[HISTORY: Adopted by the Town Council of the Town of Cumberland
as indicated in article histories. Amendments noted where applicable.]
[Adopted 9-22-2010]
By and through this article, the Town of Cumberland declares
as its public purpose the establishment of a municipal program to
enable its citizens to participate in a property-assessed clean energy
("PACE") program so that owners of qualifying property can access
financing for energy-saving improvements to their properties located
in the Town. The Town of Cumberland declares its purpose and the provisions
of this article to be in conformity with federal and State laws.
The Town enacts this article pursuant to Public Law 2009, Chapter
591, of the 124th Maine State Legislature, "An Act To Increase the
Affordability of Clean Energy for Homeowners and Businesses," also
known as "the Property Assessed Clean Energy Act" or "the PACE Act"
(codified at 35-A M.R.S.A. § 10151 et seq.).
This article shall be known and may be cited as "the Town of
Cumberland Property Assessed Clean Energy (PACE) Ordinance" (this
"article").
Except as specifically defined below, words and phrases used
in this article shall have their customary meanings; as used in this
article, the following words and phrases shall have the meanings indicated:
An improvement to qualifying property that is new and permanently
affixed to qualifying property and that:
Will result in increased energy efficiency and substantially
reduced energy use and:
Meets or exceeds applicable United States Environmental Protection
Agency and United States Department of Energy Energy Star program
or similar energy efficiency standards established or approved by
the trust; or
Involves air sealing, insulating, and other energy efficiency
improvements of residential, commercial or industrial property in
a manner approved by the trust; or
Involves a renewable energy installation or an electric thermal
storage system that meets or exceeds standards established or approved
by the trust.
The Town of Cumberland.
An agreement between the owner of qualifying property and
the trust that authorizes the creation of a PACE mortgage on qualifying
property and that is approved in writing by all owners of the qualifying
property at the time of the agreement, other than mortgage holders.
An assessment made against qualifying property to repay a
PACE loan.
The area within which the municipality establishes a PACE
program hereunder, which is all that area within the municipality's
boundaries.
A loan, secured by a PACE mortgage, made to the owner(s)
of a qualifying property pursuant to a PACE program to fund energy-saving
improvements.
A mortgage securing a loan made pursuant to a PACE program
to fund energy-saving improvements on qualifying property.
A program established under state statute by the trust or
a municipality under which property owners can finance energy-savings
improvements on qualifying property.
Real property located in the PACE district of the municipality.
A fixture, product, system, device or interacting group of
devices installed behind the meter at a qualifying property, or on
contiguous property under common ownership, that produces energy or
heat from renewable sources, including, but not limited to, photovoltaic
systems, solar thermal systems, biomass systems, landfill gas to energy
systems, geothermal systems, wind systems, wood pellet systems and
any other systems eligible for funding under federal Qualified Energy
Conservation Bonds or federal Clean Renewable Energy Bonds.
The Efficiency Maine Trust established in 35-A M.R.S.A. § 10103
and/or its agent(s), if any.
A.
Establishment; funding. The municipality hereby establishes a PACE
program allowing owners of qualifying property located in the PACE
district who so choose to access financing for energy-saving improvements
to their property through PACE loans administered by the trust or
its agent. PACE loan funds are available from the trust in municipalities
that:
(1)
Adopt a PACE Ordinance;
(2)
Adopt and implement a local public outreach and education plan;
(3)
Enter into a PACE administration contract with the trust to establish
the terms and conditions of the trust's administration of the municipality's
PACE program; and
(4)
Agree to assist and cooperate with the trust in its administration
of the municipality's PACE program.
B.
Amendment to PACE program. In addition, the municipality may from
time to time amend this article to use any other funding sources made
available to it or appropriated by it for the express purpose of its
PACE program, and the municipality shall be responsible for administration
of loans made from those other funding sources.
