[HISTORY: Adopted by the Albany County Legislature as indicated
in article histories. Amendments noted where applicable.]
[Adopted 6-8-2016 by L.L.
No. 5-2016; amended in its entirety 6-11-2018 by L.L. No. 2-2018]
A.
It is the policy of both the County of Albany and the State of New
York to achieve energy efficiency and renewable energy goals, reduce
greenhouse gas emissions, mitigate the effect of global climate change
and advance a clean energy economy. The County of Albany finds that
it can fulfill this policy by providing property-assessed clean energy
financing to property owners for the installation of renewable energy
systems and energy efficiency measures. This article establishes a
program that will allow the Energy Improvement Corporation ("EIC"),
a local development corporation, acting on behalf of the County of
Albany pursuant to the municipal agreement to be entered into between
the County of Albany and EIC pursuant to Article 5-G of the New York
General Municipal Law (the "municipal agreement"), 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.
B.
The County of Albany is authorized to implement this Energize NY
Benefit Financing Program pursuant to the Municipal Home Rule Law
and Article 5-L of the New York General Municipal Law.
C.
This article shall be known and may be cited as the "Energize NY
Benefit Financing Program Law of the County of Albany."
For purposes of this article, 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,
as defined by Subdivision 2 of § 1851 of the Public Authorities
Law, or its successor.
The Energy Improvement Corporation, a local development corporation,
duly organized under Not-For-Profit Corporation Law § 1411,
authorized hereby on behalf of the County of Albany to implement the
Energize NY Benefit Financing Program by providing funds to qualified
property owners (as defined in this article) and providing for repayment
of such funds from monies collected by the County of Albany tax collecting
officer as a charge to be levied on the real property and collected
in the same manner and same form as County of Albany taxes.
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,
weatherstripping, 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.
An owner of residential or commercial real property located
within the boundaries of the County of Albany that is determined to
be eligible to participate in the Energize NY Benefit Financing Program
under the procedures for eligibility set forth under this article.
An energy-generating system for the generation of electric
or thermal energy, to be used primarily at such property; except when
the qualified property owner is a commercial entity, in which case
the system may be used for other properties in addition to the subject
property, by means of solar thermal, solar photovoltaic, wind, geothermal,
anaerobic digester gas-to-electricity systems, fuel cell technologies
or other renewable energy technology approved by the Authority, not
including the combustion or pyrolysis of solid waste.
A written study conducted by a contractor certified by the
Authority, or certified by a certifying entity approved by the Authority,
for the purpose of determining the feasibility of installing a renewable
energy system.
A.
An Energize NY Benefit Financing Program is hereby established by
the County of Albany, whereby EIC, acting on its behalf pursuant to
the municipal agreement, may provide funds to qualified property owners
in accordance with the procedures set forth under this article, to
finance the acquisition, construction and installation of renewable
energy systems and energy efficiency improvements and the verification
of the installation of such systems and improvements.
B.
For funds provided to a qualified property owner which is a commercial
entity, not-for-profit organization or entity other than an individual,
EIC shall have the authority to impose requirements on the maximum
amount of funds to be provided, which may consider factors including
but not limited to the property value, projected savings, project
cost and existing indebtedness secured by such property.
C.
For financing made to a qualified property owner who is an individual,
the funds provided shall not exceed the lesser of:
(1)
10%
of the appraised value of the real property where the renewable energy
systems and/or energy efficiency improvements will be located; or
(2)
The
actual cost of installing the renewable energy systems and/or energy
efficiency improvements, including the costs of necessary equipment,
materials and labor and the cost of verification of such systems and
improvements.
A.
Any property owner in the County of Albany 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 County of Albany
offices.
B.
Every application submitted by a property owner shall be reviewed by EIC acting on behalf of the County of Albany, which shall make a positive or negative determination on such application based upon the criteria for making a financing enumerated in § 142-5 of this article. EIC may also request further information from the property owner where necessary to aid in its determination.
C.
If a positive determination on an application is made by EIC acting on behalf of the County of Albany, the property owner shall be deemed a qualified property owner and shall be eligible to participate in the Energize NY Benefit Financing Program in accordance with the procedure set forth under § 142-6 of this article; provided that in no case shall a property owner that has received funds from another municipal corporation for the acquisition, construction and installation of energy efficiency improvements and/or renewable energy systems be deemed a qualified property owner.
Upon the submission of an application, EIC, acting on behalf
of the County of Albany, shall make a positive or negative determination
on such application based upon the following criteria for the making
of a financing:
A.
The proposed energy efficiency improvements and/or renewable energy
systems are determined to be cost-effective based on guidelines issued
by the Authority;
B.
The property owner may not be in bankruptcy and the property may
not constitute property subject to any pending bankruptcy proceeding;
C.
The amount financed under the Energize NY Benefit Financing 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;
D.
Sufficient funds are available from EIC to provide financing to the
property owner;
E.
The property owner is current in payments on any existing mortgage;
F.
The property owner is current in payments on any existing real property
taxes and has been current on real property taxes for the previous
three years; and
G.
Such additional criteria, not inconsistent with the criteria set
forth above, as the County of Albany, or EIC acting on its behalf,
may set from time to time.
A.
