[HISTORY: Adopted by the County Legislature of the County
of Ulster as indicated in article histories. Amendments noted where
applicable.]
[Adopted 10-21-2014 by L.L. No. 6-2014; amended in its entirety 11-19-2019 by L.L. No.
9-2019]
This article shall be known as the "Energize NY Open C-PACE
Benefit Financing Program."
A.ย
It is the policy of both the County of Ulster (the "County") and
the State of New York (the "State") to achieve energy efficiency and
renewable energy improvements, reduce greenhouse gas emissions, mitigate
the effect of global climate change, and advance a clean energy economy.
The County finds that it can fulfill this policy by providing property
assessed clean energy financing to Qualified Property Owners (as defined
below) for the installation of renewable energy systems and energy
efficiency measures. This article establishes a program that will
allow the Energy Improvement Corporation (as defined below, "EIC"),
a local development corporation, acting on behalf of the County pursuant
to the municipal agreement (the "Municipal Agreement") to be entered
into between the County and the EIC, to make funds available to Qualified
Property Owners that will be repaid by such property owners through
charges on the real properties benefited by such funds, thereby fulfilling
the purposes of this article and fulfilling an important public purpose.
This article provides a method of implementing the public policies
expressed by, and exercising the authority provided by, Article 5-L
of the General Municipal Law (as defined below, the "Enabling Act").
B.ย
The County is authorized to execute, deliver and perform the Municipal
Agreement and otherwise to implement this Energize NY Open C-PACE
Financing Program pursuant to the the Constitution and laws of New
York, including particularly Article IX of the Constitution, Section
10 of the Municipal Home Rule Law, the Enabling Act and this article.
C.ย
This article, which is adopted pursuant to Section 10 of the Municipal
Home Rule Law and the Enabling Act shall be known and may be cited
as the "Energize NY Open C-PACE Local Law."
A.ย
Capitalized terms used but not defined herein have the meanings assigned
in the Enabling Act.
B.ย
ANNUAL INSTALLMENT AMOUNT
ANNUAL INSTALLMENT LEIN
AUTHORITY
BENEFIT ASSESSMENT LIEN
BENEFITED PROPERTY
BENEFITED PROPERTY OWNER
COUNTY
EIC
ELIGIBLE COSTS
ENABLING ACT
ENERGY AUDIT
ENERGY EFFICIENCY IMPROVEMENT
FINANCE AGREEMENT
FINANCING CHARGES
FINANCING PARTIES
MUNICIPAL LIEN
NON-MUNICIPAL LIEN
PROGRAM
QUALIFIED PROJECT
QUALIFIED PROPERTY
QUALIFIED PROPERTY OWNER
RPTL
SECURED AMOUNT
STATE
For purposes of this article, and unless otherwise expressly stated
or unless the context requires, the following terms shall have the
meanings indicated:
Shall have the meaning assigned in ยงย 190-9B.
Shall have the meaning assigned in ยงย 190-98.
The New York State Energy Research and Development Authority,
as defined by Subdivision 2 of ยงย 1851 of the Public Authorities
Law, or its successor.
Shall have the meaning assigned in ยงย 190-4A.
Qualified Property for which the Qualified Property Owner
has entered into a Finance Agreement for a Qualified Project.
The owner of record of a Benefited Property.
The County of Ulster, a municipality of the State constituting
a tax district as defined in Section 1102 of the RPTL of the State.
The Energy Improvement Corporation, a local development corporation,
duly organized under Section 1411 of the Not-For-Profit Corporation
Law of the State, authorized hereby on behalf of the County to implement
the Qualified Property Owners and providing for repayment of such
funds from monies collected by or on behalf of the County as a charge
to be levied on the real property.
Costs incurred by the Benefited Property Owner in connection
with a Qualified Project and the related Finance Agreement, including
application fees, EIC's Program administration fee, closing costs
and fees, title and appraisal fees, professionals' fees, permits,
fees for design and drawings and any other related fees, expenses
and costs, in each case as approved by EIC and the Financing Party
under the Finance Agreement.
