
and by which it is bound, or to which it or any of its assets are subject.
(c) The Property Owner is the sole and exclusive legal and equitable title owner of
fee simple title to the Special Assessment Parcel and the Improvements located, or to be located,
thereon and has full legal power and authority to consent to the finalization and levying of the
Special Assessment as provided herein.
(d) The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all requisite action, and this
Agreement has been duly executed and delivered by the Property owner and constitutes a valid
and binding agreement enforceable against the Property Owner in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or
other laws affecting creditors’ rights generally, now existing or hereafter enacted, and by the
application of general principles of equity, including those relating to equitable subordination.
(e) Property Owner warrants and agrees that any contractual, legal or other disputes
between it and the Lender -- other than matters specifically related to enforcement of property
tax obligations -- or Contractor involved in the PACE project do not involve Oakland County,
Oakland County PACE Special Assessment Agreement
25
and Property Owner agrees to hold Oakland County and its agents, including but not limited to
LEP, harmless in any such disputes or causes of action.
(f) The Property Owner, the Special Assessment Parcel and the Improvements satisfy
all of the PACE Program eligibility and program requirements set forth in Appendix A.
Section 6.03 Representations and Warranties of the Lender.
The Lender represents and warrants to Oakland County that:
(a) The Lender has experience in the market for property assessed clean energy
programs and assessments and is capable of evaluating the merits and risks of its participation in
the Owner-Arranged Financing contemplated by this Agreement.
(b) The Lender has made its own independent investigation of the Property Owner,
the terms of this Agreement, the nature of the Special Assessment created hereby and the
procedures for the collection and enforcement of the Special Assessment under this Agreement
and the laws of the State of Michigan, and is not relying on Oakland County, its agents, attorneys
or employees for any of such information or with respect to the sufficiency and scope of such
investigation. The Lender has not received, and is not relying on, and representations of Oakland
County with respect to the Property Owner.
ARTICLE VII
DEFAULT
Section 7.01 Property Owner Event of Default. If the Property Owner shall default
in the performance of any covenant or agreement on its part contained in this Agreement and
such default shall continue for a period of ten (10) days after written notice thereof has been
given to the Property Owner by Oakland County, an “Event of Default” shall be deemed to have
occurred under this Agreement.
Section 7.02 Remedies for Property Owner Event of Default. Upon the occurrence
of an Event of Default as provided in Section 7.01 hereof, Oakland County, after giving written
notice as required, without further notice of any kind, and in addition to all other rights and
remedies provided at law or in equity, shall be entitled to seek and obtain a decree from a court
of competent jurisdiction which may include the right to recover from the Property Owner any
damages incurred by Oakland County and any costs incurred by Oakland County in enforcing or
attempting to enforce this Agreement or the Special Assessment, including attorneys’ fees and
expenses; or to foreclose on the Special Assessment Parcel and to sell all or any part of the
Special Assessment Parcel to the extent necessary to recover any damages and costs; or any
combination of the foregoing. Notwithstanding the foregoing, the parties hereto acknowledge
and agree that Oakland County shall not be obligated to institute any of the actions or
proceedings or to exercise any of the remedies authorized by this Section 7.02 upon the
occurrence of an Event of Default hereunder, and that its obligations with respect to the billing,
Oakland County PACE Special Assessment Agreement
26
collection and enforcement of the Special Assessment or any installment thereon shall be limited
to those obligations set forth in Article IV of this Agreement. The Lender acknowledges that
neither the Special Assessment nor any installment thereon can be accelerated.
Section 7.03 Waiver. Failure of any party hereunder to act upon discovery of a default
or to act upon the existence of an Event of Default shall not constitute a waiver of the right to
pursue the remedies provided herein.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Term. Except as otherwise provided in this Agreement, the terms of this
Agreement shall commence on the date first written above and shall terminate at such time as the
Special Assessment liability shall have been fully satisfied as provided in Section 4.03(e) hereof.
Section 8.02 Assignment.
(a) Except as otherwise provided herein and as provided in Section 8.02(b) hereof, no
party to this Agreement may transfer, assign or delegate to any other person or entity all or any
part of its rights or obligations arising under this Agreement without the prior written consent of
the other parties hereto excepting as otherwise expressly provided herein.
