title
RESOLUTION DETERMINING THE FORM AND OTHER DETAILS OF NOT TO
EXCEED $10,500,000 PRINCIPAL AMOUNT OF ENERGY SAVINGS OBLIGATION
REFUNDING BONDS OF THE COUNTY OF PASSAIC, NEW JERSEY, ISSUED FOR
THE BENEFIT OF THE PASSAIC COUNTY COMMUNITY COLLEGE, AND
PROVIDING FOR THE SALE AND THE DELIVERY OF SUCH BONDS
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WHEREAS, the Passaic County Community College (the “College”) undertook an investigation into the implementation of an energy savings improvement program pursuant to N.J.S.A. 18A:65A-1 and arranged for energy audits of the College facilities to be conducted pursuant to the Local Government Energy Audit Program, and such audits were completed and delivered to the College; and
WHEREAS, the College determined to seek the assistance of an energy services company (“ESCO”) to assist the College with the development and implementation of an energy savings plan; and
WHEREAS, the College hired Schneider Electric Buildings Americas, Inc. (“Schneider Electric”) as its ESCO; and
WHEREAS, Schneider Electric has worked with representatives of the College to develop an energy savings plan (as may be amended and supplemented from time to time, the “Energy Savings Plan”) and has presented the proposed Energy Savings Plan to the College; and
WHEREAS, the College hired Concord Engineering Group, Inc. (“Concord”), a qualified independent third party (the “Verification Agent”), to verify that the projected energy savings to be realized from the energy savings improvement program have been calculated as required by law, the Verification Agent has issued its report to this effect, the report and Energy Savings Plan have been submitted to the Board of Public Utilities Office of Clean Energy (the “BPU”) for review, and the BPU has approved the Energy Savings Plan on December 29, 2023; and
WHEREAS, after reviewing the Energy Savings Plan, the College has determined that the energy savings generated from reduced energy use from the energy savings improvement program will be sufficient to cover the cost of the program's energy conservation measures set forth in the Energy Savings Plan and, therefore, has approved the Energy Savings Plan pursuant to N.J.S.A. 18A:65A-1 and has determined to finance the energy savings improvement program, in part, through the issuance of energy savings obligations authorized as refunding bonds pursuant to N.J.S.A. 18A:65A-1(c)(3); and
WHEREAS, the Board of Trustees of the College (the “Board of Trustees”), has determined, by resolution duly adopted on February 26, 2024, that it is necessary to raise funds the amount of $21,315,000 and to sell energy savings obligation refunding bonds to raise money in an amount not to exceed $10,500,000 for the energy conservation improvements described in the College’s approved Energy Savings Plan and to utilize approximately $6,000,000 of Chapter 12 funds previously appropriated for energy conservation measures (the “Chapter 12 Funds”) and $4,815,000 available as a capital contribution from the College (the “College Capital Funds”); and
WHEREAS, the Board of School Estimate of the College has fixed and determined, by resolution duly adopted on February 27, 2024, that it is necessary to raise funds in the amount of $21,315,000 for the energy conservation improvements described in the College’s approved Energy Savings Plan which shall be funded by the Chapter 12 Funds, the College Capital Funds and energy savings obligation refunding bonds in an amount not to exceed $10,500,000; and
WHEREAS, the Board of School Estimate has prepared and delivered a certificate of such amount necessary for such purposes or improvements to the Board of Trustees and the Board of County Commissioners of the County of Passaic, New Jersey (the “County”); and
WHEREAS, on April 9, 2024, the County adopted Bond Ordinance 2024-06, providing for the energy conservation improvements described in the College’s approved Energy Savings Plan and authorizing the issuance of not to exceed $10,500,000 Energy Savings Obligation Refunding Bonds to provide for a portion of the cost of such improvements (the “Refunding Bond Ordinance”); and
WHEREAS, on April 10, 2024, the Local Finance Board in the Division of Local Government Services, Department of Community Affairs (the “Local Finance Board”), approved the County’s adoption of the Refunding Bond Ordinance pursuant to N.J.S.A. 18A:65A-1(c)(3) and N.J.S.A. 40A:2-52 et seq.; and
WHEREAS, pursuant to the Refunding Bond Ordinance and this resolution, the County will issue Energy Savings Obligation Refunding Bonds in an aggregate amount not to exceed $10,500,000, the proceeds of which, together with the Chapter 12 Funds and the College Capital Funds, will be used by the College to provide for the cost of the energy conservation improvements described in the College’s approved Energy Savings Plan; and
WHEREAS, pursuant to an agreement between the County and the College, the County will provide for the debt service on such Bonds from the amount the County otherwise provides to the College to fund operations of the College, and the College will receive the benefit of the energy savings produced by the energy conservation improvements.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PASSAIC, NEW JERSEY, AS FOLLOWS:
Section 1. The recitals to this resolution are hereby incorporated as if set forth in full herein.
