HomeMy WebLinkAbout20173636.tiffRESOLUTION
RE: APPROVE COLORADO C -PACE PARTICIPATION AGREEMENT AND AUTHORIZE
CHAIR TO SIGN - COLORADO NEW ENERGY IMPROVEMENT DISTRICT (NEID)
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, Section 32-20-101, C.R.S. et seq. establishes the Colorado New Energy
Improvement District (the "District") and provides for the creation of a new energy improvement
program within the state of Colorado, and
WHEREAS, the District desires to conduct the Colorado Commercial Property Assessed
Clean Energy ("C -PACE") Program in Weld County, and
WHEREAS, pursuant to. Section 32-20-105(3), C.R.S, the District may only conduct the
C -PACE Program in Weld County if the Board of County Commissioners authorizes it do so by
resolution, and
WHEREAS, the District has presented the Board with an agreement entitled, "Colorado
C -Pace NEID — County of Weld Participation Agreement" (the "Agreement"), and has asked the
Board to approve a resolution authorizing the District to conduct the C -Pace program in Weld
County in accordance with the terms and limitations set forth in the Agreement, a copy of which
is attached hereto and incorporated herein by reference, and
WHEREAS, after review, the Board deems it advisable to approve said Agreement and to
authorize the District to conduct the C -Pace Program in Weld County in accordance with the terms
and limitations set forth in said Agreement.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the agreement entitled, "Colorado C -Pace NEID — County of Weld
Participation Agreement," be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Colorado New Energy Improvement
District be, and hereby is, authorized to conduct the C -PACE Program in Weld County in
accordance with the terms and limitations set forth in the Agreement.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign the Agreement and to execute any and all other necessary letters, orders, or documents
as may be required to facilitate the successful implementation of the C -PACE Program in Weld
County.
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2017-3636
BC0050
RE: COLORADO C -PACE PARTICIPATION AGREEMENT - COLORADO NEW
ENERGY IMPROVEMENT DISTRICT (NEID)
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 23rd day of October, A.D., 2017.
BOARD OF COUNTY COMMISSIONERS
WELD COQ NTY, COL DO
ATTEST:��d�v�1J jC.L;ok.
Weld County Clerk to the Board
BY.
AP
uty Clerk to the Board
Coun ttorney
Date of signature: to I aM I
Steve Moreno, Pro -Tern
zad, Chair
Sean P. Conway
ike Freeman
XCUSED
Barbara Kirkmeyer
2017-3636
BC0050
COLORADO C -PACE NEID - COUNTY OF WELD PARTICIPATION AGREEMENT
THIS COLORADO C -PACE NEID - COUNTY OF WELD PARLIFIPATION
AGREEMENT (the "Agreement") is made and entered into as of theol1/45ay of October, 2017,
by and between the County of Weld, a body corporate and politic of the State of Colorado, by
and through the Board of County Commissioners of the County of Weld (the "Board," or the
"County of Weld," or the "County"), and the Colorado New Energy Improvement District, an
independent body corporate and politic of the State of Colorado established under C.R.S. § 32-
20-104(1) (the "District") (each a "Party" and collectively the "Parties").
RECITALS
WHEREAS, C.R.S. §§ 32-20-101 et seq. (the "Colorado C -PACE Act" or the "Act")
established the District and a commercial property assessed clean energy (C -PACE) program for
the State of Colorado; and
WHEREAS, C -PACE is a program to facilitate financing for clean energy improvements
to commercial, industrial, multi -family, institutional and agricultural properties by utilizing a
local assessment mechanism to provide security for repayment of the financing; and
WHEREAS, under C.R.S. § 32-20-105(1), the purpose of the District is "to help provide
the special benefits of new energy improvements to owners of eligible real property who
voluntarily join the district by establishing, developing, financing, and administering a new
energy improvement program through which the district can provide assistance to such owners in
completing new energy improvements"; and
WHEREAS, C.R.S. § 32-20-105(3) directs the District to "establish, develop, finance,
and administer" the C -PACE program but stipulates that the C -PACE program may only operate
in a given county if the board of county commissioners of the county has adopted a resolution
authorizing the District to conduct the program within the County; and
WHEREAS, the Board has approved this Agreement by resolution which authorizes the
District to conduct the C -PACE program within County of Weld in accordance with and
pursuant to the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
set forth herein and in order to effectuate the purposes of the C -PACE Act, it is hereby agreed as
follows:
