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HomeMy Public PortalAboutr 11-089�eoolutiou of f4lE Porog4 of &Mere#, C'. 5C No. 11 Date of Adoptio >- 2M RESOLUTION OF THE BOROUGH OF CARTERET,IN THE COUNTY OF MIDDLESEX, NEW JERSEY TO RATIFY AN AMENDMENT TO REDEVELOPMENT AGREEMENT FOR THE REDEVELOPMENT OF A PORTION OF THE WEST CARTERET MINUE STREET RETAIL REDEVELOPMENT AREA WHEREAS, pursuant to the Local Redevelopment and Housing Law, constituting Chapter 79 of the Pamphlet Laws of the State of 1992, as amended and supplemented (the "Act'), the Borough designated the A.J. Richard & Sons, Inc. (the "Redeveloper ") as the redeveloper of the properties in the Borough known as Block 50. 1, Lots 7, 8, 9, 21, 22, 23, 24, 25, 20.01, 20.02, 20.03, 20.04, 26.1 and 32.03; and WHEREAS, the Redeveloper and the Borough entered into that certain redevelopment agreement, dated as of May 27, 2008 the ( "Redevelopment Agreement'), pursuant to which the Redeveloper agreed to undertake the redevelopment of the Project Area (as defined in the Redevelopment Agreement); and WHEREAS, the Redeveloper and the Borough now desire to enter into an amendment to the Redevelopment Agreement (the "Amendment to Redevelopment Agreement') to further delineate the obligations of the Redeveloper to the Borough and the County of Middlesex and in substantially the same form as that on file with the Borough Clerk; and WHEREAS, the Borough believes that the Amendment to Redevelopment Agreement will serve the best interests of the Borough; and WHEREAS, the Borough desires to authorize and approve appropriate Borough officials, including the Mayor, the Director of Law, the Borough Construction Official and/or the Borough Engineer, to execute and deliver to the Redeveloper, a Certificate of Completion in accordance with Section 6.16 of the Redevelopment Agreement, upon the submission by the Redeveloper of necessary documentation therefore. NOW, THEREFORE BE IT RESOLVED by the Borough Council of the Borough of Carteret, in the County of Middlesex, New Jersey, as follows: Section 1. The aforementioned recitals are incorporated herein as though fully set forth at length. Section 2. The Mayor is hereby authorized to execute the Amendment to Redevelopment Agreement by and between the Borough and the Redeveloper in substantially the same form as that on file with the Borough Clerk and which, by this reference is incorporated herein (the "Amendment to Redevelopment Agreement'), with such additions, deletions and modifications as may be necessary after consultation with the Borough's professional consultants. Section 3. The Borough Council hereby authorizes appropriate Borough officials, including the Mayor, the D of Law, the Borough Construction Official NO. 11 -89 PAGE —2 — and/or the Borough Engineer, to execute and deliver to the Redeveloper a Certificate of Completion in accordance with Section 6.16 of the Redevelopment Agreement, upon the submission by the Redeveloper of necessary documentation therefor. Section 4. If any part of this Resolution shall be deemed invalid, such part(s) shall be severed and the invalidity thereby shall not affect the remaining parts of this Resolution. Section 5. This Resolution shall take effect immediately. Adopted this 28th day of April, 2M and certified as a true copy of the o riginal on April 29, 2011. mum M. Bwud MC Mnicipal Clerk RECORD OF COUNCIL VOTE COUNCILMAN YES NO I NV I A.B. 11 COUNCILMAN YES NO NV A.B. BEU RD WM X DIAZ x WUS x DD A990 X SrM X - Indicate Vote AB - Absent NV - Not Voting XOR - Indicates Vote to Overrule Veto Adopted at a meeting of the Municipal Council Apr 28, 20 fI GRK M AMENDMENT TO REDEVELOPMENT AGREEMENT BY AND BETWEEN THE BOROUGH OF CARTERET, NEW JERSEY as the Redevelopment Entity AND A.J. RICHARD & SONS, INC., as the Redeveloper Dated: April 29, 2011 13038 -038 4736014 PREAMBLE AMENDMENT TO REDEVELOPMENT AGREEMENT (the "Amendment ") made and dated as of the 29 day of April, 2011 by and between the BOROUGH OF CARTERET, a public body politic and corporate of the State of New Jersey (the "State ") located in the County of Middlesex, New Jersey (the 'Borough "), and A.J. RICHARD & SONS, INC., a New York corporation with offices at 150 Price Parkway, Farmingdale, New York 11735 (the "Redeveloper" and, together with the Borough, the "Parties "). WITNESSETH WHEREAS, pursuant to the Local Redevelopment and Housing Law, constituting Chapter 79 of the Pamphlet Laws of the State of 1992, as amended and supplemented (the "Act "), the Borough designated the Redeveloper as the redeveloper of the properties in the Borough known as Block 50. 1, Lots 7, 8, 9, 21, 22, 23, 24, 25, 20.01, 20.02, 20.03, 20.04, 26.1 and 32.03; and WHEREAS, the Redeveloper and the Borough entered into that certain redevelopment agreement, dated as of May 27, 2008 the ( "Redevelopment Agreement "), pursuant to which the Redeveloper agreed to under the redevelopment of the Project Area (as defined in the Redevelopment Agreement); and WHEREAS, the Parties now desire to enter into this Amendment to include an additional property in the Project Area and to modify the description of the project that the Redeveloper will construct thereon; and WHEREAS, by execution of this Amendment, the Borough desires to confirm that the Event of Default (as defined in the Redevelopment Agreement) by the Redeveloper, described in the October 7, 2009 letter to the Redeveloper from the Borough's redevelopment counsel, relating to the Redeveloper's failure to comply with the Project Schedule (as defined in the