Article 5-L of the General Municipal Law of the State, or
a successor law, as in effect from time to time.
A formal evaluation or assessment of the energy consumption
of a permanent building or structural improvement to real property,
conducted by a contractor certified by the Authority, or certified
by a certifying entity approved by the Authority, for the purpose
of identifying appropriate energy efficiency improvements that could
be made to the property.
Any renovation or retrofitting of a building to reduce energy
consumption, such as window and door replacement, lighting, caulking,
weather stripping, air sealing, insulation, and heating and cooling
system upgrades, and similar improvements, determined to be cost effective
pursuant to criteria established by the Authority, not including lighting
measures or household appliances that are not permanently fixed to
real property.
The finance agreement described in ยงย 190-7A of this article.
All charges, fees and expenses related to the loan under
the Finance Agreement including accrued interest, capitalized interest,
prepayment premiums, and penalties as a result of a default or late
payment and costs and reasonable attorneys' fees incurred by
the Financing Party as a result of a foreclosure or other legal proceeding
brought against the Benefited Property to enforce any delinquent Annual
Installment Liens.
Third-party capital providers approved by EIC to provide
financing to Qualified Property Owners or other financial support
to the Program which have entered into separate agreements with EIC
to administer the Program in the County.
A lien on Qualified Property which secures the obligation
to pay real property taxes, municipal charges, or governmentally imposed
assessments in respect of services or benefits to a Qualified Property.
A lien on Qualified Property which secures any obligation
other than the obligation to pay real property taxes, municipal charges,
or governmentally-imposed assessments in respect of services or benefits
to a Qualified Property Owner or Qualified Property.
The Energize NY Open C-PACE Financing Program authorized
hereby.
The acquisition, construction, reconstruction or equipping
of Energy Efficiency Improvements or Renewable Energy Systems or other
projects authorized under the Enabling Act on a Qualified Property,
together with a related Energy Audit, Renewable Energy System Feasibility
Study and/or other requirements under or pursuant to the Enabling
Act, with funds provided by Financing Parties under the Program to
achieve the purposes of the Enabling Act.
Any real property other than a residential building containing
less than three dwelling units, which is within the boundaries of
the County that has been determined to be eligible to participate
in the Program under the procedures for eligibility set forth under
this article and the Enabling Act and has become the site of a Qualified
Project.
The owner of record of Qualified Property which has been
determined by EIC to meet the requirements for participation in the
Program as an owner, and any transferee owner of such Qualified Property.
The Real Property Tax Law of the State, as amended from time
to time.
As of any date, the aggregate amount of principal loaned
to the Qualified Property Owner for a Qualified Project, together
with Eligible Costs and Financing Charges, as provided herein or in
the Finance Agreement, as reduced pursuant to ยงย 180-9C.
The State of New York.
A.ย
An Energize NY Open C-PACE Financing Program is hereby established
by the County, whereby EIC, acting on its behalf pursuant to the Municipal
Agreement, may arrange for the provision of funds by Financing Parties
to Qualified Property Owners in accordance with the Enabling Act and
the procedures set forth under this article, to finance the acquisition,
construction, reconstruction, and installation of Qualified Projects
and Eligible Costs and Financing Charges approved by EIC and by the
Financing Party under the Finance Agreement. EIC, on behalf of the
County, and with the consent of the Benefited Property Owner, will
record a Benefit Assessment Lien on the Benefited Property in the
Secured Amount (the "Benefit Assessment Lien") on the land records
for the County. Such recording shall be exempt from any charge, mortgage
recording tax or other fee in the same manner as if recorded by the
County.
B.ย
Before a Qualified Property Owner and a Financing Party enter into
a Finance Agreement which results in a loan to finance a Qualified
Project, repayment of which is secured by a Benefit Assessment Lien,
a written consent from each existing mortgage holder of the Qualified
Property shall be obtained, permitting the Benefit Assessment Lien
and each Annual Installment Lien to take priority over all existing
mortgages.