1. Definitions.
a. "C -PACE Assessment" means the C -PACE assessment authorized by the Act, and as
further defined at C.R.S. § 32-20-103(14).
b. "Commercial Building" means any real property other than a residential building
containing fewer than five dwelling units.
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c. "New Energy Improvement" means one or more energy efficiency improvements or
renewable energy improvements, or both, made to Participating Property that will reduce
the energy or water consumption of or add energy produced from renewable energy
sources with regard to any portion of the Participating Property, as specified in the C -
PACE Act and in the Program Guidelines.
d. "Participating Property" means a Commercial Building that has been approved by the
District to participate in the C -PACE program.
e. "Program Guidelines" means the rules, regulations and guidelines promulgated by the
District to implement the C -PACE program pursuant to the C -PACE Act, as the same
may be amended or supplemented from time to time.
2. Obligations of the District.
a. Program Requirements.
Pursuant to the C -PACE Act, the District:
(1) shall develop Program Guidelines governing the terms and conditions under which
private financing will be made available to the C -PACE program, and may serve as
an aggregating entity for the purpose of securing state or private third -party financing
for New Energy Improvements pursuant to the Act; and
(2) shall receive and review applications submitted by property owners within the County
for financing of New Energy Improvements, and approve or disapprove such
applications in accordance with the Program Guidelines and underwriting procedures
and requirements established by the District.
b. Project Requirements.
If a property owner requests financing through the C -PACE program for energy
improvements under the C -PACE Act, the District shall:
(1) ensure that the project is intended for and limited to a Commercial Building as that
term is defined herein, and
(2) share the project application, along with the preliminary project amortization
schedule, with the Board at least ten (10) days prior to the date on which the District
is scheduled to adopt the preliminary assessment resolution to provide the Board the
opportunity to adopt a resolution deauthorizing the District from conducting the
program within the County if the Board has serious reservations about the project,
and
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(3) impose requirements and criteria on the project to ensure that the proposed energy
improvements are consistent with the purpose and requirements of the C -PACE Act,
and
(4) provide the notification and conduct the hearing required by C.R.S. § 32-20-106(3) of
the C -PACE Act prior to imposing a special C -PACE Assessment on any
Participating Property.
c. Assessment and Financing Agreement for Project.
The District and the party providing the financing (the "Capital Provider") may enter into
an Assessment and Financing Agreement with the owner of Participating Property (the
"Assessment & Financing Agreement"). The Assessment & Financing Agreement shall
clearly state the amount of the C -PACE Assessment to be levied against the Participating
Property. The District and the Capital Provider shall disclose to the property owner the
costs and risks associated with participating in the C -PACE program, including risks
related to the failure of the property owner to pay the C -PACE Assessment provided for
in the Assessment & Financing Agreement. The District and the Capital Provider shall
disclose to the property owner the effective interest rate on the C -PACE Assessment,
including program application and other fees and charges imposed by the District to
administer the C -PACE Program, fees charged by the Treasurer for collection, as well as
any fees charged by the Capital Provider, and the risks associated with variable interest
rate financing, if applicable. The property owner must be informed that each New
Energy Improvement, regardless of its useful life, will be bundled with other such
improvements on the Participating Property for purposes of assessment and paid for over
the assessment term. The Assessment & Financing Agreement shall clearly state that the
financing being provided does not constitute the giving, pledging or loaning of the faith
and credit of the County of Weld.
d. Establish C -PACE Assessments and Assessment Units.