Redevelopment Agreement), is deemed cured, so long as the Redeveloper complies with the terms of this Amendment. NOW, THEREFORE, in consideration of the promises, the mutual covenants and agreements herein set forth and the undertakings of each party to the other, the Borough and the Redeveloper, each binding itself, its successors and its assigns, do mutually covenant, promise and agree as follows; ARTICLE I DEFINITIONS Section 1.01. Definitions Terms defined in the Recitals to this Amendment (the "Recitals ") shall have the meanings set forth therein. When used or referred to in this Amendment, all words and terms that are defined in the Redevelopment Agreement shall have the same meanings given to such words and terms as determined in said Redevelopment Agreement, except to the extent such words and terms are otherwise defined herein. 13038 -038 4736014 Section 1.02. Other Definitions As used or referred to, and unless the context clearly indicates a different meaning or use, in this Amendment: "Project Area" means the properties in the Borough designated on the Borough's tax map as Block 50. 1, Lots 5, 7, 8, 9, 21, 22, 23, 24, 25, 20.01, 20.02, 20.03, 20.04, 26.1 and 32.03. Section 1.03. Amendment to Section 4.03 of the Redevelopment Agreement Section 4.03 of the Redevelopment Agreement is hereby deleted and replaced with the following: "(a) The Parties hereby acknowledge and agree that the Borough will be required to utilize a portion of the parcels designated as Block 50.01, Lot 7 and Block 50.01, Lot 5 on the Borough's Tax Map, which parcels are proposed to be improved and are currently being utilized as a retention basin, for improvements to the intersection of Roosevelt Avenue and Minue Street, and the County of Middlesex (the "County ") will require an increase in the right of way along Roosevelt Avenue, which will also impact Lot 5 in Block 50.1. Such property is necessary to effectuate the realignment of Roosevelt Avenue, which will result in directing the flow of traffic along Minue Street, adjacent to the Project Area and the Redevelopment Project. Accordingly, and notwithstanding anything in Article X to the contrary, the Redeveloper hereby agrees that, upon the written request of the Borough, the Redeveloper will convey fee title to such property, described as approximately 13,268 square feet of land, running along the sheet side borders of Lots 5 and 7 in Block 50.01, as depicted in the site plan prepared by the Redeveloper's engineer and submitted to the County attached as Exhibit A dated February 11, 2010 and last revised October 14, 2010 (the "Site Plan "), at no cost to the Borough. Upon such conveyance, the Borough may, to the extent necessary, further convey fee title to such property to the County, and shall require as a condition of such conveyance to the County that the County agree to be subject to all terms and conditions hereof. In addition to the Site Plan, the County has depicted, by drawing of February 2011, the "Preliminary Parcel and Temporary Construction and Grading Easements ", on a map attached hereto as Exhibit B. In addition, the Redeveloper will grant a temporary easement, in favor of the Borough, over the portion of the Project Area depicted as necessary therefor in Exhibit B, to allow the Borough and /or the County to establish the grade reasonably necessary as a result of the increased right -of -way and realignment of Roosevelt Avenue and to also permit entry upon the land of Redeveloper for construction of the widened roadway and all related improvements described herein. The Borough will prepare a metes and bounds description of such interests to be conveyed, by fee title and temporary easements, upon completion of final design of the aforementioned improvements and approval thereof by the County. The Parties agree that to the extent the boundaries of the interests to be conveyed change due to the County's final design, the property to be so conveyed will be such property identified in the Site Plan as approved by the County, subject to such minor revisions as may be required. Such conveyance shall not negatively affect the Applicable Governmental Approvals, or the use and enjoyment of the land by the Redeveloper, nor shall such conveyance require any additional approvals or waivers. The Parties agree that, in the event that the Borough abandons the use of the aforementioned property for the purposes described herein, which abandonment shall be evidenced by the adoption of an appropriate Borough ordinance, such property will revert back to the Redeveloper, or to its successors or assigns. Any improvements made to such property subsequent to the conveyance of such property to the Borough or the County, as the 13038 -038 4736014 case may be, including any changes required to maintain the stormwater drainage capacity necessary for the Redevelopment Project, shall not be made at the Redeveloper's expense, it being recognized by the Borough and the County that the Redeveloper has paid to the County the sum of $160,154.00 to cover Redeveloper's fair share of the cost of the new traffic signal, intersection and drainage improvements, including, but not limited to all new sidewalk and curbing. The Borough or County, as applicable, shall restore any property of the Redeveloper damaged to the same condition as existed prior to any work performed by the Borough or County at the sole cost and expense of the Borough or County, as applicable. (b) The Borough and /or the County, as the case may be, shall also be granted a temporary construction