The council may grant permits for the construction and maintenance of switch tracks or sidings across, along, under or over the streets, highways, bridges, or public places of the city. Such permits shall expressly provide that the permit is a mere license and subject at any time to revocation or change without compensation therefor; that the licensee will immediately upon any such revocation or change remove or alter such switch track or siding to comply therewith and will replace in good condition any street or public place affected thereby; that the licensee and all persons benefited thereby shall have no claim upon the city for any damage which may be caused by reason of any change of grade in such switch track or siding whether such change of grade shall be directly ordered or made necessary by the alteration of another track, and may provide such other conditions as may be deemed desirable for the protection of the interests of the city.
Any person or corporation having grants therefor from the state or the city may place its wires and electrical conductors in conduits under the surface of the streets or other public grounds in such manner as not to interfere unnecessarily with the use thereof for local improvements of any character or with sewers, water, water mains, gas mains, or branches thereof, subject to such regulations and restrictions as the council may prescribe by ordinance; provided, however, that the council shall not be authorized to require the use of any particular patent or appliance in such construction. Any such person or corporation shall, upon notice from the city engineer that a local improvement or sewer or water main, or branch thereof, is to be constructed in such manner as will necessitate the moving or altering of such conduits, shall move or alter the same at its own expense so as to permit such construction and on failure of such person or corporation to comply with such notice, the conduit or conduits may be altered or removed by the city and the cost and expense thereof recovered from such person or corporation.
All persons and corporations, having grants from the state or the city for the construction and maintenance of pipes, subways or conduits in the street or other public places, shall obtain permission for the construction, reconstruction or repair thereof from the city engineer.
City Electric Agency |
(a)
Pursuant to article fourteen-A of the general municipal law and other laws applicable thereto, a city electric agency ("agency") is hereby established for the purpose of operating a public utility electric service within the city's territorial limits to furnish to itself or, for compensation, to its inhabitants any electric service similar to that furnished by any public utility company specified in article 4 of the public service law, and also for the purpose of acquiring hydro-electric power from the power authority of the state of New York ("PASNY").
(b)
The method of acquiring and operating the necessary elements of such electric service shall be as follows:
(i)
The agency shall acquire hydro-electric power from PASNY for delivery to the local private utility company service area in the city;
(ii)
The agency shall agree with the local private utility company for the local private utility company to use or lease its distribution, substation and transmission facilities necessary to deliver PASNY hydroelectric power acquired by the agency to electric customers in the local private utility company service area in the city.
(c)
The method of furnishing such electric service shall consist of (1) acquiring PASNY hydro-electric power; (2) delivering said power to the local private utility company over the transmission and distribution facilities of PASNY and such other entities at transmission or distribution voltages as may be required to ensure proper power availability to the local private utility company; (3) delivering said power over the local private utility company's transmission, substation and distribution facilities, for compensation, to electric customers in the local private utility company service area within the city. The local private utility company may, by agreement with the agency, deliver said power and collect and remit to the agency the charges therefor.
(d)
All agreements entered into in furtherance of acquisition and operation of the agency's service shall first be approved by the common council. Rates for the sale of PASNY hydro-electric power by the agency shall be established by the common council and shall be sufficient to permit the agency to recover its costs of doing business, but shall not provide any profit or return on investment to the agency. Any reduction in utility gross receipts tax revenues received by the city as a result of the implementation of this section may be paid by the agency as an in-lieu-of tax payment to the city. Any reduction in property tax revenues received by the city from the local private utility company as a result of the implementation of this section shall be paid by the local private utility company as an in-lieu-of tax payment to the city. Except as otherwise required by PASNY pursuant to applicable law, and to the maximum extent practicable, the PASNY hydro-electric power acquired by the agency shall be furnished first to fulfill the electric energy requirements of city residential consumers, and then may be furnished to fulfill the electric energy requirements of the city and other municipal corporations, and to fulfill the electric energy requirements of all other classes of electric customers, including commercial and industrial customers. Nothing contained in this section provides, or is intended to provide, or shall be construed or interpreted as providing, that the furnishing of PASNY hydro-electric power by the agency to purchasers who are also electric customers of the local private utility company shall diminish the geographic boundaries of the local private utility company's service area, or the legal status of said purchasers as customers of the local private utility company.