Standards adopted; rules promulgated; model documents: If the
trust adopts standards, promulgates rules, or establishes model documents
subsequent to the municipality's adoption of this article and those
standards, rules or model documents substantially conflict with this
article, the municipality shall take necessary steps to conform this
article and its PACE program to those standards, rules, or model documents.
A.
Program administration.
(1)
PACE administration contract. Pursuant to 35-A M.R.S.A. § 10154(2)A(2)
and B, the municipality will enter into a PACE administration contract
with the trust to administer the functions of the PACE program for
the municipality. The PACE administration contract with the trust
will establish the administration of the PACE program, including,
without limitation, that:
(a)
The trust will enter into PACE agreements with owners of qualifying
property in the municipality's PACE district;
(b)
The trust, or its agent, will create and record a notice of
the PACE agreement in the appropriate County Registry of Deeds to
create a PACE mortgage;
(c)
The trust, or its agent, will disburse the PACE loan to the
property owner;
(d)
The trust, or its agent, will send PACE assessment statements
with payment deadlines to the property owner;
(e)
The trust, or its agent, will be responsible for collection
of the PACE assessments;
(f)
The trust, or its agent, will record any lien, if needed, due
to nonpayment of the assessment;
(g)
The municipality, or the trust or its agent on behalf of the
Municipality, promptly shall record the discharges of PACE mortgages
upon full payment of the PACE loan.
(2)
Adoption of education and outreach program. In conjunction with adopting
this article, the municipality shall adopt and implement an education
and outreach program so that citizens of the municipality are made
aware of home energy saving opportunities, including the opportunity
to finance energy-saving improvements with a PACE loan.
(3)
Assistance and cooperation. The municipality will assist and cooperate
with the trust in its administration of the municipality's PACE program.
(4)
Assessments not a tax. PACE assessments do not constitute a tax but
may be assessed and collected by the trust in any manner determined
by the trust and consistent with applicable law.
B.
Liability of municipal officials; liability of municipality.
(1)
Notwithstanding any other provision of law to the contrary, municipal
officers and municipal officials, including, without limitation, tax
assessors and tax collectors, are not personally liable to the trust
or to any other person for claims, of whatever kind or nature, under
or related to a PACE program, including, without limitation, claims
for or related to uncollected PACE assessments.
[Adopted 7-10-2023]
A.
Purpose. By and through this article, the Town of Cumberland declares
as its public purpose the establishment of a municipal program to
enable its citizens to participate in a commercial property assessed
clean energy ("C-PACE") program so that owners of qualifying property
can access financing for energy savings improvements to their commercial
properties located in the Town. The Town declares its purpose and
the provisions of this article to be in conformity with federal and
state laws.
B.
Authority. This article is enacted pursuant to 35-A M.R.S. § 10201
et seq., as amended.
Except as specifically defined below, words and phrases used
in this article shall have their customary meanings. As used in this
article, the following words and phrases shall have the meanings indicated:
35-A M.R.S. § 10201 et seq., as amended.
An agreement that authorizes the creation of a commercial
PACE assessment on qualifying property and that is approved in writing
by all owners of the qualifying property at the time of the agreement
and by Town Council.
An assessment made against qualifying property to finance
an energy savings improvement.
The area within which the Town establishes a commercial PACE
program hereunder, which is all that area within the Town's boundaries.
A lien secured against a qualifying property that is created
by a commercial PACE assessment.
A loan, payable through a commercial PACE assessment and
secured by a C- PACE lien, made to the owner(s) of a qualifying property
pursuant to a commercial PACE program to fund energy savings improvements.
Commercial property assessed clean energy.
A program established under this article pursuant to the
Commercial PACE Act under which commercial property owners can finance
energy savings improvements on qualifying property.
