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HomeMy WebLinkAbout2023-07 Allowing Commercial Property Assessed Clean Energy Programs to Operate within the City (C-PACE) RESOLUTION NO. 2023-07 A RESOLUTION OF THE CITY OF OCOEE, FLORIDA, ALLOWING COMMERCIAL PROPERTY ASSESSED CLEAN ENERGY PROGRAMS(S) TO OPERATE WITHIN THE CITY OF OCOEE, FLORIDA, (THE "CITY"); PERMITTING PROPERTY ASSESSED COMMERCIAL CLEAN ENERGY ("C-PACE") PROGRAMS WITHIN THE CORPORATE LIMITS OF THE CITY; APPROVING AGREEMENTS WITH THE FLORIDA RESILIENCY ENERGY DISTRICT,FLORIDA GREEN FINANCE AUTHORITY,AND THE GREEN CORRIDOR PROPERTY ASSESSMENT CLEAN ENERGY DISTRICT; UTILIZING VOLUNTARY NON-AD VALOREM ASSESSMENTS TO FINANCE QUALIFYING COMMERCIAL DEVELOPMENT IMPROVEMENTS; AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE SAID AGREEMENTS; AND PROVIDING FOR IMPLEMENTING ADMINISTRATIVE ACTIONS, SCRIVENER'S ERRORS, CONFLICTS, SEVERABILITY, AND EFFECTIVE DATE. WHEREAS, Section 163.08, Florida Statutes (the "PACE Act"), authorizes counties, municipalities and certain separate local government ("Local Government") entities to establish and administer financing programs for energy conservation and efficiency, renewable energy and wind resistance improvements("Qualifying Improvements") that can reduce property repair and insurance costs,the burdens of fossil fuel energy production, and the burdens of high wind storms and hurricanes; and WHEREAS,the PACE Act provides for said funding to be repaid by the property owners through non-ad valorem assessments levied upon their properties pursuant to financing agreements entered into between commercial property owners and the local governments establishing and administering the C-PACE programs; and WHEREAS, several separate legal entities have been created in the State of Florida pursuant to the PACE Act and Section 163.01, Florida Statutes to provide PACE qualifying improvement programs to property owners financed by levying non-ad valorem assessments on participating properties; and WHEREAS,the Florida Green Finance Authority, the Green Corridor PACE District,and the Florida Resiliency Energy District (individually the "Agency", collectively the "Agencies") are currently three (3) separate legal entities and units of local government within the State of Florida which were established by separate interlocal agreements for the express purpose of providing a scalable platform to facilitate the financing of Qualifying Improvements throughout Florida; and WHEREAS, pursuant to law, local governments may enter into agreements with other local governments for the purpose of providing and financing Qualifying Improvements; and WHEREAS, existing financing options may be insufficient for commercial property owners to access cost-effective financing for energy-saving or wind-resistance property improvements due to requirements associated with traditional debt or equity financing options; and WHEREAS, the Agencies have created a turn-key solution for the financing, levy and collection process to implement C-PACE Programs without cost to or assumption of liability by, or demand upon the credit of the CITY; and WHEREAS, the CITY is presently without adequate, currently available and recurring funds to establish a program similar to the Agencies programs and recognizes that initiation of its own program requires a commitment of significant time, staffing and monetary resources derived from all taxpayers; however as an alternative or supplement to any other program or approach chosen by the CITY, the CITY can concurrently authorize and approve a non-exclusive arrangement with each Agency to make funding for C-PACE Qualified Improvements immediately available to support property owners and the local economy; and 2 WHEREAS, the CITY Commission deems it to be in the best interest of the citizens and businesses of the CITY to authorize the City Manager or designee to execute agreements with the Agencies in an effort to provide an alternative, supplemental and nonexclusive means to achieve, inter alia,immediate and careful local economic development,commerce and job creation,as well compelling state interest and public purposes described in the Supplemental Act. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. LEGISLATIVE FINDINGS AND INTENT. The CITY hereby adopts and incorporates into this Resolution the CITY's staff report as attached hereto and incorporated herein in Exhibit A. The forgoing recitals are incorporated in this Resolution as if fully set forth herein and are approved and adopted. The CITY has complied with all requirements and procedures of Florida law in processing and noticing this Resolution. SECTION 2. C-PACE DEFINITIONS AND PROGRAM STANDARDS. This Resolution provides minimum standards and limitations for the operation of non-exclusive C- PACE programs within the City of Ocoee jurisdictional boundary. (a). Definition of an Eligible Participant. Must be the legal owner(s)of the commercial property subject to the C-PACE Assessment and must have the authority to contract for and approve Qualifying Improvements. All property taxes and any other assessments must have been paid and have not been delinquent in the preceding three (3) years. Eligible Participant must be current on any mortgage payment. There should not be any liens on the Commercial Building (b) Definition of a Commercial Building. Commercial Buildings shall mean nonresidential properties including the nonresidential portion(s) of agricultural properties and planned developments, as well as, multifamily apartment buildings with five or more leased 3 apartment units owned by an entity legally authorized to enter into a contract. The Commercial Building must be located within the jurisdiction of the City of Ocoee. (b). Definition of Qualifying Improvements. C-PACE Local Governments shall only finance Qualifying Improvements and their ancillary improvements required as part of the installation. Qualifying Improvements must comply with the standards contained in the PACE Act and this Section including, but not limited to, the following: (1) Qualifying Improvements must be properly permitted, as applicable, and must comply with all state and local codes; (2) Qualifying Improvements must be, as applicable, (i) at least as energy efficient as the rating of the existing product; (ii) ENERGY STAR compliant or meet current national efficiency standards; and(iii) sized appropriately; (3) Qualifying Improvements shall be affixed to a building or facility that is part of the commercial property and shall constitute an improvement to the building or facility or a fixture attached to the building or facility. (c) Contractors. (1) Any work requiring a license under any applicable law to make a Qualifying Improvement under a C-PACE Program shall be performed by a contractor properly licensed, certified, or registered pursuant to state or local law. (2) Contractors performing work under a C-PACE program shall comply with each of the following conditions: (i) be licensed and insured pursuant to the applicable statutory requirements; (ii) agree to comply with all applicable provisions of this section including, but not limited to,the C-PACE Program Standards;and(iii) act in good faith to timely resolve complaints from eligible participants. 4 (3) C-PACE Programs shall have and shall strictly enforce anti-kickback policies and procedures that prohibit direct financial or other monetary incentives between C- PACE local Governments, C-PACE Administrators, and contractors in exchange for being awarded a project or work under a C-PACE Program. This paragraph does not prohibit payment for a contractor's installation of Qualifying Improvements. (d) Materials and Improvements. Materials and Qualifying Improvement products must be compliant with the Florida Building Code, local codes, and use efficiency standards established by the U.S. Department of Energy, the U.S. Environmental Protection Agency, State of Florida agencies, or independent third-party ratings or certification entities, as applicable. Equipment must be sized appropriately based on nationally accepted codes and standards. (e) Data Security and Consumer Privacy. C-PACE Local Governments, C-PACE Administrators, and any other entity collecting or maintaining C-PACE Program data or information shall take security measures to protect the security and confidentiality of commercial property owner records and information to the extent permitted or mandated by law and, in particular, shall provide a commercial property owner's information shared with third parties, except where expressly permitted by state and federal law. (f) C-PACE Financing Agreement. After complying with all other mandated steps provided by Section 163.08(13), Florida Statutes, the C-PACE Local Government shall enter into a written C-PACE Financing Agreement with each Eligible Participant that is voluntarily participating in the C-PACE Program. C-PACE Financing Agreements must include, at a minimum, the following information: (1) The full legal description of the commercial property subject to the C-Pace Assessment; 5 (2) The Total amount of funding secured by a C-PACE Assessment to be provided to the Eligible Participant for the construction or installation of Qualifying Improvement(s); (3) A provision stating that the Eligible Participant is expressively and. voluntarily