50 ILCS 50/ Property Assessed Clean Energy Act

(50 ILCS 50/1)

Sec. 1. Short title. This Act may be cited as the Property Assessed Clean Energy Act.

(Source: P.A. 100-77, eff. 8-11-17.)

(50 ILCS 50/5)

Sec. 5. Definitions. As used in this Act:

"Alternative energy improvement" means any fixture, product, system, equipment, device, material, or interacting group thereof intended to charge a motor vehicle that is fully or partially powered by electricity, including, but not limited to, electrical wiring, outlets, or charging stations.

"Assessment" means a special assessment imposed by a governmental unit pursuant to an assessment contract.

"Assessment contract" means a voluntary written contract between the applicable governmental unit (or a permitted assignee) and record owner governing the terms and conditions of financing and assessment under a program.

"Authority" means the Illinois Finance Authority.

"Capital provider" means any credit union, federally insured depository institution, insurance company, trust company, or other entity approved by a governmental unit or its program administrator or program administrators that finances or refinances an energy project by purchasing PACE bonds issued by the governmental unit or the Authority for that purpose. "Capital provider" also means any special purpose vehicle that is directly or indirectly wholly owned by one or more of the entities listed in this definition or any bond underwriter.

"Energy efficiency improvement" means any fixture, product, system, equipment, device, material, or interacting group thereof intended to decrease energy consumption or enable a more efficient use of electricity, natural gas, propane, or other forms of energy on property, including, but not limited to, all of the following:

(1) insulation in walls, roofs, floors, foundations, or heating and cooling distribution systems;

(2) energy efficient windows and doors, multi-glazed windows and doors, heat-absorbing or heat-reflective glazed and coated window and door systems, and additional glazing, reductions in glass area, and other window and door systems that reduce energy consumption;

(3) automated energy or water control systems;

(4) high efficiency heating, ventilating, or air-conditioning and distribution systems;

(5) caulking, weather-stripping, and air sealing;

(6) lighting fixtures;

(7) energy controls or recovery systems;

(8) day lighting systems;

(8.1) any energy efficiency project, as defined in Section 825-65 of the Illinois Finance Authority Act; and

(9) any other fixture, product, system, equipment, device, or material intended as a utility or other cost-savings measure as approved by the governmental unit.

"Energy project" means the acquisition, construction, installation, or modification of an alternative energy improvement, energy efficiency improvement, renewable energy improvement, resiliency improvement, or water use improvement affixed to real property (including new construction).

"Governing body" means the legislative body, council, board, commission, trustees, or any other body by whatever name it is known having charge of the corporate affairs of a governmental unit.

"Governmental unit" means any county or municipality.

"PACE area" means an area within the jurisdictional boundaries of a governmental unit created by an ordinance or resolution of the governmental unit to provide financing for energy projects under a property assessed clean energy program. A governmental unit may create more than one PACE area under the program and PACE areas may be separate, overlapping, or coterminous.

"PACE bond" means any bond, note, or other evidence of indebtedness representing an obligation to pay money, including refunding bonds, issued under or in accordance with Section 35.

"Permitted assignee" means (i) the Authority, (ii) any bond trustee, (iii) any capital provider, or (iv) any other assignee of a governmental unit designated by the governmental unit in an assessment contract.

"Program administrator" means a for-profit entity or a not-for-profit entity that will administer a program on behalf of or at the discretion of the governmental unit.

"Property" means any privately-owned commercial, industrial, non-residential agricultural, or multi-family (of 5 or more units) real property or any real property owned by a not-for-profit located within the governmental unit, but does not include any real property owned by a governmental unit.

"Property assessed clean energy program" or "program" means the program of a governmental unit to provide financing or refinancing for energy projects within PACE areas it has created under Section 10 and Section 15.

"Record owner" means the titleholder or owner of the beneficial interest in real property.

"Renewable energy improvement" means any fixture, product, system, equipment, device, material, or interacting group thereof on the property of the record owner that uses one or more renewable energy resources to generate electricity, including any renewable energy project, as defined in Section 825-65 of the Illinois Finance Authority Act.

