[HISTORY: Adopted by the Town Board of the Town of New Castle 6-11-2019 by L.L. No. 7-2019.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also repealed former Ch.
63, Energize NY Benefit Financing Program, adopted 6-30-2015 by L.L.
No. 6-2015, as amended.
A.
It is the policy of both the Town of New Castle and the State of
New York 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 Town of New Castle
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 Town of New Castle,
pursuant to a municipal agreement (the "municipal agreement") to be
entered into between the Town of New Castle 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").
B.
The Town of New Castle 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.
C.
This local law, 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.
Capitalized terms used but not defined herein have the meanings assigned
in the Enabling Act.
B.
ANNUAL INSTALLMENT AMOUNT
ANNUAL INSTALLMENT LIEN
AUTHORITY
BENEFIT ASSESSMENT LIEN
BENEFITED PROPERTY
BENEFITED PROPERTY OWNER
EIC
ELIGIBLE COSTS
ENABLING ACT
FINANCE AGREEMENT
FINANCING CHARGES
FINANCING PARTIES
MUNICIPAL LIEN
NONMUNICIPAL LIEN
PROGRAM
QUALIFIED PROJECT
QUALIFIED PROPERTY
QUALIFIED PROPERTY OWNER
RPTL
SECURED AMOUNT
STATE
For the purposes of this local law, and unless otherwise expressly
stated or unless the context requires, the following terms shall have
the meanings indicated:
The New York State Energy Research and Development Authority.
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 Energy Improvement Corporation, a local development corporation,
duly organized under § 1411 of the Not-For-Profit Corporation
Law of the state, authorized hereby on behalf of the Town of New Castle
to implement the program by providing funds to qualified property
owners and providing for repayment of such funds from monies collected
by or on behalf of the Town of New Castle 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.
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 municipality.
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 in whole or in part 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 Town of New Castle 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.
The owner 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.
The State of New York.
A.
An Energize NY Open C-PACE Financing Program is hereby established
by the Town of New Castle, 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 Town of New Castle, 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 municipality. Such recording shall be exempt
from any charge, mortgage recording tax or other fee in the same manner
as if recorded by the Town of New Castle.
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.
A.
Any property owner in the Town of New Castle 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 Town of New Castle
offices.
B.
Every application submitted by a property owner shall be reviewed by EIC, acting on behalf of the Town of New Castle, which shall make a positive or negative determination on such application based upon the criteria enumerated in the Enabling Act and § 63-5 of this local law. EIC may also request further information from the property owner where necessary to aid in its determination.
Upon the submission of an application, EIC, acting on behalf
of the Town of New Castle, 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
on the qualified property; and
F.
Such additional criteria, not inconsistent with the criteria set
forth above, as the state, the Town of New Castle, or EIC acting on
its behalf, or other financing parties may set from time to time.
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
Town of New Castle, 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.
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 Town of New Castle. 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
the EIC, on behalf of the Town of New Castle, 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 Town of New Castle.
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 Town
of New Castle, as provided in the finance agreement.
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 Town of New Castle. 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 Town of New Castle, in the land records for properties in the
Town of New Castle. Such recording shall be exempt from any charge,
mortgage recording tax or other fee in the same manner as if recorded
by the Town of New Castle. The benefit assessment lien shall not be
foreclosed upon by or otherwise enforced by the Town of New Castle.
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 Town of New Castle, on the benefited property in the same manner
as other levies for municipal charges, 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 Town of New Castle. 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 Town of New Castle, 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 nonmunicipal 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 Town of New Castle, 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 Town of New Castle, or the financing
party, as may be provided in the finance agreement.
E.
EIC shall act as the Town of New Castle'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 Town of New Castle, 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 Town
of New Castle, 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 Town of New Castle 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.
EIC, on behalf of the Town of New Castle, 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.