A.ย
Any property owner in the County may submit an application to EIC
on such forms as have been prepared by EIC and made available to property
owners on the website of EIC and on the Ulster County government website.
B.ย
Every application submitted by a property owner shall be reviewed by EIC, acting on behalf of the County, which shall make a positive or negative determination on such application based upon the criteria enumerated in the Enabling Act and ยงย 190-6 of this article. EIC may also request further information from the property owner, where necessary, to aid in its determination.
C.ย
If a positive determination on an application is made by EIC, acting
on behalf of the County, the property owner shall be deemed a Qualified
Property Owner and shall be eligible to participate in the Program
in accordance with Section 7 of this article.
Upon the submission of an application, EIC, acting on behalf
of the County, shall make a positive or negative determination on
such application based upon the following criteria for the making
of a financing:
A.ย
The property owner may not be in bankruptcy and the property may
not constitute property subject to any pending bankruptcy proceeding;
B.ย
The amount financed under the Program shall be repaid over a term
not to exceed the weighted average of the useful life of the Renewable
Energy Systems and Energy Efficiency Improvements to be installed
on the property as determined by EIC;
C.ย
Sufficient funds are available from Financing Parties to provide
financing to the property owner;
D.ย
The property owner is current in payments on any existing mortgage
on the Qualified Property;
E.ย
The property owner is current in payments on any existing real property
taxes on the Qualified Property; and
F.ย
Such additional criteria, not inconsistent with the criteria set
forth above, as the State, the County, or EIC acting on its behalf,
or other Financing Parties may set from time to time.
A.ย
A Qualified Property Owner may participate in the Program through
the execution of a finance agreement made by and between the Qualified
Property Owner and a Financing Party, to which EIC, on behalf of the
County, shall be a third-party beneficiary (the "Finance Agreement").
Upon execution and delivery of the Finance Agreement, the property
that is the subject of the Finance Agreement shall be deemed a "Benefited
Property").
B.ย
Upon execution and delivery of the Finance Agreement, the Benefited
Property Owner shall be eligible to receive funds from the Financing
Party for the acquisition, construction, and installation of a Qualified
Project, together with Eligible Costs and Financing Charges approved
by EIC and by the Financing Party, provided the requirements of the
Enabling Act, the Municipal Agreement and this article have been met.
C.ย
The Finance Agreement shall include the terms and conditions of repayment
of the Secured Amount and the Annual Installment Amounts.
D.ย
EIC may charge fees to offset the costs of administering the Program
and such fees, if not paid by the Financing Party, shall be added
to the Secured Amount.
The Finance Agreement shall set forth the terms and conditions
of repayment in accordance with the following:
A.ย
The principal amount of the funds loaned to the Benefited Property
Owner for the Qualified Project, together with Eligible Costs and
Financing Charges approved by EIC and by the Financing Party, shall
be specially assessed against the Benefited Property and will be evidenced
by a Benefit Assessment Lien recorded against the Benefited Property
on the land records on which liens are recorded for properties within
the County. The special benefit assessment shall constitute a "charge"
within the meaning of the Enabling Act and shall be collected in annual
installments in the amounts certified by the Financing Party in a
schedule provided at closing and made part of the Benefit Assessment
Lien. Said amount shall be annually levied, billed and collected by
EIC, on behalf of the County, and shall be paid to the Financing Party
as provided in the Finance Agreement.
B.ย
The term of such repayment shall be determined at the time the Finance
Agreement is executed by the Benefited Property Owner and the Financing
Party, not to exceed the weighted average of the useful life of the
systems and improvements as determined by EIC acting on behalf of
the County.
C.ย
The rate of interest for the Secured Amount shall be fixed by the
Financing Party in conjunction with the EIC, acting on behalf of the
County, as provided in the Finance Agreement.