(1) With respect to each C -PACE Assessment placed on a Participating Property, the
District shall determine the amount of the C -PACE Assessment and establish the
appropriate special assessment units and specify the method of calculating the C -
PACE Assessment for each Participating Property. The District's Board of Directors
shall approve the specifics of the applicable C -PACE Assessment including, without
limitation, the amount of the C -PACE Assessment, term, interest rate and repayment
dates, which approval shall be set out in an assessing resolution (a "Resolution"). In
no event shall the amount of any C -PACE Assessment exceed the value of: (a) the
special benefit provided to the Participating Property, or (b) the Participating
Property, as provided in C.R.S. § 32-20-106(1). Costs incurred for any property not
approved to participate may not be included in a certified assessment roll. The C -
Pace Assessment shall not constitute or become an indebtedness, a debt or a liability
or a general charge against the credit or taxing power of the County of Weld, and the
County of Weld shall not be liable thereon.
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(2) The District shall cause to be prepared and certified under the District's corporate seal
to the County Treasurer annually no later than December 1st of each year a District
assessment roll for each Participating Property in a form determined by the District
and acceptable to the County Treasurer. Such assessment roll shall specify for the
Participating Property to which it pertains the amount of each installment of principal
and interest (if the C -PACE Assessment is payable in installments), provided that
each installment will become due on the date or dates that the Participating Property
taxes are payable under C.R.S. Section 39-10-104.5(2) (which states in part "property
taxes may be paid in full or in two equal installments, the first such installment to be
paid on or before the last day of February and the second installment to be paid no
later than the fifteenth day of June."), and C.R.S. 39-10-104.5(3)(b) (which states in
part "if the full amount of the of taxes is paid in a single payment on or before the last
day of April, then no delinquent interest shall accrue on any portion of the taxes."),
and the date on which the assessment is expected to be satisfied in full. Once the C -
Pace Assessment roll for each participating property is certified to the County
Treasurer, the Assessment installments become part of the property tax on each
participating property and payment will be collected as required by C.R.S. 39-10-
104.5(2) and C.R.S. 39-10-104.5(3)(b).
e. Filing Assessment with County Clerk & Recorder.
The District shall transmit to the Weld County Clerk and Recorder for recording copies
of each Resolution and certified assessment roll affecting Participating Properties located
in Weld County, as specified in C.R.S § 32-20-107(2). After recording the Resolution
and certified assessment roll, the Weld County Clerk and Recorder, the District shall file
a copy of each Resolution and certified assessment roll with the Weld County Assessor.
3. Obligations of the County.
a. Consideration of Project Application and Preliminary Amortization Schedule.
Upon receipt of a project application and preliminary project amortization schedule from
the District, the Board shall review the same and inform the District within seven (7) days
of such receipt as to whether the Board intends to adopt a resolution deauthorizing the
District from conducting the program within the County of Weld because the Board has
serious reservations about the project.
b. Billing of C -PACE Assessment.
Upon receiving the certified assessment rolls from the District, the Weld County
Treasurer shall add the amounts required to be paid by owners of the Participating
Properties burdened by such C -PACE Assessments specified on such rolls to the property
tax bills of the respective Participating Properties.
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c. Billing and Collection; Payment to the District.
(1) As specified in 0, the County of Weld shall bill the C -PACE Assessments in the same
manner and at the same time as it bills its real property taxes. The C -PACE
Assessment payments shall be a separate clearly defined line item and shall be due on
the same dates as the County's real property taxes. The property taxes and
assessment payments must paid in full — no partial payments will be accepted except
as described in C.R.S. 39-10-104.5(2).
(2) Billed C -PACE Assessment amounts shall be collected in the same manner and at the
same time as the property taxes of the County of Weld on real property, including, in
the event of default or delinquency, with respect to any penalties, fees and remedies,
and lien priorities as provided in Section 32-20-107(1) of the C -PACE Act. Interest
shall be collected at the rate specified in C.R.S. § 5-12-106(2) and (3), in accordance
with C.R.S. § 32-20-106(7), as may be amended. Penalties and interest on delinquent
C -PACE Assessments shall be charged in the same manner and rate as the County of
Weld charges for delinquent real property taxes.
