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HomeMy Public PortalAboutr 07:222 ~\c.0oInfiott of il7c '@1otOng17 of C1Icrrfcrcf) ::N ~ 'JJ ~ . August 23 2007 No. 07-77? Dale of Adopt lOP , RESOLUTION OF THE 'BOROUGH OF CARTERET AUTHORIZING AN ACCESS AGREEMENT WITH CARTERE'T GATEWAY, LLC IN CONNECTION WITH THE WEST CARTERET COl\iMERCIAL REDEVELOPMENT AREA WHEREAS, the Local Redevelopment and Housing Law, N.J.S.A. 40A: 12A-1 et seg.) as amended and supplemented (the "Redevelopment Law") provides a process for municipalities to pm1icipate in the redevelopment and improvement of areas in ~e~d of redevelopment; and . 'VHEREAS, in accordance ,,,,ith the Redevelopment Law, the Borough has declared Block 372, Lots 1 through 17, and the Gennark Drive Right of Way (collectively, the "Properties") as an area in need of redevelopment (the "Redevelopment Area"); and - 'VHEREAS, on November 11, 2006, the Borough entered into that certain Pre.:. Development Agreement with Carteret Gateway, LLC (the "Company"), regarding the redevelopment of the Redevelopment Area; and WHEREAS, pursuant to the Redevelopment Law, including N.J.S.A. 40A:12- 8(h), the Borough is authorized to enter upon any building or land on the Properties in order to conduct investigations or make surveys, soundings or test borings necessary to cmTY out the purposes of the Redevelopment Law, and is further authorized to arrange for the planning and undertaking of a project and redevelopment work within the portion of the Redevelopment Area in which the Properties are located;' and "'HEREAS, the Borough is also authorized by the Eminent Domain Act (codified at N.J.S.A. 20:3-1 et seq., and as amended or supplemented from time to time, the "Eminent Domain Law"), including, N.J.S.A. 20:3-1 ~ ~., to acquire the Properties within the Redevelopment Area by condemnation and to enter upon any of the Properties for the purposes of making studies, surveys, tests, and other tests pursuant to N.J.S.A. 20:3-16; and 'VHEREAS, pursuant to the Redevelopment Law and the Eminent Domain Law, the Borough finds it appropriate to designate the Company and/or its representatives, agents, contractors or consultants (collectively, the "Agents") as agents of the Borough for the purpose of entering upon the Properties to undertake such studies and tests in anticipation of the construction of improvements on the Properties, including but not limited to making soundings or test borings, conducting investigations, making surveys (including engineering, environm"ental or architectural studies or tests), preparing engineering, environmental, or architectural data or any other purposes, tests or activities related t9 the objectives of undertaking the redevelopment of the Properties (the "Studies"); and "'HEREAS, the Borough and the Company have determined to execute an agreement governing the access to the Properties and the Studies to be conducted (the "Access Agreement", attached hereto in substantially final form as Exhibit A"). NOW, THEREFORE, BE IT RESOLVED as follows: Section 1. The Access 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 such Authorized Officer's sole discretion. All actions of the Authorized Officers and the Borough Consultants taken prior to the date of adoption hereof in connection \yith the Redevelopment Area, including without limitation, the PAGE 2 _. NG. 07-222 Access Agreement and the Pre-Development Agreement, are hereby ratified and approved. Section 2. The Borough Clerk is hereby authorized and directed, upon the execution of the Access Agreement in accordance Yl'ith the tenns of Section 1 hereof, to attest to the Authorized Officer's execution of the Access Agreement and is hereby further authorized and directed to thereupon affix the seal of the Borough to the Access Agreemeilt. Section 3. The Authorized Officers are each hereby further authorized to perfonn 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 the Redevelopment Area 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 S. Upon the adoption hereof, the Borough Clerk shall forward certified copies of this resolution to Matthew C. Kanenberg, Esq., DeCotiis, FitzPatrick, Cole & Vo.'isler, LLP, Special Redevelopment Counsel to the Borough. Adopted tItis 23" day of August. '2007 and certified as a true copy of the original on August 24, 2007. KATHLEEN M. BARNEY Municipal Clerk RECORD OF COUNCIL VOTE COUNCIU'I'I,\N 1 YES NO NY A.B. COUNCILMAN YES NO NY A.B. X NAPLES X OS KRUM X SITARZ x . Indicate Vote AB - Absent NV ~ Not Voting XOR - Tndicate:; Vote to Overrule Veto Adopted at a meeting of the l'vlunicipal Council 2 EXHIBIT A ACCESS AGREEMENT 3 ACCESS AGREEMENT Tills ACCESS AGREEMENT (the "Agreement") is made this _th day of ,2007, by and between THE BOROUGH OF CARTERET, a mmllcipal corporation of the State of New Jersey with offices at 61 Cooke Avenue, Cmieret, New Jersey (the "Borough") and CARTERET GATEWAY, LLC, a New Jersey limited liability company with offices at 1481 Oak Tree Road, Iselin, New Jersey 08830, and its successors and assigns (the "Company" and together with the BorouEih, the "Parties"). WITNESSETH 'VHEREAS, in accordance with the Local Redevelopment and Housing Law (codified at N.J.S.A. 40A:12A-l et seq., and as amended or supplemented from time to time, the "Redevelopment Law"), the Borough has declared the properties set forth as Exhibit A attached hereto (the "Properties") as an area in need of redevelopment (the "Redevelopment Area"); and WHEREAS, the Borough has adopted a redevelopment plan for the Redevelopment Area (the "Redevelopment Plan"); and "'HEREAS, on November 11, 2006, the Parties entered into that certain Pre- Development Agreement regarding the redevelopment of the Redevelopment Area; and WHEREAS, pursuant to the Redevelopment Law, including N.J.S.A. 40A: 12- 8(h), the Borough is authorized to enter upon any building or land on the Properties in order to conduct investigations or make surveys, soundings or test borings necessary to carry out the purposes of the Redevelopment Law, and is further authorized to arrange for the planning and undertaking of a project and redevelopment work within the portion of the Redevelopment Area in which the Properties are located; and 'VHEREAS, the Borough is also authorized by the Eminent Domain Act (codified at N.J.S.A. 20:3-1 et seq., and as amended or supplemented from time to time, the "Eminent Domain Law"), including, NJ.S.A. 20:3-1 m.~., to acquire the Propeliies within the Redevelopment Area by condCIllilation and to enter upon any of the Properties for the purposes of making studies, surveys, tests, and other tests pursuant to N.J.S.A. 20:3-16; and \VHEREAS, pursuant to the Redevelopment Law and the Eminent Domain Law, the Borough finds it appropriate to designate the Company and/or its representatives, agelits, contractors or consultants (collectively, the "Agents") as agents of the Borough for the purpose of entering upon the Properties to undeltake such studies and tests in anticipation of the construction of improvements on the Propelties, including but not limited to making soundings or test borings, conducting investigations, making surveys (including engineering, environmental or architechlral studies or tests), preparing engineering, environmental, or architectural data or any other purposes, tests or activities related to the objectives of undertaking the redevelopment of the Properties consistent with the Redevelopment Plan (the "Shldies"); and NO'V, THEREFORE, in consideration of the mutual promises and covenants, and other good and valuable consideration, the Parties hereto agree as follows: Section 1. Desienation and Authorization. The Borough hereby designates the Agents, including the Company, as agents of the Borough, and authorizes them to enter upon the Properties to undertake the Studies based on the telIDS and conditions set forth in this Agreement. Section 2. Limitations. (a) The Agents, including the Company, as agents of the Borough, are authorized to enter upon the Properties (including buildings and improvements on the 4 Properties) during reasonable business hours, orovided however, that notice of the intended entry is sent to the owners and the occupants of the Properties by certified mail at least ten (10) days prior to the date of entry, with a copy to the Borough. Therefore, the Agents, including Company, as agents of the Borough, shall be required to provide such notice (Le., the ten (10) days' notice required pursuant to N.J.S.A. 20:3-16) prior to its entry onto the Properties. (b) The Company agrees that access to the Propel1ies shall be undertaken in a manner so as to avoid unreasonable interference with, and to minimize disturbance to, the nomml business operations of any owner or any lawful occ.upant of the Properties. (c) No soundings or borings shall be made on the Properties in which there exists a pipeline or other underground utility, except after providing appropriate notice to any relevant public utility owning or using the same. Prior to perfoffiling the Studies, the Agents, including the Company, as agents of the Borough, shall undertake such reasonable inquiry as such Agent deems necessary in order to detennine the location of underground pipelines or other underground utilities within the Properties. (d) In all other respects, the Agents, including the Company, as agents of the Borough, shall be required to adhere to the applicable provisions of N.J.S.A. 20:3-16 of the Eminent Domain Law. Section 3. Standard of Performance and Indemnification. (a) The Company agrees that any testing performed by the Agents, including the Company, as agents ofthe Borough, in the course of performing the Studies, shall be perfol1ned in a safe and workmanlike manner and in accordance with applicable laws, ordinances, rules and regulations, including, without limitation, the Redevelopment Law and the Eminent Domain Law. (b) The Company hereby indenmifies and agrees to hold the Borough, including without limitation, any of Borough's officers, elected officials, agents, employees, contractors, excluding the Agents, and the owners and occupants of the Properties, hamlless from and against liabilities, losses, claims, demands, costs, expenses (including reasonable attorneys' fees and expenses), construction, mechanic's and/or materialmen's liens and judgments related to Company's or the other Agents' access to the Properties, including without limitation any negligence, recklessness, willful misconduct or costs related to restoration of the Properties as set f011h in Section 5 of this Agreement, provided that the Company will not be obliged to indemnify and hold the Borough or the owners and occupiers of the PropC11ies harmless for the portion of the liabilities, losses, claims, demands, costs