"Renewable energy resource" includes energy and its associated renewable energy credit or renewable energy credits from wind energy, solar thermal energy, geothermal energy, photovoltaic cells and panels, biodiesel, anaerobic digestion, and hydropower that does not involve new construction or significant expansion of hydropower dams. For purposes of this Act, landfill gas produced in the State is considered a renewable energy resource. The term "renewable energy resources" does not include the incineration or burning of any solid material.

"Resiliency improvement" means any fixture, product, system, equipment, device, material, or interacting group thereof intended to increase resilience or improve the durability of infrastructure, including but not limited to, seismic retrofits, flood mitigation, fire suppression, wind resistance, energy storage, microgrids, and backup power generation.

"Warehouse fund" means any fund or account established by a governmental unit, the Authority, or a capital provider.

"Water use improvement" means any resiliency improvement, fixture, product, system, equipment, device, material, or interacting group thereof intended to conserve water resources or improve water quality on property, including, but not limited to, all of the following:

(1) water management or efficiency systems;

(2) water recycling;

(3) capturing, reusing, managing, and treating stormwater;

(4) bioretention, trees, green roofs, porous pavements, or cisterns for maintaining or restoring natural hydrology;

(5) replacing or otherwise abating or mitigating the use of lead pipes in the supply of water; and

(6) any other resiliency improvement, fixture, product, system, equipment, device, or material intended as a utility or other cost-savings measure as approved by the governmental unit.

(Source: P.A. 100-77, eff. 8-11-17; 100-980, eff. 1-1-19; 101-81, eff. 7-12-19; 101-169, eff. 7-29-19.)

(50 ILCS 50/10)

Sec. 10. Property assessed clean energy program; creation.

(a) Pursuant to the procedures provided in Section 15, a governmental unit may establish a property assessed clean energy program and, from time to time, create a PACE area or PACE areas under the program.

(b) Under a program, the governmental unit may enter into an assessment contract with the record owner of property within a PACE area to finance or refinance one or more energy projects on the property. The assessment contract shall provide for the repayment of all or a portion of the cost of an energy project through assessments upon the property benefited. The amount of the financing or refinancing may include any and all of the following: the cost of materials and labor necessary for acquisition, construction, installation, or modification of the energy project, permit fees, inspection fees, application and administrative fees, financing fees, reserves, capitalized interest, costs of billing the assessment, and all other fees, costs, and expenses that may be incurred by the record owner pursuant to the acquisition, construction, installation, or modification of the energy project, and the costs of issuance of PACE bonds on a specific or pro rata basis, as determined by the governmental unit and may also include a prepayment premium.

(b-5) A governmental unit may sell or assign, for consideration, any and all assessment contracts; the permitted assignee of the assessment contract shall have and possess the delegable powers and rights at law or in equity as the applicable governmental unit would have if the assessment contract had not been assigned with regard to (i) the precedence and priority of liens evidenced by the assessment contract, (ii) the accrual of interest, and (iii) the fees and expenses of collection. The permitted assignee shall have the right to enforce such liens pursuant to subsection (a) of Section 30. Costs and reasonable attorney's fees incurred by the permitted assignee as a result of any foreclosure action or other legal proceeding brought pursuant to this Act and directly related to the proceeding shall be assessed in any such proceeding against each record owner subject to the proceedings. A governmental unit or the Authority may sell or assign assessment contracts without competitive bidding or the solicitation of requests for proposals or requests for qualifications.

(c) A program shall be administered by either one or more than one program administrators or the governmental unit, as determined by the governing body.

(Source: P.A. 100-77, eff. 8-11-17; 100-980, eff. 1-1-19; 101-169, eff. 7-29-19.)

(50 ILCS 50/15)

Sec. 15. Program established.

(a) To establish a property assessed clean energy program, the governing body shall adopt a resolution or ordinance that includes all of the following:

(1) a finding that the financing or refinancing of energy projects is a valid public purpose;

(2) a statement of intent to facilitate access to capital (which may be from one or more program administrators or as otherwise permitted by this Act) to provide funds for energy projects, which will be repaid by assessments on the property benefited with the agreement of the record owners;

(3) a description of the proposed arrangements for financing the program through the issuance of PACE bonds under or in accordance with Section 35, which PACE bonds may be purchased by one or more capital providers;

(4) the types of energy projects that may be financed or refinanced;

(5) a description of the territory within the PACE area;

(6) a transcript of public comments if any discretionary public hearing on the proposed program was previously held by the governmental unit prior to the consideration of the resolution or ordinance establishing the program; and

(7) the report on the proposed program as described in Section 20; for this purpose, the resolution or ordinance may incorporate the report or an amended version thereof by reference and shall be available for public inspection.