(e)
The method of acquiring and operating the electric service described in this section contemplates neither the exercise of any power of condemnation by the city or the agency of the local private utility company generation, distribution and transmission system, nor the establishment by the city or the agency of transmission or distribution facilities separate from the local private utility company. However, nothing in this section prohibits the city from acquiring, constructing or owning facilities for lighting its streets.
(a)
Any material amendment of this article, including any attempt by the city or the agency to exercise the power of condemnation of the local private utility company's generation, distribution and transmission system, or to establish transmission or distribution facilities separate from the local private utility company for the purpose of this article, shall not be effective unless approved by the voters at a referendum as required by article fourteen-A of the general municipal law.
(b)
It is presently estimated that the total annual cost of the agency's acquiring PASNY hydro-electric power for city residential electric customers will range from two million six hundred four thousand dollars (if the agency acquires enough PASNY power to satisfy the balance of the total city residential electric demand beyond the PASNY power presently acquired for city residential electrical customers by the local private utility company) to a maximum of four million seven hundred fourteen thousand dollars (if the agency acquired all the PASNY power needed to satisfy the total city residential electrical demand without the local private utility company acquiring any PASNY power for city residential electric customers).
(c)
It is presently estimated that the total annual cost of using the local private utility company's facilities to deliver PASNY hydro-electric power to city residential electric customers will range from nine million eight hundred thirty-seven thousand dollars (if the agency acquires enough PASNY power to satisfy the balance of the total city residential electric demand beyond the PASNY power presently acquired for city residential electric customers by the local private utility company) to a maximum of seventeen million eight hundred eight thousand dollars (if the agency acquires all the PASNY power needed to satisfy the total city residential electric demand without the local private utility company acquiring any PASNY power for city residential electric customers)
[Added 12-10-2019 by L.L. No. 2-2020]
A.
It is the policy of both the City of Buffalo (the "City") 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 City 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 local law establishes a program that will allow the Energy Improvement Corporation (as defined below, "EIC"), a local development corporation, acting on behalf of the City pursuant to the municipal agreement (the "Municipal Agreement") to be entered into between the City and EIC, to make funds available to Qualified Property Owners that will be repaid through charges on the real properties benefited by such funds, thereby fulfilling the purposes of this local law and accomplishing an important public purpose. This local law 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").
[Added 12-10-2019 by L.L. No. 2-2020]
A.
The City of Buffalo 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 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 local law.
[Added 12-10-2019 by L.L. No. 2-2020]
A.
Capitalized terms used but not defined herein have the meanings assigned in the Enabling Act.
B.
For purposes of this local law, and unless otherwise expressly stated or unless the context requires, the following terms shall have the meanings indicated:
Annual Installment Amount - shall have the meaning assigned in section 26-13 (B) of this local law.
Annual Installment Lien - shall have the meaning assigned in section 26-13(B) of this local law.
Authority - the New York State Energy Research and Development Authority.
Benefit Assessment Lien - shall have the meaning assigned in section 26-8 (A) of this local law.
Benefited Property - Qualified Property for which the Qualified Property Owner has entered into a Finance Agreement for a Qualified Project.
Benefited Property Owner - the owner of record of a Benefited Property.
EIC - 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 City of Buffalo to implement the Program by providing funds to Qualified Property Owners and providing for repayment of such funds from money collected by or on behalf of the City as a charge to be levied on the real property.
Eligible Costs - 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
Enabling Act - Article 5-L of the General Municipal Law of the State, or a successor law, as in effect from time to time.
Finance Agreement - the finance agreement described in section 26-11(A) of this local law.
Financing Charges - 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.
Financing Parties - 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 City.
City - the City of Buffalo, a Municipal Corporation of the State constituting a tax district as defined in Section 1102 of the RPTL of the State.
Municipal Lien - 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.
Non-Municipal Lien - 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
Program - the Energize NY Open C-PACE Financing Program authorized hereby.
