§ 36-308. Additional provisions.

(a)

Every borrower, on behalf of itself and any affiliated entities (whether in existence at the time of the C-PACE application or created thereafter) and any of its individual shareholders, principals, managers or other associated individuals, shall (i) waive the right to bid, either directly or indirectly, on the property at any auction held in the course of foreclosure for delinquent real estate taxes or for delinquent C-PACE payments, and (b) waive the right to occupy, possess, or use, either directly or indirectly, any property for a period of five years after the date of the foreclosure auction.

(b)

The following borrower waivers shall be included in every C-PACE agreement and shall be a burden that runs with the land intended to bind successors or assigns in title while any C-PACE loan remains outstanding:

(1)

Borrower hereby waives all defenses, affirmative or otherwise, to the foreclosure action related to any collection suit brought for the nonpayment of any C-PACE loan. This waiver shall apply to any litigation action initiated under the laws of Virginia or any administrative collection action afforded to the city treasurer or its duly appointed collection agent;

(2)

Borrower hereby waives all defenses to the imposition of personal liability for corporate officers as permitted under Section 58.1-3965(F) of the State Code and the collection thereof as stated in subparagraph (i) above; and,

(3)

Borrower hereby agrees to provide a confession of judgment pursuant to Section 8.01-432, et seq. of State Code, if requested by the city or capital provider, which confession of judgment provision shall be included in any note related to the C-PACE loan.

(c)

The provisions of this chapter are severable. If a court of competent jurisdiction determines that a word, phrase, clause, sentence, paragraph, subsection, section, or other provision is invalid or that the application of any part of this chapter or provision to any person or circumstance is invalid, the remaining provisions of this chapter shall not be affected and shall remain in full force and effect.

(d)

A draft assessment and financing agreement (i.e., the contract specifying the terms and conditions of the city's C-PACE loan agreements) is adopted as an appendix to this article ("draft agreement") [on file for reference in the offices of the city]. The parties to any assessment and financing agreement shall be borrower, capital provider, and the city. Each assessment and financing agreement shall be in substantially the form established by the draft agreement, with such additions, deletions or alterations as permitted by this article. Program manager is authorized to modify the draft agreement in program manager's reasonable discretion, provided that such modifications are approved by the city attorney. The city manager is authorized to enter into assessment and financing agreements on behalf of the city. The city manager may not execute any assessment and financing agreement unless the underwriting requirements and the conditions for the priority status of the C-PACE lien are met.

(e)

The program guidelines shall contain the following provisions:

These program guidelines ("guidelines') have been prepared for the purpose of providing a more detailed description of the requirements, rules, procedures, and fees applicable to the City of Lynchburg Commercial Property Assessed Clean Energy (C-PACE) Financing Program ("program"). These guidelines are subject to chapter 32.3, Code of the City of Lynchburg (1981), as amended ("city ordinance") in all respects including, without limitation, the provisions of the City Ordinance governing the amendment of these guidelines. If there is a conflict between these guidelines and the city ordinance, then the city ordinance shall govern and control.

These guidelines are for reference only and do not create any legal rights in favor of any borrower, capital provider, contractor, or any other person, and these guidelines do not impose any legal duty or obligation on the City of Lynchburg, Virginia.

( Ord. No. O-19-047 , § 1, 12-10-19)

( Ord. No. O-19-047 , § 1, 12-10-19)