HomeMy Public PortalAboutr 07:221
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No.01ti?1 Dn" of AdopliOl' Al1g>'~t 23, 2007
RESOLl,lTlON OF THE BOROUGH OF CARTERET
REGARDING THE PRE-DEVELOPMENT AGREEMENT WITH
KINDER MORGAN LIQUIDS TERMINAL, LLC
WHEREAS, the Local Redevelopment and Housing Law, NJ.S.A. 40A:12A-1 el scq.,
as amended and supplemented (the "Redevelopment Law") provides a process 'for
municipalities to participate in the redevelopment and improvement of areas in need of
redevelopment; and
WHEREAS, KlNDER MORGAN LIQUIDS TERMINALS LLC, a limited liability
company of the State of New Jersey, with offices at 1 Tenninal Road, Carteret, New
Jersey 07008, and its successors and assigns (the "Company") is the fee title owner ofthe
follmving tracts or parcels of real property located within the Borough and designated on
the Official Tax Map of the Borough as: Block 8, Lot 3; Block 9.01, Lots 1,2,3,4,4.02;
Block 9.03, Lots 5.01, 6.02, 7, 8.01, 8.02, 9,10,13.01 14.01,14.02,17.01, 17.02, 17.03,
17.04,17.05,18.02,18.03,19.01,20.01,23.01,23.02, 23.03, 23.04; Block 9.4, Lots 13;
14; Block 9.6, Lot 7; Block 10, Lots 1.01, 1.02,2,3.01,3.03,4, 5, 6, 7, 22, 25; Block
II.!, Lots 3, 4, 5, 21, 62; Block 140, Lot 16 (the "Company Property"); and
"'HEREAS, the Company and the Borough entered into a Settlement Agreement dated
as of wlarch 31,2007, wherein, among other things, they resolved a number of disputes
and agreed to consider procedures for the potential redevelopment of a portion of the
Company Property as described below
(
\VHEREAS, pursuant to the Settlement Agreement, the Company desires to have the
option to expand its facilities by constructing certain improvements, or combination of
improvements, consisting of ten (10) above ground storage tanks with a combined
capacity of up -to 1,000,000 banels, additional rail sidings, and related improvements; a
bio-diesel facility and related storage tanks; and such other improvements compatible
with the industrial use of the Company Property that meet the statutory criteria under the
Redevelopment Law for a redevelopment project, if the bio-diesel facility is not
constructed (collectively, the "Improvements") upon a celiain portion of the Company
Property, particularly Block 9.03, Lots 3.03, 14.02, 17.04, 18.02 and 18.03 (th,
"Improvement Area"); and .
\VHEREAS, at the Company's request, the Borough has agreed to authorize the
preliminary investigation to ascertain whether the Improvement Area qualifies to be
declared a "Redevelopment Area" and whether the Improvements should be: incorporated
into a Redevelopment Plan in accordance with the Redevelopment Law, and take any and
an actions necessary, desirable or related thereto (the "Borough Redevelopment
Actions"); and
\YHEREAS, the Parties have detemlined to execute an agreement to establish an escrow
fund with the Borough to provide for the paym~nt of the Borough's fees, costs and
expenses directly related to the Borough Redevelopment Actions (the "Pre-Development
Agreement", attached hereto in substantially final fonn as Exhibit A").
NOW, THEREFORE, BE IT RESOLVED as follows:
Section 1. The Pre-Development Agreement is hereby authorized to be
executed and delivered on behalf of the Borough by either the Mayor or the Chief
Financial Officer in substantially the form attached hereto as Exhibit A, with such
changes as the Mayor or the Chief Financial Officer (each an "Authorized Officer"), in
their respective sole discretion, after consultation with such counsel and any advisors to
the Borough (collectively, the "Borough Consultants"), as such Authorized Officer deems
necessary, desirable or convenient in sttch Authorized Officer's sole discretion. An
actions of the Authorized Officers and the Borough Consultants taken prior to the date of
adoption hereof in connection with any Borough Redevelopment Actions, including
without limitation, the Pre-Development Agreement, are hereby ratified and approved.
No. 07-221
D'le of Adoptio" A1JVI"t 23, 2007
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Section 2. The Borough Clerk is hereby authorized and directed, upon the
execution of the Pre~Development Agreement in accordance with the terms of Section 1
hereof, to attest to the Authorized Officer~s execution of the Pre-Development Agreement
and is hereby further authorized and directed to thereupon affix the seal of the Borough to
the Pre~Development Agreement.