An improvement or series of improvements to qualifying property
that are new and permanently affixed to qualifying property and that:
Will result in increased energy efficiency or substantially
reduced energy use and:
Meet or exceed applicable United States Environmental Protection
Agency and United States Department of Energy "ENERGY STAR®" program or similar energy efficiency standards
established or approved by the Trust; or
Involve weatherization of commercial or industrial property
in a manner approved by the Trust; or
Involve a renewable energy installation, an energy storage system
as defined in 35-A M.R.S. § 3481(6), an electric thermal
storage system, electric vehicle supply equipment or heating equipment
that meets or exceeds standards established or approved by the Trust.
Heating equipment that is not a renewable energy installation must
be heating equipment that produces the lowest carbon emissions of
any heating equipment reasonably available to the property owner,
as determined by the Trust, and must meet the requirements of 35-A
M.R.S. § 10204(1)(B).
Real commercial property in the Town that:
Does not have a residential mortgage;
Is not owned by a residential customer or small commercial customer
as defined in 35-A M.R.S. § 3016(1)(C) and (D), respectively;
Consists of five or more rental units if the property is a commercial
building designed for residential use;
Is not owned by a federal, state or municipal government or
public school; and
Is located in a municipality that participates in a commercial
PACE program.
An approved lender proving financing for the energy savings
improvements through a C-PACE program and registered with Efficiency
Maine Trust.
A fixture, product, system, device or interacting group of
devices installed behind the meter at a qualifying property, or on
contiguous property under common ownership, that produces energy or
heat from renewable sources, including but not limited to, photovoltaic
systems, solar thermal systems, highly efficient wood heating systems,
geothermal systems and wind systems that do not on average generate
more energy or heat than the peak demand of the property.
The Town of Cumberland.
The Efficiency Maine Trust, established in 35-A M.R.S. § 10103
and/or its agents, if any.
A.
Establishment. The Town hereby establishes a commercial PACE program,
allowing owners of qualifying property located in the Town who so
choose to access financing for energy savings improvements to their
qualifying property, with such financing to be repaid through a commercial
PACE assessment and secured by a commercial PACE lien.
B.
The Town may:
(1)
Administer the functions of the commercial PACE program, including,
but not limited to, entering into commercial PACE agreements with
commercial property owners and collecting commercial PACE assessments,
or designating an agent to act on behalf of the Town for such billing
and collection purposes; or
(2)
Enter into a contract with the Trust to administer some or all functions
of the commercial PACE program for the Town, including billing and
collection of commercial PACE assessments, subject to the limitations
set forth in § 10205, Subsection 5 of the Commercial PACE
Act.
C.
Amendment to or repeal of commercial PACE program. The Town may from
time to time amend this article to use any funding sources made available
to it or appropriated by it for the express purpose of its commercial
PACE program, and the Town shall be responsible for administration
of loans made from those funding sources. The Town may also repeal
this article in the same manner as it was adopted; provided, however,
that such repeal shall not affect the validity of any commercial PACE
agreements entered into by the Town prior to the effective date of
such repeal, or a commercial PACE loan or commercial PACE lien arising
out of such agreements.
C-PACE loans may be provided by any qualified capital provider
private lender participating in the C-PACE program and a C-PACE agreement
may contain any terms agreed to by the lender and the property owner,
as permitted by law, for the financing of energy savings improvements.
Unless the Town specifically designates funding sources made available
to it or appropriated by it for the express purpose of its commercial
PACE program and agrees to provide financing for energy savings improvements,
the Town will not finance or fund any loan under the commercial PACE
program, and shall serve only as a program sponsor to facilitate loan
repayment by including the commercial PACE assessment on the property
tax bill for the property, and shall incur no liability for the loan.
A.
Agreement required. All commercial property owners seeking financing
for energy savings improvements on qualifying property pursuant to
the commercial PACE program must enter into a commercial PACE agreement,
approved as to form and substance by the Town, authorizing the creation
of a commercial PACE assessment and acknowledging the creation of
a commercial PACE lien. A notice of the commercial PACE agreement
will be filed in the Cumberland County Registry of Deeds, which filing
will create a lien until the amounts due under the agreement are paid
in full.
