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HomeMy WebLinkAbout2023-05-8774ORDINANCE NO. 2023-05-8774 AN ORDINANCE ESTABLISHING AN ENERGY PROJECT ASSESSMENT DISTRICT (EPAD) PROGRAM PURSUANT TO KRS 65.205 TO 65.209 TO ADVANCE THE CONSERVATION AND EFFICIENT USE OF ENERGY AND WATER RESOURCES WITHIN THE CITY OF PADUCAH, KENTUCKY BY ALLOWING FOR ENERGY PROJECTS TO BE FINANCED BY ASSESSMENTS IMPOSED UPON THE REAL PROPERTY BEING IMPROVED THROUGH THE ENERGY PROJECTS; PROVIDING THE TERMS AND CONDITIONS OF THE PROGRAM; STATING THE INTENTION THAT ASSESSMENTS WILL BE UTILIZED TO SUPPORT PRIVATE SECTOR ENERGY PROJECTS; DESIGNATING THE EPAD AND ITS BOUNDARIES; PROVIDING FOR THE ADMINISTRATION OF THE EPAD PROGRAM; DETERMINING THE PROCEDURE BY WHICH OWNERS OF REAL PROPERTY MAY PETITION THE CITY FOR PARTICIPATION IN THE PROGRAM; DESIGNATING THE FINANCE DEPARTMENT AS THE COLLECTOR OF THE ASSESSMENT; AND AUTHORIZING THE MAYOR TO EXECUTE ANY AND ALL AGREEMENTS AND OTHER DOCUMENTS FOR THE IMPLEMENTATION AND ADMINISTRATION OF THE PROGRAM WHEREAS, KRS Sections 65.205 to 65.209 (the "EPAD Act") authorize local governments in the Commonwealth of Kentucky, including cities, to establish programs to advance the conservation and efficient use of energy and water resources within their jurisdictions by allowing for eligible energy projects to be financed by assessments imposed upon the real property being improved through those energy projects; and WHEREAS, to establish an energy project assessment district ("EPAD") program, the governing body of a local government shall adopt a resolution or ordinance providing the terns and conditions of the program; and WHEREAS, the Board of Commissioners (this "Board") of the City of Paducah, Kentucky (the "City") has determined to establish an EPAD program and provide for the terms and conditions of the program by the adoption of this Ordinance; and WHEREAS, the terms and conditions to be provided include the designation of the EPAD and its boundaries, the administration of the EPAD program, the procedure for the owners of real property located within the EPAD to petition the local government for participation in the program, the designation of the Finance Department of the City as the collector of the assessments, and the authorization of any agreements necessary for the implementation and administration of the EPAD program; and WHEREAS, this Board determines it to be in the best interest of the citizens of the City to establish an EPAD program pursuant to the EPAD Act to enable eligible property owners to finance qualifying energy projects to their properties through the imposition of assessments on the improved real property within the City. NOW, THEREFORE, be it ordained by the City Commission of the City of Paducah as follows: SECTION 1. By this Ordinance and pursuant to KRS §§ 65.205 to 65.209 (the "EPAD Act") there is established an energy project assessment district ("EPAD") program within the boundaries of City of Paducah, Kentucky (the "City") to advance the conservation and efficient use of energy and water resources within the City by allowing for eligible energy projects to be financed by assessments imposed upon the real property being improved through those energy projects (the "EPAD Program"). All capitalized terms used in this Ordinance where the rules of grammar would not otherwise require capitalization and not defined in this Ordinance shall have the meanings given to them in the EPAD Act, particularly KRS § 65.205. SECTION 2. As authorized under the EPAD Act, the City intends to use the assessments on relevant real property imposed under the EPAD Program to support private sector Energy Projects. SECTION 3. The EPAD is designated the "City of Paducah EPAD." The boundaries of the City of Paducah EPAD shall include the entire geographic territory of the City. SECTION 4. The EPAD Program shall be administered by the City (initially, the "Program Administrator"). If so determined by the City Manager, the City is authorized to engage a third -party EPAD Program Administrator to administer the EPAD Program, and from and after that time such administrator shall be the "Program Administrator." In addition to the actions and determinations specifically described in this Ordinance (as it may be amended and in effect from time to time), the Program Administrator may take such further actions and exercise such further discretion as may be necessary for the efficient and effective administration of the EPAD Program, provided that all such actions and discretion shall at all times be authorized under the EPAD Act and shall not be inconsistent with the terms and conditions of the EPAD Program set forth in this Ordinance. Without limiting the generality of the foregoing, the Program Administrator may from time to time develop additional eligibility criteria, develop or adopt a handbook for the EPAD Program, develop a standard application form, and retain third -party services in association with the management and operation of the EPAD Program, all of the costs of which shall be paid from fees collected with assessments imposed under the EPAD Program. -- SECTION 5. In order to participate in the EPAD Program, all of the owners of record (acting as described