Section 3. The Authorized Officers are each hereby further authorized to
perform any act, execute or acknowledge and deliver any other document, instrument or
certificate, which the Authorized Officer, after consultation with the Borough
Consultants, deems necessary, desirable or convenient in connection with any Borough
Redevelopment Actions, including without limitation, the Pre-Development Agreement,
and the Borough Clerk is hereby further authorized and directed to attest to such
execution or acknowledgement and to affix the seal of the Borough to any' such
. document, instrument or certificate,
Section 4.
prescribed by law.
This resolution shall take effect at the time and in the manner
Section 5. Upon the adoption hereof, the Borough Clerk shall forward
certified copies ofthis resolution to lYlatthew C. Karrenberg, Esq., DeCotiis, FitzPatrick,
Cole & Wisler, LLP, Special Redevelopment Counsel to the Borough.
Adopted this 23" day of August, 2007 and
certified as a tme copy of the original on
August 24,2007.
KATHLEEN M. BARNEY, IvlMC
Municipal Clerk
RECORD OF COUNCIL VOTE
CQUNCItJ\.JAN YES NO NY A.B. COUNCIL~fAN YES NO NY A.B.
BEllINO X y
J)H7: . .Y R!OS , Y
KRUM SITARZ X
X
x - Indicate Vote AB . Absent NV - Not .voting XOR - Indicates Vote to Overrule Veto
Adopted at a meeting of the Muni~ipaI Council
~ugust 23,2007
, '. '::ee'./~~A --. ~f'
/ I CLE V
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EXHIBIT A
PRE-DEVELOPMENT AGREEMENT
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THIS PRE-DEVELOPMENT
Agreement"), dated as of
AGREEMENT (the "Pre-Development
,2007, by and between:
THE BOROUGH OF CARTERET a municipal corporation afthe State of New
Jersey with offices at Carteret Borough Hall, 61 Cooke Avenue, Carteret, New Jersey
07008, and its successors and assigns (the "Borough"),
and
KINDER MORGAN LIQUIDS TERMINALS LLC, a limited liability
company of the State of New Jersey, with offices at 1 Tenninal Road, Calteret, New
Jersey 07008, and its successors and assigns (the "Company" and together with the
Borough, the "Parties").
W-I-T-N-E-S-S-E-T-H:
WHEREAS, the Local Redevelopment and Housing Law, N.J.S.A. 40A: 12A-l et
seq., as amended and supplemented (the "Redevelopment Law") provides a process for
municipalities to participate in the redevelopment and improvement of areas in need of
redevelopment; and
"'HEREAS, the Company is the fee title owner of the following tracts or parcels
of real propelty located within the Borough and designated on the Official Tax Map of
the Borough as: Block 8, Lot 3; Block 9.01, Lots 1,2, 3, 4, 4.02; Block 9.03, Lots 5.01,
6.02,7,8.01,8.02,9,10, 13.01 14.01, 14.02, 17.01, 17.02, 17.03, 17.04, 17.05, 18.02,
18.03,19.01,20.01,23.01,23.02,23.03,23.04; Block 9.4, Lots 13, 14; Block 9.6, Lot 7;
Block 10, Lots 1.01, 1.02,2,3.01,3.03,4,5,6,7,22,25; Block 11.1, Lots 3, 4, 5, 21, 62;
Block 140, Lot 16 (the "Company Property"); and
'VHEREAS, the Company and the Borough entered into a Settlement Agreement
dated as of 1vfarch 31, 2007, wherein, among other things, they resolved a number of
disputes and agreed to consider procedures for the potential redevelopment of a pOliion
ofthe Company Propelty as described below
'VHEREAS, pursuant to the Settlement Agreement, the Company desires to have
the option to expand its facilities by constmcting certain improvements, or combination
of improvements, consisting of ten (10) above ground storage tanks with a combined
capacity of up to 1,000,000 barrels, additional rail sidings, and related improvements; a
bio-diesel facility and related storage tanks; and such other improvements compatible
with the industrial use of the Company Property that meet the statutory criteria under the
Redevelopment Law for a redevelopment project, if the bio-diesel facility is not
constructed (collectively, the "hl1provements") upori a certain portion of the Company
Propelty, particularly Block 9.03, Lots 3.03, 14.02, 17.04, 18.02 and 18.03 (the
"Improvement Area"); and
\VHEREAS, at the Company's request, the Borough has agreed to authorize the
preliminary investigation to ascertain whether the Improvement Area qualifies to be
declared a "Redevelopment Area" and whether the Improvements should be incorporated
into a Redevelopment Plan in accordance with the Redevelopment Law, and take any and
all actions necessary, desirable or related thereto (the "Borough Redevelopment
Actions"); and
\VHEREAS, the Parties have determined to establish an escrow fund \vith the
Borough to provide for the payment of the Borough's fees, costs and expenses directly
related to the Borough Redevelopment Actions during the Pre-Development Period,