B.
Underwriting standards. A commercial PACE agreement entered into
pursuant to the commercial PACE program must satisfy the minimum underwriting
requirements of the Commercial PACE Act and such additional requirements
established by the Trust.
C.
Collection of assessments.
(1)
A commercial property owner participating in the commercial PACE
program will repay the financing of energy savings improvements through
an assessment on their property similar to a tax bill. A commercial
PACE assessment constitutes a lien on the qualifying property until
it is paid in full and must be assessed and collected by the Town
or its designated agent, the Trust, or a third-party administrator
contracted by the Trust, consistent with applicable laws. The Town
may, by written agreement, designate the applicable third-party capital
provider as its agent for the billing and collection of commercial
PACE assessment payments in satisfaction of the commercial PACE loan.
Where commercial PACE assessment payments are received directly by
the Town along with other municipal tax payments, such payments received
from property owners shall first be applied to Town taxes, assessments,
and charges. The Town shall have no ownership of the commercial PACE
assessments collected except for any administrative costs provided
under the commercial PACE program. The Town shall pay all commercial
PACE assessment payments in any calendar month to the applicable capital
provider or the commercial PACE program administrator within 30 days
after the end of the month in which such amounts are collected. The
Town shall have no obligation to make payments to any capital provider
with respect to any Commercial PACE repayment amounts or loan obligations
other than that portion of the commercial PACE assessment actually
collected from a property owner for the repayment of a Commercial
PACE Loan.
(2)
If the Trust or a 3rd-party administrator contracted by the Trust
or an agent of the Town collects commercial PACE assessments on behalf
of the Town, the Trust or agent shall periodically report to the Town
on the status of the commercial PACE assessments in the Town and shall
notify the Town of any delinquent commercial PACE assessments. Upon
receiving notification from the Trust or agent of a delinquent commercial
PACE assessment, the Town shall notify the holder of any mortgage
on the property of the delinquent assessment.
D.
Notice; filing. A notice of a commercial PACE agreement must be filed
in the Cumberland County Registry of Deeds. The filing of this notice
creates a commercial PACE lien against the property subject to the
commercial PACE assessment until the amounts due under the terms of
the commercial PACE agreement are paid in full. The notice must include
the information required by the Commercial PACE Act.
E.
Priority. A commercial PACE lien secures payment for any unpaid commercial
PACE assessment and, together with all associated interest and penalties
for default and associated attorney's fees and collection costs,
takes precedence over all other liens or encumbrances except a lien
for real property taxes of the municipality and liens of municipal
sewer, sanitary and water districts. From the date of recording, a
commercial PACE lien is a priority lien against a property, except
that the priority of such a commercial PACE lien over any lien, except
a lien for real property taxes of the Town or a lien of a municipal
sewer, sanitary or water district, that existed prior to the commercial
PACE lien is subject to the written consent of such existing lienholder.
F.
Mortgage lender notice and consent. Any financial institution holding
a lien, mortgage or security interest in or other collateral encumbrance
on the property for which a commercial PACE assessment is sought must
be provided written notice of the commercial property owner's
intention to participate in the commercial PACE program and must provide
written consent to the commercial property owner and Town that the
borrower may participate and enroll the collateral property in the
commercial PACE program. This written consent must be filed in the
Cumberland County Registry of Deeds and must include a written acknowledgement
and understanding by the financial institution holding the lien, mortgage
or security interest in or other collateral encumbrance on the property
as required by the Commercial PACE Act.
A.
A commercial PACE assessment and any interest, fees, penalties and
attorney's fees incurred in its collection must be collected
in the same manner as the real property taxes of the Town. A commercial
PACE assessment for which notice is properly recorded under this section
creates a lien on the property. The portion of the assessment that
has not yet become due is not eliminated by foreclosure, and the lien
may not be accelerated or extinguished until fully repaid.