consenting to accept the non-ad valorem assessment collection process as set forth in Section 197.3632, Florida Statutes; (4) The length of time for the Eligible Participant to pay out the C-PACE Assessment, which shall not exceed the expected useful life of the costliest Qualifying Improvement(s) funded by the C-PACE Program, or thirty (30) days, whichever is less; (5) A statement must be provided stating the Eligible Participant is responsible for verifying that the Qualifying Improvements are completed as reflected in the approved application documents. The Eligible Participant shall also consent to providing access to the C- PACE Local Government or its agent to the commercial property to verify that the Qualifying Improvements have been completed as proposed in the application; (6) A provision stating that at or before the execution of a contract for the sale and purchase of any commercial property for which a C-PACE Assessment has been levied and has an unpaid balance due, the seller will disclose the lien to the prospective purchaser in accordance with Section 163.08(14), Florida Statutes; (7) The risks associated with participating in the C-PACE Program. The risks shall be clearly disclosed in plain language in the written C-PACE Financing Agreement and shall include, but are not limited to, the risks related to the Eligible Participant not being able to refinance or sell the commercial property unless the C-PACE Assessment is first paid off in full, 6 and the risks associated with the issuance of a tax certificate and loss of the commercial property pursuant to Chapter 197, Florida Statutes; (8) A description of the Qualifying Improvements financed, their costs, and estimated completion date; (9) Notice that the C-PACE Assessment shall be recorded in the public records for the commercial property; (10) Clear disclosure of the interest rate to be charged, points and any and all fees or penalties that may be separately charged to the Eligible Participant including, but not limited to, potential late fees, early termination fees, and any other fees related to participation in the C-PACE Program. The subsequent charging or collecting of any additional fees that were not specifically disclosed in the written C-PACE Financing Agreement with the Eligible Participant is prohibited. (g) Recording. The C-PACE Local Government shall record, or cause to be recorded, the following notice in the public records of the commercial property within (5) days after execution of the C-PACE Financing Agreement, along with appropriate C-PACE Local Government contact information for commercial property owner inquires: QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY, RENEWABLE ENERGY, OR WIND RESISTANCE. This property is located within the jurisdiction of a C-PACE Local Government that has placed an assessment of the property relating to energy efficiency, renewable energy, or wind resistance and is not based on the values of the property . You are encouraged to contact the county property appraiser's office to learn more about this and other assessments that may be provided by law. (h) Lender Notification and Consent. 7 (1) Notification. At least thirty (30) days before entering into a C-PACE Financing Agreement, the C-PACE Local Government shall verify that the Eligible Participant has provided written notice of the Eligible Participant's intent to enter into a C-PACE Financing Agreement to the holders or loan services of any existing mortgages encumbered or otherwise secured by the commercial property. With an Eligible Participant's approval, C-PACE Local Governments may provide this notification on behalf of an Eligible Participant. The notice must comply with and, at a minimum of such notice, satisfy the requirements of the PACE Act including, but not limited to, the maximum principal amount to be financed and the maximum annual assessment necessary to repay that amount. A verified copy or other proof of such notice must be provided to and maintained by the C-PACE Local Government. (2) Consent. Prior to entering into a C-PACE Financing Agreement with an Eligible Participant, C-PACE Local Government shall verify that holders or loan servicers of any mortgage or lien encumbered or otherwise secured by the Commercial Property have signed written consents consenting to the C-PACE Assessment considered for the commercial property pursuant to the C-PACE Financing Agreement. A verified copy or other proof of such consent must be provided to and maintained by the C-PACE Local Government. (i) Marketing and Communications. (1) Marketing practices for providers of C-PACE Programs,including C-PACE Local Governments and C-PACE Administrators, that are unfair, deceptive, abusive, or misleading, or that violate applicable laws or regulations or that are inappropriate, incomplete, or inconsistent with a C-PACE Local Government's purpose, are prohibited. 