which shall include, without limitation, fees for legal, accounting, engineering, planning
and financial advisory services, including the fees incurred by the Borough in the
preparation and negotiation of this Pre-Development Agreement (the "Borough's
Costs"); and
\VHEREAS, the Borough agrees that in retum for the consideration provided
herein by the Company, in the event that the Improvement Area is declared to be a
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Redevelopment Area, the Company will be designated as the Redeveloper for the
implementation of the Redevelopment Project, including the development of the
Redevelopment Plan incorporating the . Improvements and the neg<:tiation of an
Agreement with the Borough for the financing and constmction of the Improvements.
NO'V, THEREFORE, for and in consideration of the mutual promises,
representations, covenants and agreements contained herein and the undertakings of each
Party to the .other and such other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound
hereby and to bind its successors and assigns, do mutually promise, covenant and agree
as follows:
1. The Recitals Incorporated.
The recitals of this agreement are illcOlporated by reference as if set forth at
length herein.
2. The Pre-Development Period,
The period during which the Borough, or its Planning Board, investigate whether
the Improvement Area qualifies to be designated a Redevelopment Area, the adoption of
a Redevelopment Plan, the designation of the Company as Redeveloper, and the entry of
a Redevelopment Agreement and/or Financial Agreement goveming the financing and
constmction of the Improvements, The Pre-Development Period will tenninate ill the
event any of the foregoing events are not approved by the Borough within a reasonable
time, or upon the entry of a Redevelopment Agreement and/or Financial Agreement
which supersedes this Pre-Development Agreement, or if the maximum amount of the
Pre-Development Costs is drawn down by the Borough without the Company consenting
to additional funds within a reasonable time as set forth in Section 3 below. The Pre-
Development Agreement may also be temunated by either party upon thirly (30) days
written notice; in which case the escrow balances shall be repaid to the Company as set
forth in Section 3 below.
3. Pavment of tile Borough's Costs during the Pre-Development Period
.Within thirty (30) days of the execution of this Pre-Development Agreement, the
Company shall deposit with the Borough fifty thonsand dollars ($50,000), w1uch the
Borough shall deposit into a non-interest bearing escrow account established by it for the
payment of the Borough's Costs, Prior to the Borough's withdrawal of funds from the
esctow for the payment of the Borough's Costs, the Borough shall provide the Company
with a copy of each invoice reflecting the Borough's Costs to be paid. Unless the
Company promptly (witlun 20 days of its receipt of any such copy) provides a written
objection that any invoiced item is not a Borough Cost, the Borough shall be fi:ee to
withdraw funds from the escrow for the payment of such invoiced services, If, when and
as often as may occur that the escrow. account is drawn down to or below twenty
thousand dollars ($20,000), then the Company, upon the Borough's request, shall witlun
30 days provide to the Borough for deposit such additional funds as are necessary to
increase the balance in the escrow account to fifty thousand dollars ($50,000) for use in
accordance with these telliS. Every thirty (30) days the Borough shall provide the
Company with a statement of those Pre-Development Costs paid from the escrow fund.
The Borough shall also provide the Company with a final invoice and statement of Pre-
Development Costs within ten (10) days of the canceIlation or expiration of the Pre-
Development Agreement. Notwithstanding the obligation of the Company to replenish
the escrow as set forth in this paragraph, the Company's maximum liability for Pre-
Development Costs is one hundred thousand dollars ($100,000), unless the Company
consents to a higher amount in writing, which consent shall not be unreasonably delayed,
In the event that this Pre-Development Agreement either expires or is cancelled by the
Borough or the Company, in their sole discretion as set forth in Section 2 above, then
within thirty (30) days of the expiration or cancellation, all escrowed monies shall be
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returned to the Company following the payment from the escrow account of the
Borough's Costs incurred up to the time of said expiration or cancellation.