(3)
The Weld County Treasurer shall remit all amounts collected with respect to the C -
PACE Assessments within any calendar month to the District in same manner as
taxes are distributed accordance with C.R.S. §39-10-107(1)(a) less the County
Collection Fee described in Section 3(d) of this Agreement. The County of Weld
shall provide monthly collection reports to the District, and the District, at its own
expense, shall have the right to audit the records relating to the C -PACE Assessments
upon reasonable notice at reasonable times. The District and County of Weld agree
to provide each other with such reasonable information as they may request and the
District and the County agree to provide such information in an electronic format
satisfactory to the other.
d. County Collection Fee.
The Weld County Treasurer shall retain a collection fee as specified in C.R.S. § 30-1-
102(1)(c) for each C -PACE Special Assessment and delinquencies that it collects as part
of the program.
e. Collection of Delinquent Payments.
In the event of the failure by the owner of the Participating Property to pay the
installment due on a C -Pace Assessment, the Weld County Treasurer shall advertise and
sell the assessed eligible real property tax lien in accordance with Title 39, C.R.S.
Advertisements and sales shall be made at the same times, in the same manner, under all
the same conditions and penalties, and with the same effect as provided by general law
for sales of real estate tax liens in default of payment of the general property tax. The
sale proceeds up to the amount in the certified assessment roll, less the County Collection
Fee described in Section 3(d) of this Agreement and any other statutorily imposed fees
required to be paid to the County of Weld, shall be forwarded to the District.
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f. Promotion of Program; Assistance for District Financing.
The County of Weld shall use good faith efforts to assist the District in local marketing
efforts and outreach to the local business community to encourage participation in the C -
PACE program, such as including C -PACE program information on the County's
website, distributing an informational letter from appropriate County officials to local
businesses regarding the program, and conducting one or more business roundtable
events.
4. Term and Termination.
The term of this Agreement shall commence upon the date first written above. This
Agreement shall be in full force and effect until all of the C -PACE Assessments have been
paid in full or deemed no longer outstanding. As authorized by C.R.S. § 32-20-105(3), the
Board of County Commissioners of the County may adopt a resolution deauthorizing the
District from conducting the program within the County. If the County adopts a
deauthorizing resolution, the County shall continue to meet all of its obligations under this
Agreement and Article 20, Title 32, C.R.S., as to all program financing obligations existing
on the effective date of the deauthorizing resolution until any and all C -PACE special
assessments within the County have been paid in full and remitted to the District.
5. Default.
Each Party shall give the other Party written notice of any breach of any covenant or term of
this Agreement and shall allow the defaulting Party thirty (30) calendar days from the date of
its receipt of such notice within which to cure any such default or, if it cannot be cured within
the thirty (30) days, to commence and thereafter diligently pursue to completion, using good
faith efforts to effect such cure and to thereafter notify the other Party of the actual cure of
any such default. The Parties shall have all other rights and remedies provided by law,
including, but not limited to, specific performance.
6. Miscellaneous Provisions.
a. Amendment and Termination.
After the District sells and issues its bonds, notes or other obligations (or a third party
capital provider provides funds) to finance the costs of any C -PACE project, this
Agreement may not be amended or terminated by the Parties without the prior approval
of the holders of the District's bonds, notes or other obligations (or such third party
capital provider, as applicable), which approval shall be obtained in accordance with the
indenture or other documents entered into by the District in connection with such
financing.
b. Severability.
If any clause, provision or section of this Agreement is held to be illegal or invalid by any
court, the invalidity of the clause, provision or section will not affect any of the
Page 6 of 10 Pages
remaining clauses, provisions or sections, and this Agreement will be construed and
enforced as if the illegal or invalid clause, provision or section has not been contained in
it.
c. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of which together shall constitute but one and the same
instrument.
d. Notices.
