10 - Expansion of Property Assessed Clean Energy (PACE) Program Presentation & DiscussionItem No. 10
TO: City Council
Grayson Path, City Manager
FROM: Stephanie H. Harris, City Attorney
SUBJECT: PRESENTATION AND DISCUSSION OF EXPANDING PROPERTY
ASSESSED CLEAN ENERGY (PACE) PROGRAM TO PROJECTS
THROUGHOUT THE CITY
DATE: July 12, 2021
BACKGROUND: You will recall that in February and March of this year, Council adopted a
PACE program. While the jurisdiction of the program was all properties inside the city limits,
the program was set up for a single pilot project involving Paris Lakes. We now have a request
from Harrison Walker and Harper (HWH) to expand the program to projects throughout the city
so that HWH can take advantage of the program for energy efficient upgrades to various of its
properties.
As a refresher, and as background for Council Member Pankaj, Chapter 399 of the Texas Local
Government Code (LGC) codifies the Property Assessed Clean Energy (PACE) Act. PACE
financing is an alternative to traditional financing for energy efficiency, water conservation and
renewable energy projects for privately -owned commercial and industrial properties. PACE
makes it possible for commercial, industrial, and certain residential property owners:
■ to obtain low-cost, long-term financing
➢ to improve energy efficiency, generate renewable energy, and achieve other vital
public benefits
➢ to increase the value of their property through improvements to lighting, roofing,
HVAC systems, boilers and chillers, insulation, glazed windows, hot water
heating systems, renewable energy systems, and more
■ to finance these projects in away that is cash-flow positive —payback terms of up to 30
years can result in yearly savings from energy improvements greater than annual PACE
payments
Unlike more traditional means of financing, PACE financing is secured by an assessment on the
property that is in turn secured by a senior priority lien on the property that runs with the
property and cannot be extinguished by a foreclosure of a mortgage or a property tax lien. The
PACE lien is enforced in the same manner in which a property tax lien is enforced, through
foreclosure by the local governmental entity.
PACE financing is designed to be risk- and cost-free for the local government.
Phase 1— Establishing the framework for a local PACE Program
Phase 1 includes four primary statutory requirements for a local county or municipality to
establish the framework for a PACE program within its jurisdiction. The Texas statute code
requires a report to be published for the public and posted on the municipality's website. This
report outlines the primary facets of the local program, application process, financing guidelines,
and other big -picture and administrative items pertinent to running a PACE program. Next, the
statute requires two resolutions to be adopted by the local county or municipality, including a
resolution of intent to create a PACE program, and a resolution to establish the PACE program.
After the resolution of intent is adopted, the statute requires the governmental body to hold a
public hearing on the proposed program and report. After the public hearing, the governmental
body passes the second resolution, the resolution to establish the PACE Program.
In this case, we will only be amending the existing program, but the following steps still apply.
1. Public PACE Report (Required by Section 399.009)
— Report by local government describing the PACE program once structure has
been decided. This report must be made available for public inspection on the
local government's website and at the office of designated official.
2. Resolution of Intent to Create PACE Program (Required by Section 399.008(a)(1))
— Include finding that projects will serve a valid purpose, local government intends
to make contractual assessments to repay financings, description of project and
map boundaries, reference to the Public PACE Report, statement of the time and
place for a public hearing.
3. Public Hearing (Required by Section 399.008(a)(2))
— Public may comment on proposed program and report.
4. Resolution to Establish Program (Required by Section 399.008(a)(3))
— This resolution should include each item in the Public PACE Report required by
statute, or it may incorporate the Report by reference; this resolution should also
include a description of each aspect of the program that may be amended only
after another public hearing is held.
Phase 2 — Set up administration of the local PACE Program
The PACE Program can be administered in one of several ways: (1) via the local government
itself, (2) by implementing a program jointly with another local government, or (3) by contract
with a third -party administrator. Administration of the program would include the application
process, application review, and possible servicing functions also.
