[Adopted 11-17-2020 by Ord. No. 1904]
The City Council of the City of Papillion, Nebraska hereby finds
and determines as follows:
A.
Pursuant to Neb. Rev. Stat. §§ 13-3201 to 13-3211,
as amended, of the Property Assessed Clean Energy Act (the "Act"),
energy efficiency and the use of renewable energy are important for
preserving the health and economic well-being of Nebraska's citizens.
Using less energy decreases the cost of living and keeps the cost
of public power low by delaying the need for additional power plants.
To further these goals, it is necessary for the City to promote energy
efficiency improvements and renewable energy systems. Upfront costs
for energy efficiency improvements and renewable energy systems may
prohibit or deter many property owners from making improvements. It
is necessary for the City to implement an alternative financing method
through the creation of a Clean Energy Assessment District.
B.
Financing energy projects to further these goals is a valid public
purpose and can be accomplished through property-assessed clean energy
("PACE") financing, which is used to overcome the upfront costs for
energy efficiency improvements and renewable energy systems by leveraging
private capital and equity, not public debt.
C.
Pursuant to the Act and Neb. Rev. Stat. § 13-3204, the
City of Papillion is authorized to establish a Clean Energy Assessment
District so that owners of qualifying property can access PACE financing
for energy efficiency improvements or renewable energy improvements
to their properties located in such municipality. The City may enter
into agreements with other municipalities for the creation, administration
or creation and administration of Clean Energy Assessment Districts,
pursuant to § 13-3210 of the Act and pursuant to the Interlocal
Cooperation Act, Neb. Rev. Stat. § 13-801 et seq. The City
declares its intent that the provisions of this article shall be in
conformity with federal and state laws. The City enacts this article
pursuant to the Act, as amended.
This article shall be known and may be cited as "The City of
Papillion Property Assessed Clean Energy (PACE) Ordinance," and by
its codified chapter and article references. The definitions stated
in § 13-3203 of the Act are adopted for use in this article.
Except for the words and phrases specifically defined below or in
the Act, 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 following meanings:
The City of Papillion Clean Energy Assessment District, created
pursuant to this article, as authorized by Neb. Rev. Stat. §§ 13-3203
and 13-3204, which shall include all areas within the corporate boundaries
of the City of Papillion or the City's extraterritorial jurisdiction,
as such boundaries and jurisdiction may be amended from time to time
by annexation or other means.
The Director of the City of Papillion Planning Department
or a third-party administrator with whom the City contracts for the
provision of administrative services under this article.
Funds provided to the owner(s) of qualified property by a
third-party lender, pursuant to the Act and this article, for an energy
efficiency improvement.
A.
The City finds that the financing of energy projects is a valid public
purpose.
B.
A district is hereby created, pursuant to § 13-3204 of
the Act. The boundaries of the district shall be the City's corporate
boundaries plus its extraterritorial jurisdiction, as such boundaries
and jurisdiction may be amended from time to time by annexation or
other means.
C.
The District Administrator shall use a contract form for assessment
contracts between the City, the owner of the qualifying property,
and a third-party lender, substantially in the form or containing
terms as set forth in the attached "Assessment Contract" governing
the terms and conditions of financing and annual assessments that
is in accordance with the Act, including Neb. Rev. Stat. § 13-3205(1),
which provides for repayment of the costs financed through annual
assessments upon the qualifying property benefited by the energy project.[1] A current copy of the assessment contract shall be maintained
in the offices of the City Clerk and District Administrator.
[1]
Editor's Note: A sample assessment contract is included as an attachment to this chapter.
D.
The Mayor of the City is authorized to enter into assessment contracts
on behalf of the City, upon approval by the City Council.
E.
The District Administrator will use a financing application process
and eligibility requirements, which shall be more specifically defined
in a program manual created by the District Administrator, for financing
energy projects in accordance with the requirements of the Act and
accepted by the third-party lender. The application process and program
eligibility requirements shall be, at a minimum, as follows:
(1)
Submission of an application to the District Administrator, which
shall include, but not be limited to, the following information:
(a)
Applicant name and contact information, including property owner
and developer;
(b)
Project location and legal description;
(c)
Identification of contractor or supplier, including anticipated
PACE contractor and a copy of the approved bid for the energy efficiency
project;
(d)
Project description;
(e)
Total project cost;
(f)
Description of proposed improvements;
(g)
Description of energy efficiency project to be financed;
(h)
Amount of requested assessment;
(i)
Interest rate on the PACE assessment and any required fees;
(j)
Term of assessment;
(k)
Estimated savings;
(l)
Title report showing any mortgage or lienholders;
(m)
Lender consent;
(n)
Projected jobs created by PACE project;
(o)
Project environmental benefits;
(p)
Energy audit report;
(q)
Funding source;
(r)
All other such information as requested by the District Administrator
to verify that the project complies with all the requirements of the
Act.
(2)
The District Administrator may grant an applicant's request to waive
the estimated economic benefit requirement. If the District Administrator
denies the applicant's waiver request, the applicant may appeal the
denial by submitting a request in writing to the City Administrator.
The appeal shall be mailed by certified mail or hand delivered to
the City Administrator within 14 days after the denial. The City Administrator
shall review the matter on the record made by the District Administrator
and, after providing the applicant an informal opportunity to be heard,
the City Administrator shall make the final decision.