(b) The Lender and its successors and assigns may assign its rights and obligations
under this Agreement and its rights in the Special Assessment, in whole but not in part; provided,
however, that any such assignment shall be made only in accordance with applicable law; and
provided further, however, that no such assignment shall be effective unless Oakland County
shall have first received (i) notice of the assignment disclosing the name and the address of the
assignee, which shall be an address in the United States and (ii) a Certificate of Assignment
executed by the assignee in the form attached to this Agreement as Appendix I. From and after
the date of satisfaction of the conditions for the assignment of this Agreement as provided in this
Section 8.02(b), the assignee of the Lender shall be a party hereto and shall have the rights and
obligations of the Lender specified hereunder, and such assignee shall be deemed to be the
“Lender” for all purposes of this Agreement.
Section 8.03 Notices. All notices, certificates or communications required by this Agreement
to be given shall be in writing and shall be sufficiently given and shall be deemed delivered
when personally served, or when received if mailed by registered or certified mail, postage
prepaid, return receipt requested, addressed to the respective parties as follows, or to such other
address as such party may specify by written notice to the other parties hereto:
Oakland County PACE Special Assessment Agreement
27
If to the County: Oakland County
2100 Pontiac Lake Road Building 41W
Waterford, MI 48328
Attn: [INSERT AUTHORIZED OFFICIAL]
If to the Property Owner: [INSERT PROPERTY OWNER]
[INSERT PROPERTY OWNER ADDRESS]
With a copy to: The Lender
If to the Lender: [INSERT LENDER]
[INSERT LENDER ADDRESS]
With a copy to:
Section 8.04 Amendment and Waiver No amendment or modification to or of this
Agreement shall be binding upon any party hereto until such amendment or modification is
reduced to writing and executed by each party hereto. No waiver of any term of this Agreement
shall be binding upon any party until such waiver is reduced to writing, executed by the party to
be charged with such waiver, and delivered to the other parties hereto.
Section 8.05 Entire Agreement. This Agreement constitutes the entire agreement
between Oakland, on the one hand, and the Lender and the Property Owner, on the other hand.
There are no other representations, warranties, promises, agreements or understandings, oral,
written or implied, between Oakland, on the one hand, and the Lender or the Property Owner, on
the other hand.
Section 8.06 Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which shall constitute the same
instrument.
Section 8.07 Captions. The captions and headings in this Agreement are for
convenience only and in no way limit, define or describe the scope or intent of any provision of
this Agreement.
Section 8.08 Applicable Law. This Agreement shall be governed in all respects,
whether as to validity, construction, performance and otherwise, by the laws of the State of
Michigan.
Section 8.09 Mutual Cooperation. Each party to this Agreement shall take all actions
required of it by the terms of this Agreement as expeditiously as possible and shall cooperate to
the fullest extent possible with the other parties to this Agreement. Each party to this Agreement
shall exercise reasonable diligence in reviewing, approving, executing and delivering all
documents necessary to accomplish the purposes and intent of this Agreement. Each party to
this Agreement also shall use its best efforts to assist the other parties to this Agreement in the
Oakland County PACE Special Assessment Agreement
28
discharge of its obligations hereunder and to assure that all conditions precedent to the financing
arrangements are satisfied.
Section 8.10 Binding Effect; No Third-Party Beneficiary. This Agreement shall be
binding upon the parties hereto and upon their respective successors and assigns. In no event
shall the provisions of this Agreement be deemed to insure to the benefit of or be enforceable by
any third party, except for permitted assigns.
Section 8.11 Force Majeure. No party hereto shall be liable for the failure to perform
its obligations hereunder if said failure to perform is due to Force Majeure. Said failure to
perform shall be excused only for the period during which the event giving rise to said failure to
perform exists; provided, however, that the party seeking to take advantage of this Section shall
notify the other party in writing, setting forth the event giving rise to said failure to perform,
within ten (10) business days after the occurrence of said event.
[SIGNATURES ON THE FOLLOWING PAGE]
Oakland County PACE Special Assessment Agreement
29
IN WITNESS WHEREOF, Oakland County, [INSERT PROPETY OWNER], and
[INSERT LENDER] have caused this PACE Special Assessment Agreement to be duly executed
and delivered as of the date first written above.
Witnessed:
Signature of:
[INSERT PROPETY OWNER]
By: ________________________________
Its:
Witnessed:
Signature of:
Oakland County
By: _________________________________
Its: [INSERT AUTHORIZED OFFICIAL]
Witnessed:
______________________________
Signature of:
[INSERT LENDER]
By: ________________________________
Its:
Oakland County PACE Special Assessment Agreement
30
State of Michigan )
) ss
County of OAKLAND )
The foregoing instrument was acknowledged before me this ____ day of _______, 2016, by
_____________________ the Authorized Signatory of _________________________ on behalf
of _________________________.