(b) A property assessed clean energy program may be amended in accordance with the resolution or ordinance establishing the program.

(Source: P.A. 101-169, eff. 7-29-19; 102-558, eff. 8-20-21.)

(50 ILCS 50/20)

Sec. 20. Program report. The report on the proposed program required under Section 15 shall include all of the following:

(1) a form of assessment contract between the governmental unit and record owner governing the terms and conditions of financing and assessment under the program;

(2) identification of one or more officials authorized to enter into an assessment contract on behalf of the governmental unit;

(3) (blank);

(4) an application process and eligibility requirements for financing or refinancing energy projects under the program;

(5) a method for determining interest rates on amounts financed or refinanced under assessment contracts, repayment periods, and the maximum amount of an assessment, if any;

(6) an explanation of the process for billing and collecting assessments;

(7) a plan to finance the program pursuant to the issuance of PACE bonds under or in accordance with Section 35;

(8) information regarding all of the following, to the extent known, or procedures to determine the following in the future:

(A) any revenue source or reserve fund or funds to be used as security for PACE bonds described in paragraph (7); and

(B) any application, administration, or other program fees to be charged to record owners participating in the program that will be used to finance and reimburse all or a portion of costs incurred by the governmental unit as a result of its program;

(9) a requirement that the term of an assessment not exceed the useful life of the energy project financed or refinanced under an assessment contract; provided that an assessment contract financing or refinancing multiple energy projects with varying lengths of useful life may have a term that is calculated in accordance with the principles established by the program report;

(10) a requirement for an appropriate ratio of the amount of the assessment to the greater of any of the following:

(A) the value of the property as determined by the office of the county assessor; or

(B) the value of the property as determined by an appraisal conducted by a licensed appraiser;

(11) a requirement that the record owner of property subject to a mortgage obtain written consent from the mortgage holder before participating in the program;

(12) provisions for marketing and participant education;

(13) (blank); and

(14) quality assurance and antifraud measures.

(Source: P.A. 101-169, eff. 7-29-19; 102-558, eff. 8-20-21.)

(50 ILCS 50/25)

Sec. 25. Assessment contracts with record owners of property.

(a) A record owner of property within the PACE area may apply to the governmental unit or its program administrator or program administrators to finance or refinance an energy project under the governmental unit's program.

(b) A governmental unit may impose an assessment under a property assessed clean energy program only pursuant to the terms of a recorded assessment contract with the record owner of the property to be assessed.

(c) Before entering into an assessment contract with a record owner under a program, the governmental unit or its program administrator or program administrators shall verify that the applicable property is entirely within the PACE area and receive evidence of all of the following:

(1) (blank);

(2) that there are no delinquent taxes, special assessments, or water or sewer charges on the property;

(3) that there are no delinquent assessments on the property under a property assessed clean energy program;

(4) whether there are any involuntary liens on the property, including, but not limited to, construction or mechanics liens, lis pendens or judgments against the record owner, environmental proceedings, or eminent domain proceedings;

(5) that no notices of default or other evidence of property-based debt delinquency have been recorded and not cured;

(6) that the record owner is current on all mortgage debt on the property, the record owner has not filed for bankruptcy in the last 2 years, and the property is not an asset in a current bankruptcy proceeding;

(7) that all work requiring a license under any applicable law to acquire, construct, install, or modify an energy project shall be performed by a licensed contractor that has agreed to adhere to a set of terms and conditions through a process established by the governmental unit or its program administrator or program administrators;

(8) that the contractor or contractors to be used have signed a written acknowledgement that the governmental unit or its program administrator or program administrators will not authorize final payment to the contractor or contractors until the governmental unit has received written confirmation from the record owner that the energy project was properly acquired, constructed, installed, or modified and is operating as intended; provided, however, that the contractor or contractors retain all legal rights and remedies in the event there is a disagreement with the record owner;

(9) that the aggregate amount financed or refinanced under one or more assessment contracts does not exceed 25% in relation to the greater of any of the following:

(A) the value of the property as determined by the office of the county assessor; or

(B) the value of the property as determined by an appraisal conducted by a licensed appraiser; and

(10) that an evaluation of the existing water or energy use and a modeling of expected monetary savings have been conducted for any proposed energy efficiency improvement, renewable energy improvement, or water use improvement, unless the water use improvement is undertaken to improve water quality.