and expense and judgments that are detennined to be attributable to, or the result of, any negligence, recklessness or willful misconduct of the Borough or the owners and. occupants of the Properties. This indenmity shall survive the termination of this Agreement. Any limitation on the liability of the Company for the cost of restoring the Properties as set forth in Section 5 of this Agreement shall not be a limitation of the Company's indemnification obligations under. tlus Section 3, Section 4. Insurance. (a) As a condition of entry onto the Properties, the Company agrees to provide satisfactory evidence of liability insurance for general commercial, automobile and workers compensation, in an amount not less than Two Million Dollars ($2,000,000.00), insuring the Company, the Borough, including any of the Borough's officers, elected officials, agents, employees, contractors, and the owners and any occupants of the Properties against claims for bodily injury, death and property damage directly attributable to the negligence, recklessness or willful misconduct of the Agents during the course of such entry. The Company shall obtain and supply to the Borough and the owners and any occupants of the Properties certificates of insurance, naming the Borough, including any of the Borough's officers, elected officials, agents, employees, contractors, and the owners and any occupants of the Properties as additional insureds, 5 and evidencing that the above insurance coverage is in full force and effect. The Borough acknowledges and agrees that the Company can have other Agents supply the required insurance in its stead subject to compliance with all provisions of this Section 4. (b) All insurance policies required by this Section 4 shall be obtained from insurance companies licensed in the State of New Jersey and rated at least A++ in Best's Insurance Guide or such lesser rated provider that is proposed by the Company and is reasonably acceptable to the Borough. All insurance policies required hereunder shall be kept in full force and effect throughout the tenn of this Agreement. (c) All insurance policies required by this Section shall be nonassessable and shall contain language to the effect that (a) the policies are primary and noncontributing with any insurance that may be carried by the Borough, (b) the policies cannot be canceled or materially changed except after thirty (30) days written notice by the insurer to the Borough, and (c) the Borough shall not be liable for any premiums or assessments. All such insurance shall have deductibility limits reasonably satisfactory to the Borough and shall contain cross liability endorsements. Section 5. Restoration of Prooerties. The Company shall, at its sole cost and expense (or at the costs and expense of any other Agent), upon the completion of the Studies, but no later than the termination of this Agreement, restore the Properties which have been entered pursuant to this Agreement to the condition which existed prior to any entry thereon by the Agents, including the Company, as agents of the Borough. Section 6. Governmental Comoliance. The Company shall comply and shall cause any other Agent to comply with any statutes, ordinances, mles, orders, regulations and requirements of the applicable federal, State, county or municipal govemment, and any and all of their departments or bureaus with jurisdiction over the Properties, by reason of any act, omission or conduct on the part of any Agent, including the Company, as agents of the Borough. Without limiting the generality of the foregoing, the Company shall comply with the provisions of the Redevelopment Law, the Eminent Domain Law, and the Underground Facility Protection Act, (codified at N.J.S.A. 48:2-73 et seq., and as amended or supplemented from time to time). Section 7. Non-Asshmability. The rights granted pursuant to this Agreement are personal to the Borough, the Company and the other Agents. This Agreement is non-assignable and any attempt to assign this Agreement without the prior written .consent of the other Party hereto will tenl1inate all privileges granted to the assigning Party. Section 8. Reuorts and Confidentiality. The Company agrees that in connection with the Studies. copies of all reports, data, infonnation, laboratory reports or any other analysis of any materials from, on or near the Properties (collectively, the "Reports") are to be provided to the Borough witlun ten (10) days of the Company's receipt of such Reports. The Borough and the Company further agree that the contents of all Reports and Studies shall be held confidential by each Party and all of their respective representatives, agents, contractors and consultants, including without limitation the other Agents, to the fullest extent authorized by applicable law. The Parties agree that any notice required to be given to any governmental authorities as to any hazardous wastes discovered at or on the Properties in cOlmection with the rights granted pursuant to this Agreement shall be made by the Borough and not by the Company or any other Agent. Sectioll9. Notice of Ellvirollmental Dischar!!c. The Company shall give the Borough notice of any discharge or release of hazardous substances, hazardous wastes (as such tenn are defined in the environmental laws), asbestos or radon, at. in or under the Properties, or any evidence suggesting the