Notary Public
___________________County, Michigan
My commission expires ________________
State of Michigan )
) ss
County of Oakland )
The foregoing instrument was acknowledged before me this ______ day of _______, 2016, by,
_______________________ on behalf of Oakland County.
Notary Public
___________________County, Michigan
My commission expires ________________
State of _______ )
) ss
County of _____ )
The foregoing instrument was acknowledged before me this ____ day of _______, 2016, by
_____________________ the Authorized Signatory of ______________________, on behalf of
___________________________.
Notary Public
___________________County, __________
My commission expires ________________
Oakland County PACE Special Assessment Agreement
31
APPENDIX A
PROGRAM ELIGIBILITY CHECKLIST
Property is privately owned commercial or industrial real property within Oakland County’s
jurisdictional boundaries, which may be owned by any individual or private entity, whether
for-profit or non-profit. MCL 460.933(g). Multi-family residential property is included in
the definition of commercial property.
There are no delinquent ad valorem taxes, special assessments, or water or sewer charges on
the property. The Authorized Official at his discretion may disqualify properties that
although not currently delinquent, have been delinquent within six months of the
application’s submission. MCL 460.941(2)(a).
There are no delinquent assessments on the property under a PACE program. MCL
460.941(2)(b).
The term of assessment shall not exceed the lesser of the useful life of the energy project paid
for by the assessment or 25 years. Projects that consist of multiple energy efficiency
improvements or renewable energy systems with varying lengths of useful life may blend the
lengths to determine an overall assessment term that does not exceed the useful life of the
improvements in aggregate. MCL 460.939(i).
An appropriate ratio must be determined for the amount of assessment in relation to the
assessed value of the property. MCL 460.939(j).
Written consent from the mortgage holder must be obtained if the property is subject to a
mortgage. MCL 460.939(k).
A baseline energy audit must be conducted for the property that is approved by LEP. Such
approval may be granted retroactively if the audit meets the standards of LEP. MCL
460.939(o).
For projects financed for more than $250,000, a performance guarantee must be provided by
the contractor(s) to guarantee a savings to investment ratio greater than one (1). MCL
460.939(p). The performance guarantee must meet the standards set by LEP.
For projects financed for more than $250,000, financial and logistical arrangements for
ongoing measurement and verification of energy savings that meet standards set by LEP.
MCL 460.939(p).
Oakland County PACE Special Assessment Agreement
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APPENDIX B
SPECIAL ASSESSMENT PARCEL DESCRIPTION
Parcel Number:
Address:
LEGAL DESCR:
Oakland County PACE Special Assessment Agreement
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APPENDIX C
SPECIAL ASSESSMENT ROLL
PACE Project Special Assessment
Parcel Number:
Address:
City:
Owner:
Assessment:
Percent:
I certify that the above is the special assessment role created for the PACE project referenced in
this document in the applicable township, city, village, or applicable entity, in the State of
Michigan, subject to payment of special assessment as outlined in Appendix D of this document.
_____________________________________________________
[INSERT COUNTY TREASURER]
Oakland County Treasurer
_____________________________________________________
Dated
Oakland County PACE Special Assessment Agreement
34
APPENDIX D
PAYMENT SCHEDULE
(TBD)
Oakland County PACE Special Assessment Agreement
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APPENDIX E
DESCRIPTION OF IMPROVEMENTS
Oakland County PACE Special Assessment Agreement
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APPENDIX F
LEAN & GREEN MICHIGAN PACE PROGRAM APPLICATION
Applicant Information
(Use attachments as necessary)
1. Property Owner(s) Legal Name(s) (as they appear on property tax records)
Name Parcel #
Owner 1: Click here to enter text. Click here to enter text.
2. Property Owner(s) Contact Information
Name: Click here to enter text.
Address: Click here to enter text.
E-mail Address: Click here to enter text.
Telephone Number: Click here to enter text.
3. Property Owner(s) Type
☐ Individual ☐ LLP ☐ LLC
☐ Corporation ☐ Other (please specify)
4. Property Type (Check all that apply)
☐ Commercial
☐ Grocery/convenience store
☐ Health care/clinic
☐ Mixed use
☐ Multi-family unit (3 or more)
☐ Office
☐ Other - Please describe Click here to enter text.