A qualified property owner may participate in the Energize NY Benefit
Financing Program through the execution of an Energize NY finance
agreement made by and between the qualified property owner and EIC,
acting on the behalf of the County of Albany (the "Energize NY finance
agreement").
B.
Upon execution of the Energize NY finance agreement, the qualified property owner shall be eligible to receive funds from EIC acting on behalf of the County of Albany, for the acquisition, construction and installation of qualifying renewable energy systems and energy efficiency improvements, provided the requirements of § 142-7 of this article have been met.
A.
No funds shall be made available for energy efficiency improvements unless determined to be appropriate through an energy audit as defined in § 142-2.
B.
No funds shall be made available for a renewable energy system unless determined to be feasible through a renewable energy system feasibility study as defined in § 142-2.
C.
The cost of such energy audit and/or renewable energy system feasibility
study shall be borne solely by the property owner but may be included
in the financed amount if the work is approved.
The Energize NY finance agreement between the qualified property
owner and EIC, acting on behalf of the County of Albany, shall set
forth the terms and conditions of repayment in accordance with the
following:
A.
The principal amount of the funds paid to the qualified property
owner hereunder, together with the interest thereon, shall be paid
by the property owner as a charge on their County of Albany tax bill
and shall be levied and collected at the same time and in the same
manner as the County of Albany property taxes, provided that such
charge shall be separately listed on the tax bill. The County of Albany
shall make payment to EIC or its designee in the amount of all such
separately listed charges within 30 days of the date the payment is
due to be made to the County of Albany.
B.
The term of such repayment shall be determined at the time the Energize
NY finance agreement is executed by the property owner and EIC, provided
that in no case shall the term exceed the weighted average of the
useful life of the systems and improvements as determined by EIC acting
on behalf of the County of Albany.
C.
The rate of interest for the charge shall be fixed by EIC acting
on behalf of the County of Albany at the time the Energize NY finance
agreement is executed by the property owner and EIC.
D.
The charge shall constitute a lien upon the real property benefited
by the Energize NY Benefit Financing Program as set forth in Article
5-L of the General Municipal Law and shall run with the land. A transferee
of title to the benefited real property shall be required to pay any
future installments, including interest thereon.
A.
EIC shall be responsible for verifying and reporting to the County
of Albany on the installation and performance of renewable energy
systems and energy efficiency improvements financed by such program.
B.
The County of Albany shall verify and report on the installation
and performance of renewable energy systems and energy efficiency
improvements financed by the Energize NY Benefit Financing Program
in such form and manner as the Authority may establish.
[Adopted 11-12-2019 by L.L. No. 6-2019]
A.
It is
the policy of both the Municipality 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 Municipality 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 Municipality pursuant to the
municipal agreement (the "municipal agreement"), to be entered into
between the Municipality 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 article
and accomplishing 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.
The Municipality
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, Municipal Home Rule Law
§ 10, the Enabling Act and this article.
C.
This article,
which is adopted pursuant to Municipal Home Rule Law § 10
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
MUNICIPALITY
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 § 142-17B.
Shall have the meaning assigned in § 142-17B.
The New York State Energy Research and Development Authority.
Shall have the meaning assigned in § 142-12A.
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 State Not-For-Profit Corporation Law § 1411,
authorized hereby on behalf of the Municipality 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
Municipality 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.
The finance agreement described in § 142-15A 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 Municipality.
The County of Albany, a Municipality of the State constituting
a tax district as defined in § 1102 of the RPTL of the State.
A lien on Qualified Property which secures the obligation
to pay real property taxes, municipal charges or governmentally imposed
assessments with respect to 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 with respect to 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 Municipality 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 § 142-17C.
The State of New York.
A.
An Energize
NY Open C-PACE Financing Program is hereby established by the Municipality,
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 Municipality, 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 Municipality.
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 Municipality 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 Municipality's offices.
B.
Every application submitted by a property owner shall be reviewed by EIC, acting on behalf of the Municipality, which shall make a positive or negative determination on such application based upon the criteria enumerated in the Enabling Act and § 142-14 of this article. 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 Municipality, 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 Municipality, 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 Municipality,
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 article 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 Municipality.
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 Municipality, 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 Municipality.
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 Municipality,
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 Municipality. 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 Municipality, in the
land records for properties in 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 Municipality. The Benefit Assessment
Lien shall not be foreclosed upon by or otherwise enforced by the
Municipality.
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
Municipality, on the Benefited Property in the same manner as 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 Municipality. 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 RPTL § 902 or by any other State
or local law. No portion of a Secured Amount shall be recovered by the
Municipality, 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 Municipality, 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
with respect to an Annual Installment Lien shall be remitted to EIC,
on behalf of the Municipality, or the Financing Party, as may be provided
in the Finance Agreement.
E.
EIC shall
act as the Municipality'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 with respect to 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 Municipality, 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 Municipality, 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 Municipality 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 Municipality, 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.
Local Law No. 5-2016, as amended by Local Law No. 2-2018, shall
remain in full force and effect with respect to the financing already
made available to property owners pursuant to such local law, as amended,
but as of the effective date of this article no new financing shall
be provided pursuant to Local Law No. 5-2016, as amended by Local
Law No. 2-2018, and all further financing provided pursuant to the
Enabling Act shall be in accordance with and governed by this article.