(d) Before entering into an assessment contract with the governmental unit, the record owner shall provide to the mortgage holders of any existing mortgages encumbering or otherwise secured by the property a notice of the record owner's intent to enter into an assessment contract with the governmental unit, together with the maximum principal amount to be financed or refinanced and the maximum annual assessment necessary to repay that amount, along with an additional request that the mortgage holders of any existing mortgages consent to the record owner subjecting the property to the program. The governmental unit shall be provided with a copy or other proof of those notices and the written consent of the mortgage holder for the record owner to enter into the assessment contract which acknowledges that (i) the existing mortgage or mortgages for which the consent was received will be subordinate to the assessment contract and the lien created thereby and (ii) the governmental unit or its permitted assignee can foreclose the property if the assessments are not paid.

(e) (Blank).

(f) If the record owner has signed a certification that the governmental unit has complied with the provisions of this Section, then this shall be conclusive evidence as to compliance with these provisions, but shall not relieve any contractor or the governmental unit from any potential liability.

(g) (Blank).

(h) The imposition of any assessment pursuant to this Act shall be exempt from any other statutory procedures or requirements that condition the imposition of special assessments or taxes against property, except as specifically set forth in this Act.

(Source: P.A. 100-77, eff. 8-11-17; 100-980, eff. 1-1-19; 101-169, eff. 7-29-19.)

(50 ILCS 50/30)

Sec. 30. Assessments constitute a lien; billing and collecting.

(a) An assessment contract shall be recorded with the county in which the PACE area is located. An assessment imposed under a property assessed clean energy program pursuant to an assessment contract, including any interest on the assessment and any penalty, shall, upon recording of the assessment contract in the county in which the PACE area is located, constitute a lien against the property on which the assessment is imposed until the assessment, including any interest or penalty, is paid in full. The lien of the assessment contract shall run with the property until the assessment is paid in full and a satisfaction or release for the same has been recorded by the governmental unit or its program administrator or program administrators and shall have the same lien priority and status as other property tax and special assessment liens as provided in the Property Tax Code. The governmental unit (or any permitted assignee) shall have all rights and remedies in the case of default or delinquency in the payment of an assessment as it does with respect to delinquent property taxes and other delinquent special assessments as set forth in Article 9 of the Illinois Municipal Code, including the lien, sale, and foreclosure remedies described in that Article. When the assessment, including any interest and penalty, is paid in full, the lien shall be removed and released from the property.

(a-5) The assessment shall be imposed by the governmental unit against each lot, block, tract, and parcel of land set forth in the assessment contract.

(b) (Blank).

(b-5) Assessments created under this Act may be billed and collected as follows:

(1) A county which has established a program may include assessments in the regular property tax bills of the county. The county collector of the county in which a PACE area is located may bill and collect assessments with the regular property tax bills of the county if requested by a municipality within its jurisdiction; no municipality is required to make such a request of its county collector. If the county collector agrees to bill and collect assessments with the regular property tax bills of the county, then the applicable assessment contract shall be filed with the county collector and the annual amount due as set forth in an assessment contract shall become due in installments at the times property taxes shall become due in accordance with each regular property tax bill payable during the year in which such assessment comes due;

(2) If the county collector does not agree to bill and collect assessments with the regular property tax bills of the county or the governmental unit in which the PACE area is located declines to request the county collector to do so, then the governmental unit shall bill and collect the assessments, either directly or as permitted in paragraph (3) of this subsection, and the annual amount due as set forth in an assessment contract shall become due in installments on or about the times property taxes would otherwise become due in accordance with each regular property tax bill payable during the year in which such assessment comes due; or

(3) If a governmental unit is billing and collecting assessments pursuant to paragraph (2) of this subsection, assessment installments may be billed and collected by the governmental unit's program administrator or program administrators or another third party.