A.ย
Upon the making of the loan pursuant to the Finance Agreement, the
Secured Amount shall become a special Benefit Assessment Lien on the
Benefited Property in favor of the County. The amount of the Benefit
Assessment Lien shall be the Secured Amount. Evidence of the Benefit
Assessment Lien shall be recorded by EIC, on behalf of the County,
in the land records for properties in the County. Such recording shall
be exempt from any charge, mortgage recording tax or other fee in
the same manner as if recorded by the County. The Benefit Assessment
Lien shall not be foreclosed upon by or otherwise enforced by the
County.
B.ย
The Finance Agreement shall provide for the repayment of the Secured
Amount in installments made at least annually, as provided in a schedule
attached to the Benefit Assessment Lien (the "Annual Installment Amount").
The Annual Installment Amount shall be levied by EIC, on behalf of
the County, on the Benefited Property in the same manner as levies
for municipal charges or taxes, shall become a lien on the Benefited
Property as of the first day of January of the fiscal year for which
levied (the "Annual Installment Lien") and shall remain a lien until
paid. The creation or any recording of the Annual Installment Lien
shall be exempt from any charge, mortgage recording tax or other fee
in the same manner as if recorded by the County. Payment to the Financing
Party shall be considered payment for this purpose. Such payment shall
partly or wholly discharge the Annual Installment Lien. Delinquent
Annual Installment Amounts may accrue Financing Charges as may be
provided in the Finance Agreement. Any additional Financing Charges
imposed by the Financing Party pursuant to the Finance Agreement shall
increase the Annual Installment Amount and the Annual Installment
Lien for the year in which such overdue payments were first due.
C.ย
The Benefit Assessment Lien shall be reduced annually by the amount
of each Annual Installment Lien when each Annual Installment Lien
becomes a lien. Each Annual Installment Lien shall be subordinate
to all Municipal Liens, whether created by Section 902 of the RPTL
or by any other State or local law. No portion of a Secured Amount
shall be recovered by the County, EIC, or an assignee upon foreclosure,
sale or other disposition of the Benefited Property unless and until
all Municipal Liens are fully discharged. Each Annual Installment
Lien, however, shall have priority over all Non-Municipal Liens, irrespective
of when created, except as otherwise required by law.
D.ย
Neither the Benefit Assessment Lien nor any Annual Installment Lien
shall be extinguished or accelerated in the event of a default or
bankruptcy of the Benefited Property Owner. Each Annual Installment
Amount shall be considered a charge upon the Benefited Property and
shall be collected by EIC, on behalf of the County, at the same time
and in the same manner as real property taxes or municipal charges.
Each Annual Installment Lien shall remain a lien until paid. Amounts
collected in respect of an Annual Installment Lien shall be remitted
to EIC, on behalf of the County, or the Financing Party, as may be
provided in the Finance Agreement.
E.ย
EIC shall act as the County's agent in collection of the Annual
Installment Amounts. If any Benefited Property Owner fails to pay
an Annual Installment Amount, the Financing Party may redeem the Benefited
Property by paying the amount of all unpaid Municipal Liens thereon,
and thereafter shall have the right to collect any amounts in respect
of an Annual Installment Lien by foreclosure or any other remedy available
at law. Any foreclosure shall not affect any subsequent Annual Installment
Liens.
F.ย
EIC, on behalf of the County, may sell or assign for consideration
any and all Benefit Assessment Liens and Annual Installment Liens
to Financing Parties that provide financing to Qualified Properties
pursuant to Finance Agreements. The Financing Parties may sell or
assign for consideration any and all Benefit Assessment Liens and
Annual Installment Liens received from EIC, on behalf of the County,
subject to certain conditions provided in the administration agreement
between EIC and the Financing Party. The assignee or assignees of
such Benefit Assessment Liens and Annual Installment Liens shall have
and possess the same powers and rights at law or in equity as the
County would have had if the Benefit Assessment Lien and the Annual
Installment Liens had not been assigned with regard to the precedence
and priority of such lien, the accrual of interest and the fees and
expenses of collection.
A.ย
EIC, on behalf of the County, shall verify and report on the installation
and performance of Renewable Energy Systems and Energy Efficiency
Improvements financed by such Program in such form and manner as the
Authority may establish.