8 (2) Providers of C-PACE Programs, including C-PACE Local Governments, C-PACE Administrators, and contractors, may not use facsimiles or logos of the CITY, Orange County Tax Collector, or the Orange County Property Appraiser. (3) Marketing materials are prohibited from making the following claims about a C-PACE Program: i. That C-PACE is a free program; ii. That C-PACE is a CITY Program; iii. That C-PACE does not involve a financial obligation by the Eligible Participant; or iv. The C-PACE is a form of public assistance. (j) Protected Classes, C-PACE Local Governments, C-PACE Administrators, and contractors are prohibited from discriminating against individuals on the basis of race, color, ancestry, disability,national origin,religion,age,familial status,marital status,sex,gender,sexual orientation, gender identity and expression, or generic infoiiiiation. (k) Metrics Reporting. C-PACE Local Governments shall track C-PACE Program metrics and report those metrics to the CITY with the first report due no later than one (1) year after the execution of the C-PACE Interlocal Agreement. Following the submission of the first metrics report, each subsequent metrics report must be submitted electronically to the CITY on a quarterly basis. Metrics reports must include, at a minimum,the following information: (1) Dates of the reporting period; (2) Name of the C-PACE Administrator; (3) Number of signed term sheets; (4) Number of executed C-PACE Agreements; 9 (5) Number of projects completed; (6) Estimated number of jobs created; (7) Project closing date and completion date; (8) Project building type (e.g. retail, office, multifamily, industrial); (9) Project construction type (e.g. New, retrofit, rehabilitation); (10) Amount financed for each project; (11) Interest rates charged and the repayment teuns in months for each project; (12) Types of improvements financed; (13) Data estimating the project's impact on energy and resiliency; (14) Whether an energy audit was completed for each project; (15) Number of formal complaints received; (16) Number of defaults of C-PACE payments; and, (17) Number of tax sale certificates and tax deeds issued, sold, and granted. (1) Amendments. The City reserves the right to amend these standards. (m) Reporting. The C-PACE Local Governments shall respond to the City's request for information, as permissible by law. SECTION 3. PERMITTING OF C-PACE PROGRAMS. The CITY hereby authorizes the availability of PACE programs for commercial properties within the limits of the CITY. 10 SECTION 4. APPROVAL OF C-PACE DISTRICTS; AUTHORIZATION TO EXECUTE,ETC. (a). The CITY approves the following PACE Districts (local governments) to operate within the jurisdictional limits of the City of Ocoee in order to offer C-PACE Programs: (1). Florida Green Finance Authority (2). Florida Resiliency Energy District (3). Green Corridor PACE District (b). The CITY hereby authorizes the City Manager or designee to execute the agreements with the aforementioned PACE Districts. SECTION 5. IMPLEMENTING ADMINISTRATIVE ACTIONS. The City Manager is hereby authorized and directed to take such actions as he/she may deem necessary and appropriate in order to implement the provisions of this Resolution. The City Manager may, as deemed appropriate, necessary and convenient, delegate the powers of implementation as herein set forth to such City employees as deemed effectual and prudent. SECTION 6. SCRIVENER'S ERRORS. Typographical errors and other matters of a similar nature that do not affect the intent of this Resolution, as determined by the City Clerk and City Attorney,may be corrected. SECTION 6. CONFLICTS. All Resolutions or parts of Resolutions in conflict with any of the provisions of this Resolution are hereby repealed. 11 SECTION 7. SEVERABILITY. If any Section or portion of a Section of this Resolution proves to be invalid, unlawful, or unconstitutional, it shall not be held to invalidate or impair the validity, force, or effect of any other Section or part of this Resolution. SECTION 8. EFFECTIVE DATE.This Resolution shall become effective immediately upon its passage and adoption. PASSED AND ADOPTED this /eY day of Tisi , 2023. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA • Melanie Sibbitt, City Clerk Rusty Johnso , 1152, FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON 7 /..y If,2023, LEGALITY THIS 11%"3? DAY OF UNDER AGE1VbA ITEM NO. . , 2023. SHUFFIELD,LOWMAN & WILSON, P.A. By: City A 12