The assessment installments for assessments billed as provided for under any paragraph of this subsection shall be payable at the times and in the manner as set forth in the applicable bill.

(c) If a governmental unit, a program administrator, or another third party is billing and collecting assessments pursuant to subsection (b-5), and the applicable assessment becomes delinquent during any year, the applicable collector shall, on or before the date in such year required by the county in which the PACE area is located, make a report in writing to the general office of the county in which the applicable property subject to the assessment is situated and authorized by the general revenue laws of this State to apply for judgment and sell lands for taxes due the county and the State, of the assessments or installments thereof the applicable collector has billed for and not received as required under the applicable bill, including any interest or penalties that may be due as set forth in the applicable assessment contract. This report shall be certified by the applicable collector and shall include statements that (i) the report contains true and correct list of delinquent assessments that the collector has not received as required by the applicable bill and (ii) an itemization of the amount of the delinquent assessment, including interest and penalties, if applicable. The report of the applicable collector, when so made, shall be prima facie evidence that all requirements of the law in relation to making the report have been complied with and that the assessments or the matured installments thereof, and the interest thereon, and the interest accrued on installments not yet matured, mentioned in the report, are due and unpaid. Upon proper filing of such report, at the direction of the governmental unit or its permitted assignee, the county collector shall enforce the collection of the assessments in the manner provided by law.

(d) Payment received by mail and postmarked on or before the required due date is not delinquent. From and after the due date of any installment of an assessment, an additional rate of interest of 1 1/2% per month may be imposed with respect to the delinquent amount of such installment, which shall be payable to the applicable governmental unit or other permitted assignee as set forth in the applicable bill.

(Source: P.A. 100-77, eff. 8-11-17; 100-980, eff. 1-1-19; 101-81, eff. 7-12-19; 101-169, eff. 7-29-19.)

(50 ILCS 50/35)

Sec. 35. Issuance of PACE bonds.

(a) Except as provided for in subsection (k), a governmental unit shall issue PACE bonds under this Act, or the Authority shall issue PACE bonds in accordance with this Act and pursuant to subsection (d) of Section 825-65 of the Illinois Finance Authority Act, in either case to finance or refinance energy projects under a property assessed clean energy program.

(b) PACE bonds issued under this Act or in accordance with this Act and pursuant to subsection (d) of Section 825-65 of the Illinois Finance Authority Act:

(1) shall not be general obligations of the governmental unit or the Authority, as applicable, but shall be secured by the following:

(A) payments under one or more assessment contracts on benefited property or properties within the PACE area or PACE areas specified;

(B) if applicable, municipal bond insurance, letters of credit, or public or private guarantees or sureties; and

(C) if applicable, revenue sources or reserves established by the governmental unit or the Authority from bond proceeds or other lawfully available funds;

(2) may be secured on a parity basis with PACE bonds of another series or subseries issued by the governmental unit or the Authority pursuant to the terms of a master indenture entered into as authorized by an ordinance or resolution adopted by the governing body or the Authority, as applicable;

(3) may bear interest at any rate or rates not to exceed such rate or rates as the governing body or the Authority shall determine by ordinance or resolution;

(4) may pay interest upon the date or dates described in such PACE bonds;

(5) shall have a maturity no more than 40 years from the date of issuance;

(6) may be subject to redemption with or without premium upon such terms and provisions as may be provided under the terms of a master indenture entered into as authorized by an ordinance or resolution adopted by the governing body or the Authority, as applicable, including, without limitation, terms as to the order of redemption (numerical, pro rata, by series, subseries, or otherwise) and as to the timing thereof;

(7) shall be negotiable instruments under Illinois law and be subject to the Registered Bond Act; and

(8) may be payable either serially or at term, or any combination thereof, in such order of preference, priority, lien position, or rank (including, without limitation, numerical, pro rata, by series, subseries, or otherwise) as the governing body or Authority may provide.

(c) A pledge of assessments, funds, or contractual rights made by a governmental unit or the Authority in connection with the issuance of PACE bonds under this Act or in accordance with this Act and pursuant to Section 825-65 of the Illinois Finance Authority Act constitutes a statutory lien on the assessments, funds, or contractual rights so pledged in favor of the person or persons to whom the pledge is given, without further action taken by a governmental unit or the Authority, as applicable. The statutory lien is valid and binding against all other persons, with or without notice.