in Section VIL8. of this Ordinance) of real property located within the City of Paducah EPAD shall submit an application to the Program Administrator. For all purposes of the EPAD Act, the application shall constitute the "petition" described in KRS § 65.206(2)(a)(3) and KRS § 65.207(2)(a)(1) and the "request" described in KRS § 65.206(4). The Program Administrator shall review any application and any documents or instruments submitted with the application (collectively, the "Application") and determine whether the Application and the information described in the Application complies with the terms and conditions of the EPAD Program as set forth in this Ordinance and the EPAD Act, each as they may be in effect at any time. If the Program Administrator determines that the Application and the information described in the Application comply with the terms and conditions of the EPAD Program and the EPAD Act, the Program Administrator shall evidence the approval of the Application by countersigning the Application. The Program Administrator's approval of the Application shall constitute the authorized official's approval of a request from the owner of record of real property under KRS § 65.206(4). SECTION 6. As authorized under KRS § 65.206(4), following the Program Administrator's approval of the Application and upon the execution of a financing agreement in connection with the Application, the City may impose an assessment upon the real property, which shall be used to repay the owner's financing of an Energy Project on that property and the costs of any upgrades to the electrical or gas distribution system connected to that property necessary to accommodate the Energy Improvement. The financing for Energy Projects under the EPAD Program may be provided by any third party or, if authorized by the Local Government, by any Local Government that may validly provide such financing. In order to impose the assessment, and as authorized under KRS § 65.207, an Application approved by the Program Administrator shall be forwarded to the City along with a proposed financing agreement for the Energy Project described in the Application and a proposed notice of assessment in the form required under KRS § 65.207(3). This Board then may adopt legislation approving and authorizing the financing agreement and the notice of assessment and imposing the assessments. If approved, the financing agreement and the notice of assessment each shall be executed, and the notice of assessment shall be filed in the real property records of the City. SECTION 7. In order to be eligible to participate in the EPAD Program, all of the owners of record (acting as described in subsection 8 below) of real property located within the EPAD shall submit an Application setting forth the following matters and containing the following elements: 1. The names and addresses of all of the owners of record of the real property; 2. The addresses, parcel identification numbers, legal descriptions, or other identifying information for the real property to be assessed sufficient to allow the Program Administrator to determine that the real property is located within the EPAD and for the City to impose assessments on the real property, including, if determined by the Program Administrator, current title examinations, title insurance commitment letters, or other documentation of ownership and identify of the real property; 3. A technical description of the Energy Improvements to be installed or modified on the real property, including the estimated useful life of the Energy Improvements and a review of the real property's baseline energy or water usage conditions and the energy or water savings projected to be achieved as a result of the Energy Project; 4. An estimated budget and an estimated timeline for implementation for the Energy Project; 5. Estimated financing terms for the Energy Project, including, if known, the identity of the provider of the financing; 6. The written consent of the holder of each existing mortgage lien on the relevant property stating that the lien holder does not object to the imposition of the assessment; 7. The certification of each of the owners of record of the real property that: a. The identity of the owners, the identity of real property, the attributes of the Energy Project, the estimated terms of financing, the identify and consent of all holders of mortgage lines on the property, and all other matters described in the Application are true and correct as of the date of submission of the Application; b. The owners, the real property, the Energy Project, and the financing described in the Application are eligible for participation in the EPAD Program under its terms and conditions and under the EPAD Act; c. None of the owners in the last three years have filed for bankruptcy protection or had a petition in bankruptcy filed against them which was not dismissed within 30 days; and d. That the real property is current in the payment of all obligations secured by the real property upon which the Energy Project will be installed or modified, including property taxes, assessments, and tax liens and that the real property has had no delinquencies within the past three years or since the acquisition of title to the real property if less than three years. 