easement, at no cost to the Borough or the County, to permit access to the Project Area for the purpose of working on the roadway or construction of the above - described improvements, and for which the Borough or the County, as applicable, will provide evidence of commercial general liability insurance naming the Redeveloper as an additional insured, and shall further require any of their contractors, subcontractors or agents engaged on their behalf to also name Redeveloper as an additional insured. The policies of insurance naming the Redeveloper as an additional insured shall provide primary and not secondary or excess coverage, and shall provide for written notice to the Redeveloper 30 days prior to any event of non - renewal or cancellation. Evidence of all such insurance shall be provided to the Redeveloper prior to the commencement of any work. Section 1.04. Deletion of Section 5.07 of the Redevelonment Agreement Section 5.07 of the Redevelopment Agreement is hereby deleted in its entirety. Section 1.05. Amendment to Portion of Exhibit N to the Redevelopment Agreement The Third Paragraph of Exhibit N to the Redevelopment Agreement is hereby deleted and replaced with the following: "In `Phase II' of the Redevelopment Project, the Redeveloper proposes to convert the existing 64,431 square foot building located at 1 Minue Street, Block 50.1, Lots 7, 8 and 9, into a P.C. Richard & Son retail and clearance center, along with additional storage and warehouse space. The exterior of the building shall be refurbished to comply with design standards of other P.C. Richard & Son retail stores. Moreover, the property designated as Block 50.1, Lot 5 on the Borough's tax map shall be converted to an 83 space surface parking lot to service the retail /clearance operation. Such improvements will be constructed in accordance with the amended site plan approval granted by the Planning Board at its meeting of February 24, 2010, and as amended pursuant to County and later administrative review of the Planning Board through October 14, 2010." Section 1.06. Amendment to Exhibit O to the Redevelopment Agreement Exhibit O to the Redevelopment Agreement is hereby deleted and replaced with the following: 13038 -038 4736014 " PROJECT SCHEDULE The project implementation tasks and completion dates set forth below shall be adhered to by the Redeveloper in accordance with the terms and conditions of the Redevelopment Agreement Task Date Submit Planning Board application for Completed preliminary and final site plan approval for Phases I and II 2. Obtain preliminary and final site plan Completed approval for Phases I and II 3. Obtain final Governmental Approvals for Completed Phase I (including building permits) 4. Continence construction of Phase I Completed 5. Complete construction of Phase I Completed 6. btain final Governmental Approvals for Completed Phase II (including building permits) 7. Commence construction of Phase II Completed 8. Complete construction of Phase II February 28, 2011 Section 1.07. Severability of Invalid Provisions If any one or more of the covenants or agreements provided in this Amendment, on the part of the Borough or the Redeveloper to be performed should be contrary to law, then such covenant or covenants, or agreement or agreements, shall be deemed severable from the remaining covenants and agreements, and shall in no way affect the validity of the other provisions of this Amendment. 13038 - 038 4736014 ARTICLE II MISCELLANEOUS Section 2.01. Incorporation of Redevelopment Agreement This Amendment shall be deemed to be an amendment to the Redevelopment Agreement, and the Redevelopment Agreement, as amended hereby, is hereby ratified, approved and confirmed in each and every respect. All references in the Redevelopment Agreement to the "Redevelopment Agreement', and all references to the "Redevelopment Agreement' in any other documents, instruments, agreements or writings, shall hereafter be deemed to refer to the Redevelopment Agreement as amended hereby. In the event of any conflict between the terms of the Redevelopment Agreement and this Amendment, the terms of this Amendment shall prevail. Section 2.02. Successors and Assigns This Amendment will be binding upon and inure to the benefit of the Borough and the Redeveloper and their respective heirs, executors, administrators, successors and assigns. Section 2.03. Execution of Counterparts This Amendment may be executed in any number of counterparts, each of which shall be executed by the Redeveloper and by the Borough and all of which shall be regarded for all purposes as one original and shall constitute and be but one and the same. Delivery of an executed counterpart of a signature page to this Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart. Any party so executing this Amendment by facsimile transmission shall promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by facsimile transmission. Section 2.04. Governing Law This Amendment shall be governed by and construed in accordance with the Applicable Laws of the State. 13038 -038 4736014 IN WITNESS WHEREOF, the Borough and the Redeveloper have each caused this Amendment to be executed as of the date first above written. ATTEST: M A. J. RICHARD & SONS, INC. BY: Thomas Pohmer, Vice President ATTEST: BOROUGH OF CARTERET, IN THE COUNTY OF MIDDLESEX, NEW JERSEY BY: Daniel J. Reiman, Mayor 13038- 038 4736014 Exhibit A Site Plan 13038 -038 4736014 Exhibit B Preliminary Parcel and Temporary Construction and Grading Easement Acquisition Map 13038038 4736014