(d) (Blank).

(d-5) The State pledges to and agrees with the holders of any PACE bonds issued under this Act or in accordance with the Act and pursuant to Section 825-65 of the Illinois Finance Authority Act that the State will not limit or alter the rights and powers vested in governmental units by this Act or in the Authority in accordance with this Act and pursuant to Section 825-65 of the Illinois Finance Authority Act so as to impair the terms of any contract made by a governmental unit or by the Authority with those bondholders or in any way to impair the rights or remedies of those bondholders until the PACE bonds, together with the interest thereon, and all costs and expenses in connection with any actions or proceedings by or on behalf of those bondholders are fully met and discharged.

(e) (Blank).

(f) PACE bonds issued under this Act or in accordance with this Act and pursuant to Section 825-65 of the Illinois Finance Authority Act further essential public and governmental purposes, including, but not limited to, reduced energy costs and greenhouse gas emissions, enhanced water quality and conservation, economic stimulation and development, improved property resiliency and valuation, and increased employment.

(g) A capital provider can assign its rights to purchase PACE bonds issued by the governmental unit or the Authority to a designated transferee.

(h) A law firm shall be retained to give a written bond opinion in connection with any PACE bond issued under this Act or in accordance with this Act and pursuant to Section 825-65 of the Illinois Finance Authority Act in form and substance as requested by the issuer of the PACE bonds or the capital provider.

(i) PACE bonds issued by the Authority in accordance with this Act and pursuant to subsection (d) of Section 825-65 of the Illinois Finance Authority Act shall not be entitled to the benefits of Section 825-75 of the Illinois Finance Authority Act.

(j) PACE bonds issued by a governmental unit may otherwise have any attributes permitted to bonds under the Local Government Debt Reform Act, as the governing body may provide.

(k) Interim financing prior to the issuance of PACE bonds authorized by this Section may be provided only by a warehouse fund, except that warehouse funds established by capital providers shall only interim finance energy projects secured by one or more assessment contracts for 36 months or less from the date of recording of the applicable assessment contract.

(Source: P.A. 100-77, eff. 8-11-17; 100-980, eff. 1-1-19; 101-169, eff. 7-29-19.)

(50 ILCS 50/40)

Sec. 40. (Repealed).

(Source: P.A. 100-77, eff. 8-11-17. Repealed by P.A. 101-169, eff. 7-29-19.)

(50 ILCS 50/42)

Sec. 42. Supplemental powers.

(a) The provisions of this Act are intended to be supplemental and in addition to all other powers or authorities granted to any governmental unit, shall be construed liberally, and shall not be construed as a limitation of any power or authority otherwise granted.

(b) A governmental unit may use the provisions of this Act by referencing this Act in the resolution or ordinance described in Section 15.

(Source: P.A. 101-169, eff. 7-29-19.)

(50 ILCS 50/45)

Sec. 45. Recital. PACE bonds that are issued under this Act or in accordance with this Act and pursuant to Section 825-65 of the Illinois Finance Authority Act may contain a recital to that effect and any such recital shall be conclusive as against the issuer thereof and any other person as to the validity of the PACE bonds and as to their compliance with the provisions of this Act and, as applicable, the provisions of Section 825-65 of the Illinois Finance Authority Act.

(Source: P.A. 101-169, eff. 7-29-19.)

(50 ILCS 50/50)

Sec. 50. Validation. All actions taken by the Authority or any governmental unit under this Act prior to the effective date of this amendatory Act of the 101st General Assembly, including, without limitation, creation of a property assessed clean energy program under Section 10 and Section 15, preparation and approval of a report on the proposed program under Section 20, entering into assessment contracts under Section 25, and issuance of bonds, notes, and other evidences of indebtedness under Section 35 shall be unaffected by the enactment of this amendatory Act of the 101st General Assembly and shall continue to be legal, valid, and in full force and effect, notwithstanding any lack of compliance with the requirements of this amendatory Act of the 101st General Assembly.

(Source: P.A. 101-169, eff. 7-29-19.)

(50 ILCS 50/99)

Sec. 99. Effective date. This Act takes effect upon becoming law.

(Source: P.A. 100-77, eff. 8-11-17.)