Section 2. The County hereby authorizes the sale and issuance, in one or more series, of an amount not to exceed $10,500,000 of “Energy Savings Obligation Refunding Bonds” (the “Bonds”) referred to, authorized by and described in the Refunding Bond Ordinance. The Bonds are being issued to provide for (i) the energy savings improvements described in the Energy Savings Plan and (ii) the costs associated with the authorization, sale and issuance of the Bonds (together, the “ESIP Project”).
Section 3. The Bonds are hereby authorized to be sold to UMB Bank, or such other investment banking or financial institution selected by the Chief Financial Officer (the “Underwriter”), in accordance with a bond purchase contract to be entered into by and between the Underwriter and the County (the “Purchase Contract”) pursuant to this resolution and otherwise in accordance with the terms included in the application submitted by the County to the Local Finance Board. The purchase price for the Bonds shall be as set forth in the Purchase Contract, plus unpaid accrued interest, if any, from the dated date of the Bonds to, but not including, the delivery date of the Bonds. The County Commissioner Director and/or the Chief Financial Officer of the County are hereby authorized to enter into the Purchase Contract on behalf of the County with the Underwriter in a form satisfactory to McManimon, Scotland & Baumann, LLC, bond counsel to the County (“Bond Counsel”). The signature of the County Commissioner Director and/or the Chief Financial Officer on the Purchase Contract shall be conclusively presumed to evidence any necessary approvals for the execution and delivery of the Purchase Contract.
Section 4. The Bonds shall be issued in accordance with the terms and the conditions set forth in the Purchase Contract and within the parameters set forth herein:
(a) The Bonds shall be issued in a par amount determined to be necessary to pay costs of the ESIP Project, all in accordance with the Local Finance Board approval; provided that such par amount of all such Bonds issued shall not in any case exceed $10,500,000;
(b) The Bonds shall be dated and delivered on such date or dates as set forth in the Purchase Contract;
(c) The Bonds shall be issued in the form of one bond for each maturity;
(d) The Bonds shall be numbered consecutively from R-1 upward and the maturity structure or weighted average maturity for the Bonds shall be substantially similar to the structure submitted to and approved by the Local Finance Board, subject to any adjustments recommended by the Underwriter on the sale date designed to reduce the total costs of the borrowing of the County;
(e) The Bonds may be subject to optional redemption and/or mandatory sinking fund redemption as set forth in the Purchase Contract;
(f) Depending on market conditions and other factors at the time of the sale, the Bonds may be issued in one or more series as determined by the Chief Financial Officer, in consultation with Bond Counsel and with NW Financial Group, LLC, the County’s Municipal Advisor (the “Municipal Advisor”).
Section 5. The Bonds shall be substantially in the following form with such additions, deletions and omissions as may be necessary for the County to conform the Bonds to the requirements of the Purchase Contract.
SAMPLE BOND FORM FOR INFORMATION ONLY - DO NOT COMPLETE
REGISTERED REGISTERED
NUMBER R. ____ $___________
UNITED STATES OF AMERICA
STATE OF NEW JERSEY
COUNTY OF PASSAIC
ENERGY SAVINGS OBLIGATION REFUNDING BOND
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REGISTERED OWNER: |
Cede & Co. |
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PRINCIPAL AMOUNT: |
$ |
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DATED DATE: |
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MATURITY DATE: |
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RATE OF INTEREST PER ANNUM: INTEREST PAYMENT DATES: INITIAL INTEREST PAYMENT DATE: RECORD DATES: |
% |
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CUSIP NUMBER: |
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COUNTY OF PASSAIC, a body politic and corporate of the State of New Jersey (the "County"), hereby acknowledges itself indebted and for value received promises to pay to the REGISTERED OWNER, or registered assigns, on the MATURITY DATE, upon presentation and surrender of this bond, the PRINCIPAL AMOUNT, and to pay interest on such sum from the DATED DATE until it matures at the RATE OF INTEREST PER ANNUM specified above semiannually on the INTEREST PAYMENT DATES in each year until maturity, commencing on the INITIAL INTEREST PAYMENT DATE. Principal of and interest due on this bond will be paid to the REGISTERED OWNER by the County or its designated paying agent and will be credited to the participants of The Depository Trust Company as listed on the records of The Depository Trust Company as of the RECORD DATES next preceding the respective INTEREST PAYMENT DATES. The principal of and interest on this bond are payable in lawful money of the United States of America.