(1)
If a commercial PACE assessment is delinquent or in default and the
borrower or property owner is delinquent in any tax debt due to the
Town, collection may occur only by the recording of liens and by foreclosure
under 36 M.R.S. §§ 942 and 943. Liens must be recorded
and released in the same manner as liens for real property taxes.
(2)
If only a commercial PACE assessment is delinquent but the borrower
or property owner is current on payment of all municipal taxes due
to the Town, then a commercial PACE lienholder shall accept an assignment
of the commercial PACE lien, as provided in the written agreement
between Town and the capital provider. The assignee shall have and
possess all the same powers and rights at law as the Town and its
tax collector with regards to the priority of the commercial PACE
lien, the accrual of interest and fees and the costs of collection.
The assignee shall have the same rights to enforce the commercial
PACE lien as any private party or lender holding a lien on real property,
including, but not limited to, the right of foreclosure consistent
with 14 M.R.S. §§ 6203-A and 6321 and any other action
in contract or lawsuit for the enforcement of the commercial PACE
lien.
B.
Judicial or nonjudicial sale or foreclosure. In the event of a judicial
or nonjudicial sale or foreclosure of a property subject to a commercial
PACE lien by a lienholder that is not a commercial PACE lienholder,
the commercial PACE lien must survive the foreclosure or sale to the
extent of any unpaid installment, interest, penalties or fees secured
by the lien that were not paid from the proceeds of the sale. All
parties with mortgages or liens on that property, including without
limitation commercial PACE lienholders, must receive on account of
such mortgages or liens sale proceeds in accordance with the priority
established in this chapter and by applicable law. A commercial PACE
assessment is not eliminated by foreclosure and cannot be accelerated.
Only the portion of a commercial PACE assessment that is in arrears
at the time of foreclosure takes precedence over other mortgages or
liens; the remainder transfers with the property at resale.
C.
Unless otherwise agreed upon by the capital provider, all payments
on a commercial PACE assessment that become due after the date of
transfer by judicial or nonjudicial sale or foreclosure must continue
to be secured by a lien on the property and are the responsibility
of the transferee.
D.
Release of lien. The Town will discharge a commercial PACE lien created
under the Commercial PACE Act and this article upon full payment of
the amount specified in the commercial PACE agreement. A discharge
under this subsection must be filed in the appropriate registry of
deeds and must include reference to the notice of commercial PACE
agreement previously recorded pursuant to the Commercial PACE Act
and this article.
E.
No Town responsibility for commercial PACE assessment payments. The
Town shall not be obligated to make any commercial PACE assessment
payment during any period in which the Town is deemed to be the owner
of the Qualified Property by virtue of the automatic foreclosure of
a tax lien mortgage, pursuant to 36 M.R.S. § 943, as amended,
provided that the Town includes such a provision in the commercial
PACE agreement for that Qualified Property.
A.
Notwithstanding any other provision of law to the contrary, officers
and officials of the Town, including without limitation, Tax Assessors
and Tax Collectors, are not personally liable to the Trust or to any
other person for claims, of whatever kind or nature, under or related
to a commercial PACE program, including without limitation, claims
for or related to uncollected commercial PACE assessments under this
article.
B.
Other than the fulfillment of its obligations specified in a commercial
PACE agreement, the Town has no liability to a commercial property
owner for or related to energy savings improvements financed under
a commercial PACE program.
This article is intended to comply with the Commercial PACE
Act and the administrative rules of the Trust issued in connection
with the Commercial PACE Act, as the same may be amended. If the Trust
or any state or federal agency adopts standards, promulgates rules,
or establishes model documents subsequent to the Town's adoption
of this article and those standards, rules or model documents substantially
conflict with this article, the Town shall take necessary steps to
conform this article and its commercial PACE program to those standards,
rules or model documents.