The administration process will include the requirements of Section 399.009(a)(9)-(11) and (15)-
(16) of the LGC: (9) description of the application process and eligibility requirements for
financing qualified projects to be repaid through contractual assessments under the program; (10)
the method described below for ensuring that property owners requesting to participate in the
program demonstrate the financial ability to fulfill financial obligations to be repaid through
contractual assessments; and (11) explanation of the manner in which property will be assessed
and assessments will be collected ... (15) a description of quality assurance and antifraud
measures to be instituted for the program; and (16) the procedures for collecting the proposed
contractual assessments. All of these elements are required to be addressed in some manner in
the Report.
Per the Report requirements of Section 399.009(b) of the LGC, there are requirements that the
method for ensuring a demonstration of financial ability of the property owners under Subsection
(a)(10) be based on appropriate underwriting factors, including: (1) providing for verification
that the property owner requesting to participate under the program is the legal owner of the
benefitted property, is current on mortgage and property tax payments, and is not insolvent or in
bankruptcy proceedings; and the title of the benefited property is not in dispute; and (2) requiring
an appropriate ratio of the amount of the assessment to the assessed value of the property.
The state permits a local government to impose fees to offset the costs of administering a
program (See Section 399.008(e).) Fees authorized by this subsection are to be assessed as: (1) a
program application fee paid by the property owner requesting to participate in the program; (2)
a component of the interest rate on the assessment in the written contract between the local
government and the property owner; or (3) a combination of (1) and (2).
Phase 3 — Financing and Project Completion
The primary operative document for each program, is the "program agreement" or "Owner
Contract", which is required by the Section 399.005 of the LGC. The Owner Contract creates
the property assessments and senior lien and must obtain written consent of any existing
mortgage lenders as a condition precedent to this agreement. Below are each of the statutory
requirements to entering into the Owner Contract, third -party lender financing, and review of the
proposed and completed project, all of which comprise Phase 3 of the local PACE Program.
1. Owner Contract between Pace Program and Property Owner (Required by Section
399.005)
— This is the primary Program agreement; this agreement creates the property
assessment and senior lien, and specifies terms of financing to be provided by an
eligible lender.
2. Consent of existing mortgage lender (Required by Section 399.010)
— Prior to signing Owner Contract, each existing mortgage lien holder must be
given 30 days written notice, and give written consent.
3. Notice of assessment lien (Required by Section 399.013)
— Filed in the real property records of county where property is located.
— A local government that authorizes financing through contractual assessments
under this chapter shall file written notice of each contractual assessment in the
real property records of the county in which the property is located. The notice
must contain: (1) the amount of the assessment; (2) the legal description of the
property; (3) the name of each property owner; and (4) a reference to the statutory
assessment lien provided under this chapter
4. Lender Contract between Property Owner and Capital Provider (Required by Section
399.006(d))
— Provides financing by third -party lender and servicing of the debt through
assessments.
— Servicing Agreement: Includes billing, collecting and remitting payments to the
third -party lender. Servicer also maintains payment records, account balances,
etc. (See Section 399.015, Local government may contract with another entity for
collection of assessments imposed by the local government.)
5. Review of Proposed Project and Completed Project (Required by Section 399.011(a) and
(b))
— Owner must obtain a review which must be conducted by an independent third
party with no financial interest.
— A program established under this chapter must require for each proposed qualified
project a review of water or energy baseline conditions and the projected water or
energy savings to establish the projected water or energy savings.
— After a qualified project is completed, the local government shall obtain
verification that the qualified project was properly completed and is operating as
intended.
STATUS OF ISSUE: The city has been approached by HWH requesting that the program be
expanded beyond the initial pilot project.
BUDGET: The costs of a PACE program are supposed to be borne by the owner, who is
participating in the program voluntarily. The city will have to determine how best to pass on any
staffing or other costs, but the program should be budget neutral.
OPTIONS:
1. Direct staff to expand the PACE program beyond the initial pilot project to include any
qualifying projects within the city.
2. Decline to expand the PACE program.
RECOMMENDATION: Direct staff as to one of the options above.