This bond is not transferable as to principal or interest. The participants are responsible for maintaining the records regarding the beneficial ownership interest in the bonds on behalf of the individual purchasers except to an authorized nominee of The Depository Trust Company. The Depository Trust Company shall be responsible for maintaining the book-entry system for recording the interests of its participants or the transfers of the interests among its participants.
[The bonds of this issue are not subject to redemption prior to their stated maturity dates.]
[The bonds of this issue maturing prior to ____________, 20__ are not subject to redemption prior to their stated maturities. The bonds of this issue maturing on or after ____________, 20__ are redeemable at the option of the County in whole or in part on any date on or after ____________, 20__ upon notice as required herein at par, plus in each case unpaid accrued interest to the date fixed for redemption.
Notice of redemption shall be given by mailing by first class mail in a sealed envelope with postage prepaid to the registered owners of the bonds not less than thirty (30) days, nor more than sixty (60) days prior to the date fixed for redemption. Such mailing shall be to the owners of such bonds at their respective addresses as they last appear on the registration books kept for that purpose by the County or a duly appointed Bond Registrar. However, as long as DTC (or any successor thereto) acts as Securities Depository for the bonds, notice of redemption may be sent to such Securities Depository by email or as otherwise permitted by the Securities Depository regulations. Any failure of the Securities Depository to advise any of its participants or any failure of any participant to notify any beneficial owner of any notice of redemption shall not affect the validity of the redemption proceedings. If the County determines to redeem a portion of the bonds prior to maturity, the bonds to be redeemed shall be selected by the County. The bonds to be redeemed having the same maturity shall be selected by the Securities Depository in accordance with its regulations.
If notice of redemption has been given as provided herein, the bonds or the portion thereof called for redemption shall be due and payable on the date fixed for redemption at the redemption price, together with unpaid accrued interest to the date fixed for redemption. Interest shall cease to accrue on the bonds after the date fixed for redemption. Payment shall be made upon surrender of the bonds redeemed.]
This bond is one of an authorized issue of bonds and is issued pursuant to the Local Bond Law of the State of New Jersey, an energy savings refunding bond ordinance, finally adopted by the County pursuant to the Local Bond Law on April 9, 2024, and entitled, “Energy Savings Obligation Refunding Bond Ordinance of the County of Passaic, New Jersey, Providing for the Acquisition, Construction and Installation of Energy Conservation Improvements to Certain Buildings of the Passaic County Community College, Estimated to Cost $21,315,000, Appropriating $10,500,000 Therefor and Authorizing the Issuance of Not to Exceed $10,500,000 Energy Savings Obligation Refunding Bonds to Provide for a Portion of the Cost of Such Improvements”, and a resolution of the County duly adopted by the County Board of Commissioners on June 25, 2024.
The full faith and credit of the County are hereby irrevocably pledged for the punctual payment of the principal of and interest on this bond according to its terms.
It is hereby certified and recited that all conditions, acts and things required by the Constitution or statutes of the State of New Jersey to exist, to have happened or to have been performed precedent to or in the issuance of this bond exist, have happened and have been performed, and that the issue of bonds of which this is one, together with all other indebtedness of the County, is within every debt and other limit prescribed by such Constitution or statutes.
IN WITNESS WHEREOF, the County has caused this bond to be executed in its name by the manual or facsimile signatures of its Commissioner Director and its Chief Financial Officer, its corporate seal to be hereunto imprinted or affixed, this bond and the seal to be attested by the manual signature of its Clerk of the Board of County Commissioners and this bond to be dated the DATED DATE.
COUNTY OF PASSAIC
[SEAL]
By: [executed upon issuance]
Commissioner Director
ATTEST:
By: [executed upon issuance] By: [executed upon issuance]
Clerk of the Board of County Commissioners Chief Financial Officer
[End of Form of Bond]
Section 6. The Bond shall be executed by the manual or facsimile signatures of the County Commissioner Director and the Chief Financial Officer under the official seal (or facsimile thereof) affixed, printed, engraved or reproduced thereon and attested by the manual signature of the Clerk of the Board of County Commissioners.
Section 7. The Bonds shall have printed thereon a copy of the written opinion with respect to the Bonds that is to be rendered by the County’s Bond Counsel, complete except for omission of its date. The Clerk of the Board of County Commissioners is hereby authorized and directed to file a signed duplicate of such written opinion in the office of such Clerk. Alternatively, the Bond may be accompanied by the signed legal opinion or a copy thereof.