All notices, requests, consents and other communications shall be in writing and shall be
delivered, mailed by first class mail, postage prepaid, or overnight delivery service, to the
Parties, as follows:
If to the County:
Board of County Commissioners
of the County of Weld
P.O. Box 758
1150 O Street
Greeley, Colorado 80632
With a Copy to:
Weld County Attorney
P.O. Box 758
1150 O Street
Greeley, Colorado 80632
If to the District:
Colorado New Energy Improvement District
c/o Colorado Energy Office
1580 Logan St., Suite 100
Denver, Colorado 80203
Attention: Director
With a Copy to:
Marcus McAskin
Michow Cox & McAskin LLP
6530 S. Yosemite Street, Suite 200
Greenwood Village, CO 80111
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e. Amendment.
Except as otherwise set forth in this Agreement, any amendment to any provision of this
Agreement must be in writing and mutually agreed to by the District and the County of
Weld.
f. Applicable Law and Venue.
This Agreement and its provisions shall be governed by and construed in accordance with
the laws of the State of Colorado. In any action, in equity or law, with respect to the
enforcement or interpretation of this Agreement, venue shall be in the district courts of
the County of Weld, the State of Colorado.
g. Entire Agreement.
This instrument constitutes the entire agreement between the Parties and supersedes all
previous discussions, understandings and agreements between the Parties relating to the
subject matter of this Agreement. In the event of any conflict between the Program
Guidelines and this Agreement, the terms of this Agreement shall control.
h. Headings.
The headings in this Agreement are solely for convenience, do not constitute a part of this
Agreement and do not affect its meaning or construction.
i. Changes in Law or Regulation.
This Agreement is subject to such modifications as may be required by change in federal
or Colorado state law, or their implementing regulations. Any such required modification
shall automatically be incorporated into and made a part of this Agreement on the
effective date of such change, as if fully set forth herein. Headings in this Agreement are
solely for convenience, do not constitute a part of this Agreement and do not affect its
meaning or construction.
Third Party Beneficiaries.
It is specifically agreed among the Parties executing this Agreement that it is not intended
by any of the provisions of any part of this Agreement to create a third party beneficiary
hereunder, or to authorize anyone not a party to this Agreement to maintain any claim
under this Agreement. The duties, obligations and responsibilities of the Parties to this
Agreement with respect to third parties shall remain as imposed by law.
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k. No Waiver of Rights.
A waiver by any Party to this Agreement of the breach of any term or provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach by
either Party.
1. No Waiver of Governmental Immunity.
Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any
governmental immunity that may be available by law to the County of Weld or to the
District, their officials, employees, contractors, or agents, or any other person acting on
behalf of the County or the District and, in particular, governmental immunity afforded or
available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10 of
the Colorado Revised Statutes.
m. Independent Entities.
The Parties shall perform all services under this Agreement as independent entities and
not as an agent or employee of the other Party. It is mutually agreed and understood that
nothing contained in this Agreement is intended, or shall be construed as, in any way
establishing the relationship of co-partners or joint ventures between the Parties hereto, or
as construing either Party, including its agents and employees, as an agent of the other
Party. Each Party shall remain an independent and separate entity. Neither Party shall be
supervised by any employee or official of the other Party. Neither Party shall represent
that it is an employee or agent of the other Party in any capacity.
REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.
SIGNATURE PAGE FOLLOWS.
Page 9 of 10 Pages
IN WITNESS WHEREOF, the Board and the District have each caused this Agreement
to be executed and delivered as of the date indicated above:
ATTES
Weld Cou•
nt t thej0°
By:
Deputy Cler to the Bo
Attest:
By:
COUNTY OF WELD, a political subdivision
the STATE OF COLORADO
lie A. Cozad, Chair, Board(of,County
ommissioners of Weld County OCT 2 3 2017
COLORADO NEW ENERGY
IMPROVEMENT DISTRICT
By:
Jeff ing, Recording Secretary Paul Scharfenberger, Chairman of the Board
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