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AN ORDINANCE OPTING INTO THE GARDEN STATE C-PACE PROGRAM TO FACILITATE THE FINANCING OF C-PACE PROJECTS
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WHEREAS, the City of Newark has the authority under N.J. Stat. Ann. § 34:1B-374 et seq. and N.J. Stat. Ann. § 40:48-2 to adopt ordinances necessary to protect the public health, safety, and welfare, including opting into the Garden State C-PACE Program; and
WHEREAS, facilitating the direct financing of clean energy and resiliency-related improvements (“C-PACE Projects”) on commercial and certain other types of property will enable the City of Newark (“Municipality”) in the County of Essex (“County”) to contribute toward the goals of community sustainability and the reduction of greenhouse gas, carbon emissions, and energy consumption, while also providing a valuable service to the citizens of this community that will create jobs and strengthen the ratable base; and
WHEREAS, the Legislature and the Governor of the State of New Jersey (the “State”) have declared it to be the public policy of this State to invest in clean energy and resiliency-related improvements to conserve resources and allay the impact of natural disasters; and
WHEREAS, the Legislature and the Governor of the State have authorized the establishment of the Garden State C-PACE Program, pursuant to L. 2021, c. 201 (N.J. Stat. Ann. § 34:1B-374 et seq.) (the “Act”); and
WHEREAS, pursuant to the Act, the New Jersey Economic Development Authority (the “Authority”) has issued Guidelines for the Garden State C-PACE Program; and
WHEREAS, any capitalized terms used in this Ordinance if not defined herein shall have their meaning as set forth in the Program Guidelines; and
WHEREAS, pursuant to the Act and the Program Guidelines, municipalities may “opt in” to the Garden State C-PACE Program to facilitate the Direct Financing of C-PACE Projects; and
WHEREAS, in order to participate in the Garden State C-PACE Program, a municipality must adopt an opt-in ordinance authorizing it to enter into a Garden State Program Agreement with the Authority; and
WHEREAS, in compliance with the Act and the Program Guidelines, and in order to facilitate Direct Financing pursuant to the Garden State C-PACE Program, this Ordinance authorizes the creation of C-PACE Assessments to be imposed on Eligible Properties located within the Municipality, at the request of their Eligible Owners; and
WHEREAS, pursuant to the Act and the Program Guidelines, a C-PACE Assessment shall be considered a single, continuous first lien, paramount to all prior or subsequent alienations and descents or encumbrances thereon, except subsequent taxes, charges or assessments, and such lien shall not be extinguished by the Municipality’s in rem foreclosure proceedings; and
WHEREAS, pursuant to the Act and the Program Guidelines, a C-PACE Assessment shall be treated as a municipal lien rather than a contractual lien for all purposes of law; and
WHEREAS, a C-PACE Assessment shall be entered into voluntarily by an Eligible Owner to facilitate the Direct Financing of a C-PACE Project with a loan from a Qualified Capital Provider, the repayment of which is made by way of the C-PACE Assessment on the Eligible Property on which the C-PACE Project is or will be located; and
WHEREAS, opting-in to the Garden State C-PACE Program is in the best interests of the health, safety, and welfare of the Municipality and will generate more economic opportunities for citizens, property owners, and commercial businesses alike; and
WHEREAS, the Municipality, pursuant to the Act and the Garden State C-PACE Program Guidelines and Supplemental Guidelines, as may be amended from time to time (collectively the “Program Guidelines”), does hereby declare its commitment to opt in and participate in the Garden State C-PACE Program and to enter into a Garden State Program Agreement with the Authority; and
WHEREAS, the Municipality further declares that participating in the Garden State C-PACE Program is a valid public purpose; and
WHEREAS, if and to the extent there is any inconsistency between this Ordinance and the Act or Program Guidelines, this Ordinance shall be construed consistently with the provisions and requirements of the Act and the Program Guidelines and in case of conflict the Act and the Program Guidelines shall control.
NOW, THEREFORE, BE IT ORDAINED BY THE MUNICIPAL COUNCIL OF THE CITY OF NEWARK, NEW JERSEY, THAT:
Section 1. Authorization.
Pursuant to the Act, this Ordinance constitutes the Municipality’s “opt-in” ordinance that authorizes participation in the Garden State C-PACE Program, which shall be available to Eligible Properties situated within the Municipality, and authorizes execution of a Garden State Program Agreement with the Authority.
Section 2. Implementation.
The Municipality shall accept C-PACE Projects in accordance with the Garden State Program Agreement to be entered into with the Authority. The Municipality shall levy, bill, collect, remit, and enforce C-PACE Assessments with respect to participating Eligible Properties located within the Municipality.
Section 3. Designation of Authorized Officers.
The Mayor and/ or Business Administrator, municipal clerk, or their written designees are designated as “Authorized Officers” for purposes of executing and delivering the various agreements and documents authorized by this Ordinance.
Section 4. Municipal Liaison.
The Mayor and/ or Business Administrator shall designate a Municipal C-PACE Liaison to serve as the Municipality’s liaison to the Garden State C-PACE Program, with all duties and obligations described in the Program Guidelines and Garden State Program Agreement.
Section 5. Collection and Enforcement.
C-PACE Assessments shall be collected and enforced in the same manner as unpaid property taxes, including the imposition of statutory interest and penalties. Such assessments shall constitute a continuous first lien on the property, paramount to all prior or subsequent encumbrances except municipal taxes, charges, or assessments.
Section 6. Revenue Treatment.
C-PACE Assessments shall not be included in the Municipality’s general funds and shall be assigned directly to the Qualified Capital Provider in accordance with the Program Guidelines.
Section 7. Incorporation of State Ordinance Template.
The model ordinance template issued by the State of New Jersey, attached hereto as Exhibit A, is hereby incorporated into this Ordinance by reference as if set forth in full herein. In the event of any conflict between this Ordinance and the provisions of the template, the controlling provisions shall be those required under State law and program guidelines.
Section 8. Repealer.
All ordinances and parts of ordinances inconsistent with this Ordinance are hereby repealed to the extent of such inconsistency.
Section 9. Severability.
If any Section, paragraph, subparagraph, clause, or provision of this Ordinance shall be adjudged invalid, such adjudication shall apply only to the specific Section, paragraph, subparagraph, clause, or provision so adjudged, and the remainder shall be deemed valid and effective.
Section 10. Effective Date.
This Ordinance shall take effect upon final adoption and publication pursuant to law.
STATEMENT
This Ordinance opts the Municipality into the Garden State C-PACE Program, pursuant to P.L. 2021, c. 201 (N.J.S.A. 34:1B-374 et seq.), thereby authorizing participation in the financing of clean energy and resiliency projects. The Ordinance permits the Municipality to enter into a Program Agreement with the New Jersey Economic Development Authority, levy and enforce C-PACE Assessments on Eligible Properties, and designate municipal officials to administer the program in accordance with State law and Program Guidelines.