Section 8. The County’s Bond Counsel is authorized to arrange for the printing of the Bonds. The proper officials of the County are hereby authorized and directed to execute the Bonds and to deliver them to the Underwriter in exchange for payment, including accrued interest from their date to the date of delivery, if any. The County Commissioner Director and the Chief Financial Officer are hereby authorized to execute any certificates necessary in connection with the distribution of the Official Statement. Such Official Statement may be distributed in preliminary form and deemed final for purposes of Rule 15c2-12 of the Securities and Exchange Commission on behalf of the County by the Chief Financial Officer or by the County Commissioner Director. Final Official Statements shall be delivered to the purchaser of the Bonds within the earlier of seven business days following the sale of the Bonds or to accompany the purchaser's confirmations that request payment for the Bonds.
Section 9. (a) The Chief Financial Officer is hereby authorized to make representations and warranties, to enter into agreements and to make all arrangements with The Depository Trust Company, Brooklyn, New York, as may be necessary in order to provide that the Bonds will be eligible for deposit with The Depository Trust Company and to satisfy any obligation undertaken in connection therewith.
(b) In the event that The Depository Trust Company may determine to discontinue providing its service with respect to the Bonds or is removed by the County and if no successor securities depository is appointed, the Bonds which were previously issued in book-entry form shall be converted to registered bonds (the “Registered Bonds”) in denominations of $5,000, or any integral multiple thereof, except that an amount maturing in any one year in excess of the largest principal amount thereof equaling a multiple of $5,000 will be in denominations of $1,000, or any integral multiple thereof. The beneficial owner under the book-entry system, upon registration of the Bonds held in the beneficial owner's name, will become the registered owner of such Registered Bonds. The County shall be obligated to provide for the execution and delivery of the Registered Bonds in certificate form.
Section 10. The County hereby covenants that it will comply with any conditions subsequent imposed by the Internal Revenue Code of 1986, as amended (the “Code”), in order to preserve the exemption from taxation of interest on the Bonds, including the requirement to rebate all net investment earnings on the gross proceeds above the yield on the Bonds, and that it will refrain from taking any action that would adversely affect the tax exemption of the Bonds under the Code. The County authorizes the Chief Financial Officer to act and determine on behalf of the County whether the Bonds will be designated as “bank qualified” within the meaning of Section 265 of the Code. The County hereby declares the intent of the County to issue obligations in the amount authorized herein and to use the proceeds to pay or reimburse expenditures for the costs of the ESIP Project. This Section 11 contains a declaration of intent within the meaning and for purposes of Treasury Regulations §1.150-2 or any successor provisions of federal income tax law.
Section 11. (a) Solely for purposes of complying with Rule 15c2-12 of the Securities and Exchange Commission, as amended and interpreted from time to time (the “Rule”), and provided that the Bonds are not exempt from the Rule and provided that the Bonds are not exempt from the following requirements in accordance with paragraph (d) of the Rule, for so long as the Bonds remain outstanding (unless the Bonds have been wholly defeased), the County shall provide for the benefit of the holders of the Bonds and the beneficial owners thereof:
(i) On or prior to October 1 of each year, beginning October 1, 2025, electronically to the Municipal Securities Rulemaking Board's Electronic Municipal Market Access (“EMMA”) system or such other repository designated by the Securities and Exchange Commission to be an authorized repository for filing secondary market disclosure information, if any, annual financial information with respect to the County consisting of the audited financial statements (or unaudited financial statements if audited financial statements are not then available, which audited financial statements will be delivered when and if available) of the County and certain financial information and operating data consisting of (1) County indebtedness including a schedule of outstanding debt issued by the County; (2) property valuation information; and (3) tax rate, levy and collection data. The audited financial statements will be prepared in accordance with generally accepted accounting principles as modified by governmental accounting standards as may be required by New Jersey law.
(ii) If any of the following material events occur regarding the Bonds, a timely notice not in excess of ten business days after the occurrence of the event sent to EMMA:
(1) Principal and interest payment delinquencies;
(2) Non-payment related defaults, if material;
(3) Unscheduled draws on debt service reserves reflecting financial
difficulties;
(4) Unscheduled draws on credit enhancements reflecting financial
difficulties;
(5) Substitution of credit or liquidity providers, or their failure to perform;
(6) Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds;
(7) Modifications to rights of holders of the Bonds, if material;
(8) Bond calls, if material, and tender offers;
(9) Defeasances;
(10) Release, substitution, or sale of property securing repayment of the
Bonds, if material;
(11) Rating changes;
(12) Bankruptcy, insolvency, receivership or similar event of the obligated person;
(13) The consummation of a merger, consolidation or acquisition involving an obligated person or the sale of all or substantially all of the assets of the obligated person, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material;
(14) Appointment of a successor or additional trustee or the change of name of a trustee, if material;
(15) Incurrence of a Financial Obligation of the Board, if material, or agreement to covenants, events of default, remedies, priority rights or other similar terms of a Financial Obligation, any of which affect holders of the Bonds, if material;
(16) Default, event of acceleration, termination event, modification of terms or other similar events under a Financial Obligation of the Board, if any such event reflects financial difficulties.