4. Borough Redevelonment Actions.
a. The Pa11ies hereby expressly acknowledge and understand that the
governing body of the Borough (the "Borough Council"), in its absolute and sole
discretion, must approve, authorize or otherwise consent to any and all Borough
Redevelopment Actions, including without limitation, the declaration ofthe Improvement
Area as a Redevelopment Area in accordance with the Act, and that the Borough makes
no representations, covenants, warranties or guarantees that the Borough Council shall
approve, authorize or otherwise consent to any Borough Redevelopment Action, except
as otherwise set forth herein.
b., The parties agree that this Pre-Development shall not be interpreted in any
way to constitute a "Redevelopment Agreement" for purposes of the Act or other
applicable law.
c. Nothing contained in this Pre-Development Agreement shall constitute a
waiver, surrender or relinquislunent of any and all rights the Borough may have in
accordance with applicable law, including, without limitation, the Redevelopment Law,
with respect to the declaration of the Improvement Area as a Redevelopment Area, the
negotiation of a Redevelopment Agreement, or any matters related thereto.
d. Nothing contained in tIus Pre-Development Agreement shall constitute a
waiver, surrender or relinquishment of any and all rights the Company may have as the
owner of the Company Propeliy including the right to develop the Company Propeliy
under the applicable zoning and pursuant to applicable law.
5. Additional Provisions
a. Unless otherwise provided in this Pre-Development Agreement, if any
tenn or provision of this Pre-Development Agreement shall to any extent or for any
reason be held invalid, illegal or unenforceable, such invalidity, illegality 6i~'
unenforceability shall not affect any other provision of this Pre-Development Agreemeqt~
but the remailider of tllis Pre-Development Agreement and each term and provision of
this Pre-Development Agreement shall be valid and enforceable to the fullest extent
pennitted by law, subject to such modification hereof as may be necessitated by such
invalidity.
b. This Pre-Development Agreement shall be governed by, and constmed
and enforced in accordance with, the laws of the State of New Jersey, without regard to
principles of conflicts of law.
c.
writing to:
Any notice provided to the Borough hereunder shall be submitted in
Kathleen M. Barney, Borough Clerk
Municipal Building
61 Cooke Avenue
Carteret, New Jersey 07008
With copy to:
Matthew C. Karrenberg, Esq.
DeCotiis, FitzPatrick, Cole & Wisler, LLP
500 Frank W. Burr Boulevard
Teaneck, New Jersey 07666
Notices to the Company shall be submitted in writing to:
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Kinder Morgan Liquids Tenninals, LLC
1 Tenninal Road
Carteret, New Jersey 07008
Attn: Frank Marrocco,.Regional Vice President
With a copy to
Richard L. Rudin, Esq.
Weiner Lesniak, LLP
629 Parsippany Road
Parsippany, NJ 07054-0438
d. If there is any inconsistency between the teons of this Pre-Development
Agreement and the teons of the Settlement Agreement between the paliies dated as of
March 31, 2007, the tenns of the Settlement Agreement shall control.
e. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which together shall be deemed one and the
same illstmment.
f. The parties hereto agree that each paliy and its counsel have reviewed the Pre-
Development Agreement and that the nOffilal rule of constmction to the effect that any
ambiguities are to be constmed against the drafter shall not be employed in the
interpretation of this Agreement or any amendments. Further, each of the parties' state
that they have carefully read the foregoing Pre-Development Agreement and know the
contents thereof, and each of them do hereby sign the same as their own free act after
ample opportunity to review the document and consult with any individuals, advisors, or
counsel of their choosing.
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IN "'ITNESS 'VHEREOF, the Parties hereto have caused this Pre-Development
Agreement to be executed, all as ofthe date fIrst above written.
ATTEST:
BOROUGH OF CARTERET
BY:
Hon. Daniel J. Reiman, Mayor
Kathleen M. Bamey, Borough Clerk
[SEAL]
ATTEST:
KINDER MORGAN LIQUIDS
TERMINALS, LLC
BY:
Frank Marrocco, Regional Vice President
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