(3)
The District Administrator shall review the application to determine
whether the energy project meets the eligibility requirements of the
Act and this article. An energy project shall not be eligible for
PACE financing if the qualifying property is subject to any of the
following:
(a)
Delinquent ad valorem taxes;
(b)
Delinquent personal property taxes;
(c)
Delinquent special assessments;
(d)
Overdue or delinquent water or sewer charges;
(e)
Involuntary liens, including but not limited to construction
liens;
(f)
Notice of default pursuant to any mortgage or deed of trust
related to the qualifying property; or
(g)
Delinquent assessment payment for any other energy project financed
pursuant to the Act.
(4)
If the energy project is determined to be eligible under the terms
of the Act and as required in this article, the District Administrator
may review the application and recommend approval, request additional
information, or deny the application, in his/her sole discretion.
(5)
Upon approval of an application, the District Administrator is authorized
to proceed with an assessment contract, as allowed for and required
herein and subject to the approval of the City Council.
F.
Pursuant to Neb. Rev. Stat. § 13-3205(7), annual assessments
agreed to under an assessment contract shall be levied against the
qualifying property and collected in accordance with the Act, or shall
be collected by a third-party lender.
G.
The City shall establish procedures to determine the following in
the future:
(1)
The Finance Director may establish, and the City Council may appropriate
moneys to, an adequate debt service reserve fund pursuant to § 13-3209
of the Act.
(2)
The Finance Director may establish, and the City Council may appropriate
moneys to, an adequate loss reserve fund pursuant to § 13-3208
of the Act, if this article is amended to include single-family residential
property as qualifying property.
(3)
The City Council shall determine the appropriate amount of application,
administration, and other program fees to be paid by applicants and
property owners under this article, and shall by resolution adopt
such fees as part of the City's Master Fee Schedule.
H.
The term of the annual assessments shall not exceed the weighted
average useful life of the energy project paid for by the annual assessments.
I.
Any energy efficiency improvement that is not permanently affixed
to the qualifying property upon which an annual assessment is imposed
to repay the cost of such energy efficiency improvement must be conveyed
with the qualifying property if a transfer of ownership of the qualifying
property occurs during the term of the annual assessment.
J.
Prior to the effective date of any contract that binds the purchaser
to purchase qualifying property upon which an annual assessment is
imposed, the owner shall provide notice to the purchaser that the
purchaser assumes responsibility for payment of the annual assessment
as provided in § 13-3205(3)(d) of the Act, and that the
obligations set forth in the assessment contract, including the obligation
to pay annual assessments, are a covenant that shall run with the
land and shall be obligations upon future owners of the qualifying
property.
K.
The City and District Administrator will provide for marketing and
participant education regarding providing PACE financing.
L.
The City or a designee of the City, such as the District Administrator
or a third-party lender, shall obtain verification that the renewable
energy system or energy efficiency improvement was properly installed
and is operating as intended.
M.
Until such requirement and ongoing cost is no longer required under
the Act, for an energy project financed with more than $250,000 in
annual assessments, the City or its designee or the District Administrator
shall conduct ongoing measurements that establish the savings realized
by the record owner of the qualifying property from the energy project.
A.
The district shall be governed by the City Council, pursuant to § 13-3204(1)
of the Act.
B.
The City may contract with a third party to serve as District Administrator,
subject to compliance with the Act, the provisions of this article,
and approval of the contract by resolution of the City Council. The
third-party administrator must ensure that there is no financial requirement,
liability, or exposure to the City under this article. The City Planning
Director shall serve as the District Administrator, unless and until
a third party is contracted to do so.
C.
The City may also engage the services of a state or local financing
agency for the purposes of providing conduit bond financing under
this article, subject to the limitations stated in the Act.
D.
Upon contracting with a third-party District Administrator, that
third-party District Administrator may, on behalf of the City, accept
applications for financing energy efficient improvements within the
district boundaries, facilitate the financing application process,
and review eligibility requirements for financing energy projects
in accordance with the requirements of the Act and as accepted by
the third-party lender.
E.
The boundaries of the district shall be expanded automatically upon
annexation or other means of expanding the City's corporate limits
and extraterritorial jurisdiction. The District may be expanded beyond
such limits and jurisdiction upon agreement with another political
subdivision pursuant to the Interlocal Cooperation Act, in order to
create a program of greater size and scale, to attract qualified third-party
administrators, or to promote energy efficiency across multiple political
subdivisions, as authorized under the Act.
Notwithstanding any other provision of law to the contrary,
employees, officials, and agents of the City, the district, the County
in which the City is located, and the District Administrator shall
not be personally liable to any person or entity for any claims, liabilities,
costs, or expenses, of whatever kind or nature, under, arising out
of, or related to the City's participation in the PACE program or
PACE funding under this article, including, without limitation, claims
for or related to uncollected PACE assessments. Not in limitation
of the foregoing, the said entities and persons shall have no liability
to a property owner or lender arising out of or related to energy
savings improvements or funding under a PACE program, other than to
remit PACE assessments received in accordance with the Act or notify
the County of a delinquency in payment pursuant to applicable law.
The provisions of this article are severable, and if any clause,
sentence, subsection, section, article, chapter or part thereof shall
be adjudged by any court of competent jurisdiction to be illegal,
invalid or unconstitutional, such judgment or decision shall not affect,
impair or invalidate the remainder thereof but shall be confined in
its operation and application to the clause, sentence, subsection,
section, article, chapter or part thereof rendered illegal, invalid
or unconstitutional. It is hereby declared to be the intent of the
City Council that this article would have been adopted if such illegal,
invalid or unconstitutional clause, sentence, subsection, section,
article, chapter or part thereof had not been included therein.