The term “Financial Obligation” as used in subparagraphs (b)(15) and (b)(16) above means a (i) debt obligation, (ii) derivative instrument entered into in connection with, or pledged as security or a source of payment for, an existing or planned debt obligation or (iii) guarantee of (i) or (ii); provided, however, that the term “Financial Obligation” shall not include municipal securities as to which a final official statement has been provided to the Municipal Securities Rulemaking Board consistent with the Rule.
(iii) Notice of failure of the County to provide required annual financial information on or before the date specified in this resolution shall be sent in a timely manner to EMMA.
(b) If all or any part of the Rule ceases to be in effect or changes for any reason, then the information required to be provided under this resolution, insofar as the provisions of the Rule no longer in effect or changed required the provision of such information, shall no longer be required to be provided or shall be provided as changed.
(c) The Chief Financial Officer shall determine, in consultation with Bond Counsel, the application of the Rule or the exemption from the Rule for each issue of obligations of the County prior to their offering. Such officer is hereby authorized to enter into additional written contracts or undertakings to implement the Rule and is further authorized to amend such contracts or undertakings or the undertakings set forth in this resolution, provided such amendment is, in the opinion of nationally recognized bond counsel, in compliance with the Rule.
(d) In the event that the County fails to comply with the Rule requirements or the written contracts or undertakings specified in this resolution, the County shall not be liable for monetary damages, remedy being hereby specifically limited to specific performance of the Rule requirements or the written contracts or undertakings therefor.
Section 12. The Chief Financial Officer, with the advice of the County's Bond Counsel, shall arrange for paying agent services or redemption agent services with a banking institution if any portion of the Bonds are term bonds requiring a sinking fund.
Section 13. The Chief Financial Officer is also authorized to pay the costs of issuance at or after the time of closing to the various participants regarding the sale and issuance of the Bonds.
Section 14. The County Commissioner Director, the Chief Financial Officer, the Clerk of the Board of County Commissioners and other appropriate representatives of the County are hereby authorized to take all steps necessary to provide for the issuance of the Bonds, including preparing and executing all such agreements, documents and certificates on behalf of the County, and further taking all steps necessary or desirable to implement the transactions contemplated by this resolution.
Section 15. The County Commissioner Director and the Chief Financial Officer are each hereby authorized and directed to execute an agreement between the County and the College, pursuant to which: (i) the County will issue the Bonds to finance the ESIP Project; (ii) the savings from the ESIP Project will fund the payment of the debt service on the Bonds; and (iii) the College authorizes the County to withhold the amount of debt service due annually on the Bonds from the College’s annual budget appropriation otherwise to be raised for utility operating costs in order to pay such annual debt service as it becomes due. Such agreement shall be in the form approved by the County’s Chief Financial Officer and Bond Counsel. The County Commissioner Director’s and/or the Chief Financial Officer’s signature upon such agreement shall be conclusive evidence of all approvals required in connection with such agreement. Upon execution, the Clerk of the Board of County Commissioners is authorized and directed to attest to the signature of the County Commissioner Director and/or Chief Financial Officer, and to deliver an execution copy of such agreement to the College.
Section 16. The reference to officers or representatives of the County in this resolution shall be deemed to include any interim, assistant, vice, deputy, acting or successor officer or representative authorized to act in that capacity.
Section 17. This resolution shall take effect immediately.
CERTIFICATE
I, Louis E. Imhof III, Clerk of the Board of County Commissioners of the County of Passaic, State of New Jersey (the “County”), HEREBY CERTIFY that the foregoing is a true and complete copy of a resolution adopted by the Board of County Commissioners by the vote set forth below as set forth in the minutes of the regular meeting of the Board of County Commissioners held on June 25, 2024 in accordance with the requirements of the New Jersey Open Public Meetings Law and that the aforesaid resolution has not been amended, modified or repealed and remains in full force and effect.
AYES:
NAYS:
ABSTENTIONS:
ABSENT:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of the County this ___ day of June, 2024.
______________________________________
Louis E. Imhof III
Clerk of the Board of County Commissioners
(SEAL)