8. Be signed by all of the owners of record of the real property to be assessed or by any one or more of them or by any one or more of their authorized agents, each of which is duly authorized to execute instruments binding the real property and any non -signing owners, as such authorization may be sufficiently evidenced to the Program Administrator in the Program Administrator's sole discretion; 9. Such other information, documents, materials, statements, certifications, waivers, or signatures as the Program Administrator may reasonably require from time to time in order to determine the compliance of the Application and the Energy Project described in the Application with the terms and conditions of the EPAD Act and the EPAD Program. SECTION 8. Unless altered by the Program Administrator in accordance with Section IV of this Ordinance, initially all Energy Improvements, Energy Projects, and Real Property (as defined in KRS § 65.205(6) to exclude residential property consisting of fewer than five units) _i eligible for participation in an EPAD program under the EPAD Act and located within the boundaries of the City shall be eligible for participation in the EPAD Program. SECTION 9. As authorized under KRS § 65.206(6), the owners of real property approved for participation in the EPAD Program may directly purchase or acquire by contract, through lease, power purchase agreement, or other service contract the equipment and materials necessary for the installation or modification of an Energy Improvement. SECTION 10. As provided in KRS §§ 65.207(4) and 65.206(c), assessments imposed upon real property under the EPAD Program shall be collected and distributed by the Finance Department, or a third -party servicer, as designated by the property owner to the City, in the same manner as other property taxes. Unpaid assessments shall bear the same penalty as general state and local ad valorem taxes. The assessments, together with any interest and penalties, shall constitute a first and prior lien against the real property on which they are imposed from the date on which the notice of assessment is recorded pursuant to the EPAD Act until paid. The lien of the assessments shall have the same priority status as a lien for any other state or local ad valorem tax upon the property. SECTION 11. As authorized under KRS § 65.206(2)(c)(2), the City may impose a fee on participating property owners to offset the costs of administering the program in an amount which may be determined from time to time by the City, provided that any fee so imposed shall not exceed the cost of services performed. The cost of services performed shall include any fees or expenses to or of the Program Administrator. Any fees so imposed may be paid by property owners or any other persons at the closing of the financing of the costs of the related Energy Project, may be included within the financed costs of the Energy Project, may be added as an additional portion of each installment of the assessments, or any combination of the above. SECTION 12. In order to provide for the efficient collection, distribution, and enforcement of the assessments imposed under the EPAD Program, and as authorized under KRS § 65.206(2)(d) the Mayor is hereby authorized to execute all agreements, instruments, or certificates as may, in the City Manager's discretion, be necessary and appropriate in connection with the implementation and establishment of the EPAD Program. SECTION 13. The terms and conditions of the EPAD Program set forth in this Ordinance may be amended by an Ordinance adopted by the City, except that, as provided in KRS § 65.206(2)(b), no amendment shall be adopted to retroactively change the conditions under which an existing assessment was imposed, unless all of the owners of record (acting as described in Section VII.8. of this Ordinance) of the affected real property consent to the amendment in writing. SECTION 14. This Ordinance shall be in effect and in full�orce from and after its passage, publication, and recording, according to law. ATT ST: "1 lndsay Parish, 4 Clerk Introduced by the Board of Commissioners, April 25, 2023 Adopted by the Board of Commissioners, May 9, 2023 Recorded by the City Clerk, May 8, 2023 Published by The Paducah Sun, May 12, 2023 Ord\Establish EPAD 2023 Mayor CERTIFICATE OF RECORDING OFFICER I, the undersigned, hereby certify that I am the duly qualified and acting City Clerk of the City of Paducah, Kentucky and that the foregoing is a full, true and correct copy of Ordinance No. 2023-05-8774 adopted by the governing body of the City of Paducah, Kentucky at a meeting duly held on May 9, 2023; and that this official action appears as a matter of public record in the official records or journal of the City of Paducah; and that said meeting was held in accordance with all applicable requirements of Kentucky law, including Sections 61.810, 61.815, 61.820 and 61.823 of the Kentucky Revised Statutes; and that a quorum was present at the meeting; and that this official action has not been modified, amended, revoked or repealed and is now in full force and effect. IN TESTIMONY WHEREOF, witness my signature, below, on May 1 6, 2023. Lindsay Paris , City Clerk