[Adopted 12-5-2023 by Ord. No. 23-174]
A. 
Purpose. By and through this article, the Town of Gorham ("Town") 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-saving 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. 
Enabling legislation. The Town enacts this article pursuant to Public Law 2021, Chapter 142 of the 130th Maine State Legislature, "An Act to Allow for the Establishment of Commercial Property Assessed Clean Energy Program," also known as "the Commercial Property Assessed Clean Energy Act" or "the Commercial PACE Act" (codified at 35-A M.R.S.A. § 10201 et seq.).
A. 
Title. This article shall be known and may be cited as the "Town of Gorham's Commercial Property Assessed Clean Energy ("C-PACE") Ordinance" ("this article").
B. 
Definitions. 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:
COMMERCIAL PACE AGREEMENT
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 the Town Council.
COMMERCIAL PACE ASSESSMENT
An assessment made against qualifying property to finance an energy-saving improvement.
COMMERCIAL PACE DISTRICT
The area within which the Town establishes a Commercial PACE Program hereunder, which is all that area within the Town boundaries.
COMMERCIAL PACE LIEN
A lien, secured against a qualifying property, that is created by a commercial PACE assessment.
COMMERCIAL PACE LOAN
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-saving improvements.
COMMERCIAL PACE or C-PACE
Commercial Property Assessed Clean Energy.
COMMERCIAL PACE PROGRAM
A program established under this article pursuant to the Commercial PACE Act under which commercial property owners can finance energy-saving improvements on qualifying property.
ENERGY-SAVING IMPROVEMENT
An improvement or series of improvements to qualifying property that are new and permanently affixed to qualifying property and that:
(1) 
Will result in increased energy efficiency or substantially reduced energy use and:
(a) 
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
(b) 
Involve weatherization of commercial or industrial property in a manner approved by the Trust; or
(2) 
Involve a renewable energy installation, an energy storage system as defined in 35-A M.R.S.A. § 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.A. § 10204(1)(B).
QUALIFYING PROPERTY
Real commercial property in the Town that:
(1) 
Does not have a residential mortgage;
(2) 
Is not owned by a residential customer or small commercial customer as defined in 35-A M.R.S.A. § 3106(1)(C) and (D), respectively;
(3) 
Consists of five or more rental units if the property is a commercial building designed for residential use;
(4) 
Is not owned by a federal, state or municipal government or public school; and
(5) 
Is located in a municipality that participates in a Commercial PACE Program.
REGISTERED CAPITAL PROVIDER or CAPITAL PROVIDER
An approved lender proving financing for the energy savings improvements through a C-PACE Program and registered with Efficiency Maine Trust.
RENEWABLE ENERGY INSTALLATION
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.
TOWN
The Town of Gorham.
TRUST
The Efficiency Maine Trust established in 35-A M.R.S.A. § 10103 and/or its agents, if any.
A. 
Program established. 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-saving improvements to their qualifying property, with such financing to be repaid through a commercial PACE assessment and secured by a commercial PACE lien. The Town may:
(1) 
Administer the functions of the Commercial PACE Program, including, but not limited to, commercial PACE assessments, or designate 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 Section 10205, Subsection 5, of the Commercial PACE Act.
B. 
Amendment 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. 
Financing; private lenders; terms. 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-saving 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-saving 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. 
Program requirements and administration.
(1) 
Agreement required. All commercial property owners seeking financing for energy-saving 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 Registry of Deeds, which filing will create a lien until the amounts due under the agreement are paid in full.
(2) 
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.
(3) 
Collection of assessments.
(a) 
A commercial property owner participating in the Commercial PACE Program will repay the financing of energy-saving 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 agents 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.
(b) 
If the Trust or a third-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.
(4) 
Notice; filing. A notice of a commercial PACE agreement must be filed in the appropriate 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.
(5) 
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.
(6) 
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 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.
B. 
Collection, default; foreclosure.
(1) 
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.
(a) 
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.A. §§ 942 and 943. Liens must be recorded and released in the same manner as liens for real property taxes.
(b) 
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.A. §§ 6203-A and 6321 and any other action in contract or lawsuit for the enforcement of the commercial PACE lien.
(2) 
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 the Commercial PACE Act 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.
(3) 
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.
(4) 
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.
(5) 
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.A. § 943, as amended, provided that the Town includes such a provision in the commercial PACE agreement for that qualified property.
C. 
Liability of municipal officials; liability of Town.
(1) 
Notwithstanding any other provision of law to the contrary, Town officers and Town 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 Commercial PACE Program, including, without limitation, claims for or related to uncollected commercial PACE assessments under this article.
(2) 
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-saving 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.