presence of same, at, in or under the Properties as soon as reasonably practicable upon the detection of the same, taking into account that such discharge or release may constitute an immediate or potential hazard to the public safety. SectiolllO. DOl'ou!!h Studies. In cOlll1ectioIl with the Studies, the Company shall afford the Borough, or any of the Borough's representatives, employees 6 or consultants, the opportunity to observe any work or tests related to the Studies, to obtain split samples, and to conduct its own contemporaneous Studies on the Properties. Section!!. Condition of Prooerties. The Company hereby acknowledges that dangerous or unsafe conditions may exist at the Properties. The Agents shall enter upon the Properties at their own risk and the Company, on behalf of itself and the other Agents, hereby assumes all risk of loss or injury resulting therefrom. Section 12. Notice. A notice, demand or other communication required under this Agreement by any Party to the other shall be sufficiently given or delivered if dispatched by United States registered or certified mail, postage prepaid and return receipt requested, or delivered by ovemight courier, or via telecopy (and receipt acknowledged), or delivered personally (and receipt acknowledged), in any case to the Parties at their respective addresses set forth herein, or at such other address or addresses with respect to the Parties or their counsel/consultants as any Party may, from time to time, designate in writing and fonvard to the others as provided in this Section 12. If to the Borough: Borough of Carteret Municipal Building 61 Cooke Avenue Carteret, New Jersey 07008 Attll: Mayor and/or Borough Clerk with copy to: Matthew C. Karrenberg, Esq, DeCotiis, FitzPatrick, Cole & Wisler, LLP 500 Frank W. Burr Blvd. Teaneck, New Jersey 07666 If to the Company: William J. Sitar, Vice President Carteret Gateway, LLC 1481 Oak Tree Road Iselin, New Jersey 08830 with copy to: John A, Giunco, Esq, Giordano, Halleran & Ciesla, P.c. 125 Half Mile Road P.O. Box 190 Middletown, New Jersey 07748 Section 13. LelZal Authority. The Parties hereto hereby represent to each other as follows: (a) The Company represents and warrants to the Borough that (i) the Company is authOlized to execute and deliver this Agreement and to undertake and perfonn the Company's obligations hereunder, and to cause the other Agents to undertake and perform any of their obligations hereunder; (ii) this Agreement is a valid, binding and enforceable obligation of the Company in accordance with the tenns hereof; and (iii) that the Company has and will maintain adequate financial resources to satisfy the obligations of the Agents, including the Company, as agents of the Borough, under this Agreement; and (b) the Borough represents and warrants to the Company that (i) the Borough is authorized to execute and deliver this Agreement and to undeliake and perform the Borough's obligations hereunder; and (ii) this Agreement is a valid, binding and enforceable obligation of the Borough in accordance with the tenus hereof. 7 Section 14. Goyerning Law. TIns Agreement and the rights and obligations of the Parties hereunder shall in all respects be govemed by, and constmed and enforced in accordance with, the laws ofthe State of New Jersey. Section 15. Amendment. TIllS Agreement shall not be amended, modified or supplemented without the written agreement of the Parties. Section 16. Draffin!! Ambi!!uities: Interoretation. In interpreting any provision of tIus Agreement, no weight shall be given to, 110r shall any constmction or interpretation be influenced by, the fact that counsel for one of the Parties drafted this Agreement, each Patty acknowledging that it and its counsel have had an opportunity to review this Agreement and have contributed to the final f01111 of same. Section 17. Effectiye Date and Term. Anything herein contained to the contrary notwithstanding, (a) the effective date of this Agreement shall be the date upon which the Parties hereto have authorized, executed and delivered this Agreement; and (b) this Agreement and the rights and obligations provided for herein shall ten11inate, other ,than the indemnification obligations of the Company as set forth in Section 3 hereof which shall survive the tenllination of this Agreement, upon the first to occur of 0) the completion of the Studies, (ii) the Company's acquisition of the Properties, or (Hi) the telmination by the Borough of the Company's rights and privileges to redevelop the Redevelopment Area. Section 18. BilldiUlI Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors. Section 19. Execution of Counteroarts. This Agreement may be executed in one or more counterparts and when each Party has executed and delivered at least one counterpalt, this Agreement shall become binding on the Parties and such counterpalts shall constitute one and the same instmment. [Remainder of Page Intentionally Blank] 8 IN \VITNESS "'HEREOF the Parties have hereunto executed and delivered this Agreement as of the day and year first above written. ATTEST: CARTERET GATEWAY, L.L.C. By: ATTEST: BOROUGH OF CARTERET By: Daniel J. Reiman, :Mayor Kathlecnl\tI. Barney, Borough Clerk [SEAL] 9 BLOCK 372 372 372 372 372 372 372 372 372 372 372 372 372 372 372 372 372 372 EXHIBIT A PROPERTIES Germak Drive Right of Way 10 LOT 1 2 3 4 5 G 7.01 7.02 8 9 10 11 12 13 14 15 IG 17