Qualified Project - 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 in whole or in part by Financing Parties under the Program to achieve the purposes of the Enabling Act.
Qualified Property - Any real property other than a residential building containing less than three dwelling units, which is within the boundaries of the City that has been determined to be eligible to participate in the Program under the procedures for eligibility set forth under this local law and the Enabling Act and has become the site of a Qualified Project.
Qualified Property Owner - 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.
RPTL - the Real Property Tax Law of the State, as amended from time to time.
Secured Amount - 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 section 26-13.
State - the State of New York.
[Added 12-10-2019 by L.L. No. 2-2020]
A.
An Energize NY Open C-PACE Financing Program is hereby established by the City, 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 local law, 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 City, 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 City. Such recording shall be exempt from any charge, mortgage recording tax or other fee in the same manner as if recorded by the City.
B.
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.
[Added 12-10-2019 by L.L. No. 2-2020]
A.
Any property owner in the City of Buffalo 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 at the City's Office of Real Estate or any other City locations.
B.
Every application submitted by a property owner shall be reviewed by EIC, acting on behalf of the City, which shall make a positive or negative determination on such application based upon the criteria enumerated in the Enabling Act and section 26-10 of this local law. EIC may also request further information from the property owner where necessary to aid in its determination.
[Added 12-10-2019 by L.L. No. 2-2020]
Upon the submission of an application, EIC, acting on behalf of the City of Buffalo, shall make a positive or negative determination on such application based upon the following criteria for the making of a financing:
A.
The property owner may not be in bankruptcy and the property may not constitute property subject to any pending bankruptcy proceeding;
B.
The amount financed under the Program shall be repaid over a term not to exceed the weighted average of the useful life of Renewable Energy Systems and Energy Efficiency Improvements to be installed on the property as determined by EIC;
C.
Sufficient funds are available from Financing Parties to provide financing to the property owner;
D.
The property owner is current in payments on any existing mortgage on the Qualified Property;
E.
The property owner is current in payments on any real property taxes, charges, user fees and has no outstanding code violations on the Qualified Property;
F.
The property owner does not own, or have any ownership interest, in any real property in the City of Buffalo that is delinquent on any property taxes or water charges; and
G.
Such additional criteria, not inconsistent with the criteria set forth above, by the State, the City, or EIC acting on its behalf, or other Financing Parties may set from time to time.
[Added 12-10-2019 by L.L. No. 2-2020]
A.
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 City, 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.
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 local law have been met.
C.
The Finance Agreement shall include the terms and conditions of repayment of the Secured Amount and the Annual Installment Amounts.
D.
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.
[Added 12-10-2019 by L.L. No. 2-2020]
The Finance Agreement shall set forth the terms and conditions of repayment in accordance with the following:
A.
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 City. 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 City, and shall be paid to the Financing Party as provided in the Finance Agreement.
B.
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 City.
C.
The rate of interest for the Secured Amount shall be fixed by the Financing Party in conjunction with EIC, acting on behalf of the City, as provided in the Finance Agreement.
[Added 12-10-2019 by L.L. No. 2-2020]
A.
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 City. 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 City, in the land records for properties in the City. Such recording shall be exempt from any charge, mortgage recording tax or other fee in the same manner as if recorded by the City. The Benefit Assessment Lien shall not be foreclosed upon by or otherwise enforced by the City.
B.
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 City, on the Benefited Property in the same manner as levies for the City charges, shall become a lien on the Benefited Property as of the twentieth day of June 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 City. 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.
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 City, 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.
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 City, 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 City, or the Financing Party, as may be provided in the Finance Agreement.
E.
EIC shall act as the City of Buffalo'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.
EIC, on behalf of the City, 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 City, 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 City 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.
[Added 12-10-2019 by L.L. No. 2-2020]
EIC, on behalf of the City, shall verify and report on the installation and performance of Renewable Energy Systems and Energy Efficiency Improvements financed by the Program in such form and manner as the Authority may establish.
[Added 12-10-2019 by L.L. No. 2-2020]
If any clause, sentence, paragraph, section, or part of this local law shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section, or part thereof involved in the controversy in which such judgment shall have been rendered.