☐ Retail
☐ Restaurant
☐ Recreational
☐ Warehouse
☐ Industrial
Please describe Click here to enter text.
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5. Property Addresses and Parcel Number
Physical Property Address of Improvements: Click here to enter text.
Assessor’s Parcel #: Click here to enter text.
6. Balance of Any Mortgage(s):
Amount of Mortgage Name of Mortgage Holder
First Mortgage
Second Mortgage
Additional Debt on Property
☐ Consent by mortgage holder(s) obtained, if subject to a mortgage. Please attach
consent.
7. Property Valuation
State Equalized Value (SEV): Click here to enter text.
Date of SEV: Click here to enter text.
Appraisal: Click here to enter text.
Dave of Appraisal: Click here to enter text.
7. Existing Liens Against Property (tax, special assessment, water or sewer charges, etc.)
Amount Type End Date
$_______________ _________________ __________________
$_______________ _________________ __________________
$_______________ _________________ __________________
Total: $_______________
8. Requested Assessment Amount
Energy Project $______________
Energy Audit $______________
Engineering/Architect Plans $______________
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Building Permit Fees $______________
Other (Please explain) $______________
Total
9. Requested Assessment Repayment Period (Term may not exceed the lesser of the useful
life of the energy project or 25 years.)
Term:
10. Projects Over $250,000
Please attach details regarding provisions for ongoing measurements of energy savings and
information regarding performance guarantees.
11. Baseline Energy Audit
Please attach the baseline energy audit performed on the property and all supporting
documentation.
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APPENDIX G
CERTIFICATE OF ASSIGNMENT
This Certificate of Assignment of the Special Assessment Agreement (“Assignment”),
dated effective as of _______________, 201__ (the “Effective Date”), is made by INSERT
LENDER (“Assignor”) to _______________________ (“Assignee”). Assignor and Assignee
are referred to at times, each individually as a “Party,” and collectively as the “Parties.”
Agreement
1. For good and valuable consideration and the payment of [INSERT PAYMENT
AMOUNT] ([INSERT NUMERICAL VALUE]), the receipt and sufficiency of which is hereby
acknowledged, confessed, stipulated and agreed upon by Assignor, Assignor ASSIGNS,
BARGAINS, GIVES, SETS OVER, CONVEYS, TRANSFERS and DELIVERS to Assignee all
of Assignor’s rights, title, interest, obligations, and duties under the Special Assessment
Agreement entered into by Assignor, _______________________, and
_______________________ (the “Transferred Interest”), together with all of Assignor’s rights
to receive payments from _______________________________ attributable to the Transferred
Interest arising on and after the date of this Assignment.
2. Assignor warrants that: (i) it is authorized to execute this document; (ii) it is
conveying good, indefeasible title to the Transferred Interest; and (iii) the Transferred Interest is
free and clear of all liens and encumbrances, and no party has any rights in or to acquire, or hold
as security, or otherwise, the Transferred Interest.
3. Assignor hereby agrees to make, execute and deliver to Assignee any and all
further instruments of conveyance, assignment or transfer, and any and all other instruments, as
may be necessary or proper to carry out the purpose and intent of this Assignment and/or to fully
vest Assignee in all rights, titles, interests obligations, and duties of Assignor in and to the
Transferred Interest, which instruments shall be delivered to Assignee as soon as possible
without any condition or delay on the part of Assignor.
4. Assignee hereby accepts all of Assignor’s rights, title, interest, obligations, and
duties under the Special Assessment Agreement and agrees to be bound by its terms. From and
after the date of this Assignment and satisfaction of the conditions contained in Section 8.02(b)
of the Special Assessment Agreement, Assignee shall be a party to the Special Assessment
Agreement and shall have the rights and obligations of the Assignor specified thereunder, and
Assignee shall be deemed to be the “Lender” for all purposes of the Special Assessment
Agreement.
5. All notices, certificates or communications provided pursuant to the Special
Assessment Agreement to Assignee shall be delivered as provided in the Special Assessment
Agreement to:
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_______________________________
(Name)
_______________________________
(Address)
_______________________________
(Attention)
IN WITNESS WHEREOF, Assignor and Assignee hereby agree to be bound by the terms
of this Assignment and each has executed this Assignment to be effective as of the Effective
Date.
ASSIGNOR:
____________________________________
[INSERT LENDER]
By: _________________________________
Its: _________________________________
ASSIGNEE:
____________________________________
Name: ______________________________
By: _________________________________
Its: _________________________________