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No. 08-295 D'" of AdOPllooIkarter 4, 2COi3
RESOLUTION OF THE BOROUGH OF CARTERET
AUTHORIZING THE EXECUTION AND DELIVERY OF
AMENDMENT NO, 2 TO REDEVELOPMENT AGREEMENT BY
AND BETWEEN THE BOROUGH OF CARTERET AND
CARTERET GATEWAY, LLC
WHEREAS, the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 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
WHEREAS, on December 5, 2007, the Borough of Carteret (the "Borongh") entered
into that certain "Redevelopment Agreement" with Carteret Gateway, LLC (the
I'Redeveloper") with respect to the redevelopment of the Project Area, as such term is
defmed therein, as amended and supplemented pursuant to that certain "Amendment No.
1 to Redevelopment Agreement", dated June 20, 2008 (collectively referred to herein as
the "Redevelopment Agreemenf'); and
WHEREAS, the Borough has negotiated an amendment to the Redevelopment
Agreement with the Redeveloper ("Amendment No.2 to Redevelopment Agreemene',
attached hereto as Exhibit A in substantially final form); and
NOW, THEREFORE, BE IT RESOLVED as follows:
Section 1. Amendment No. 2 to Redevelopment Agreement is hereby
authorized to be executed and delivered on behalf of the Borongh by either the Mayor,
Chief Financial Officer or Director of Law, each an "Authorized Officer", in substantially
the form attached hereto as Exhibit A, with such changes as such Authorized Officer,
after consultation with such counsel and any advisors to tbe Borough (collectively, the
"Borough Consultants"), 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 with the
Redevelopment Agreement are hereby ratified and approved.
Section 2: The Borough Clerk, or the Depnty Borough Clerk, is hereby
authorized and directed, upon the execution of Amendment No. 2 to Redevelopment
Agreement in accordance with the terms of Section 1 hereof, to attest to the Anthorized
Officer's execution of Amendment No.2 to Redevelopment Agreement and is hereby
further authorized and directed to thereupon affix the seal of the Borongh to the
Amendment No.2 to Redevelopment Agreement.
Section 3. Upon the execution and attestation of and if required, the placing
of the seal of the Borough on Amendment No. 2 to Redevelopment Agreement as
contemplated by Sections 1 and 2 hereof, the Authorized Officer is hereby authorized and
directed to (i) deliver snch fully executed, attested and sealed Amendment No. 2 to
Redevelopment Agreement to the Redeveloper and (ii) perform such other actions as the
NO. 00-295
PAGE 2 of 2
Authorized Officer deems necessary, desirable or convenient in relation to the execution
and delivery thereof.
Section 4. 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 Anthorized Officer, after consultation with the Borough
Consultants, deems necessary, desirable or convenient in connection with the
Amendment No. 2 to Redevelopment Agreement, and the Borough Clerk, or Deputy
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 5.
prescribed by law.
This resolution shall take effect at the time and In the manner
Section 6. Upon the adoption hereof, the Borongh Clerk shall forward
certified copies of this resolution to Matthew C. Karrenberg, Esq., Deeotiis, FitzPatrick,
Cole & Wisler, LLP, Special Redevelopment Counsel to the Borough.
Adopted this 4th day of December
2008 and certified as a true copy
of the original on December 5th,~.
KATHLEEN M. BARNEY, MM6
Municipal Clerk
COUNCILM~N COUNCIL VOTE
YEs NO NV A.B. COUNC.ILMAN
BELLINO YES NO NV A.B.
X KRUM
COLON y NAPLES x
DIAZ x
x SITARZ
X
X-Indicate Vote -
AB. Absent NY. NOI Voting XOR . IndiL'alc.~ Vole to Overrule Vew
Adopted a~ a meeting of the Municipal Council
Dec~mber 4, 2008
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RECORD OF
Clerk
EXHIBIT A
AMENDMENT NO.2 TO REDEVELOPMENT AGREEMENT
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AMENDMENT NO.2 TO REDEVELOPMENT AGREEMENT
THIS AMENDMENT NO.2 TO REDEVELOPMENT AGREEMENT (the
"Redevelopment Agreement Amendment No.2"), dated as of December 5, 2008, by and
between THE BOROUGH OF CARTERET a municipal corporation of the State of
New Jersey with offices at Carteret Borough Hall, 61 Cooke Avenue, Carteret, New
Jersey 07008, acting in the capacity of a redevelopment entity pursuant to the provisions
of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-l et seq., as amended
and supplemented (the "Redevelopment Law") and its respective successors and assigns
(the "Borough"), and CARTERET GATEWAY, L.L.C. a limited liability company
formed under the laws of the State of New Jersey with offices at 1481 Oak Tree Road,
Iselin, New Jersey 08830 and its successors and assigns (the "Redeveloper" and, together
with the Borough, the "Parties").
RECITALS:
WHEREAS, the Parties entered into that certain "Redevelopment Agreement",
dated December 5, 2007, as amended and supplement pursuant to that certain
"Amendment No.1 to Redevelopment Agreement", dated June 20, 2008 (collectively,
the "Redevelopment Agreement", any and all terms used herein and not otherwise
defined herein shall have the meaning ascribed to such term as set forth in the
Redevelopment Agreement), with regards to the redevelopment of the Project Area; and
WHEREAS, by means of written correspondence, dated November 25,2008 and
November 26, 2008, respectively (copies of which are attached hereto as Exhibit A), the
Redeveloper infOlmed the Borough that it is voluntarily terminating the Redevelopment
Agreement with respect to the Phase II Project only, all in accordance with Section 16.02
of the Redevelopment Agreement; and
WHEREAS, in accordance with Section 16.01(A)(i) of the Redevelopment
Agreement, the Redeveloper is obligated acquire fee title or otherwise execute binding
contracts to purchase all of the Property within the Phase I Project Area, which binding
contracts shall only be conditioned upon the issuance of the Government Approvals in
accordance with the timeframes set forth in Section 16.01(A)(ii) of the Redevelopment
Agreement, on or before December 5, 2008; and
WHEREAS, the Redeveloper has informed the Borough that due to the Chapter 7
Bankruptcy filing by the property owners of 1 Germak Drive on October 20, 2008, the
Redeveloper is unable to acquire fee title or otherwise execute a binding contract for the
purchase of that property by December 5, 2008; and
WHEREAS, the Redeveloper has further informed the Borough that due to
certain unspecified envirorunental issues related to the "Gas Boy" property (and together
with 1 Gelmak Drive, collectively referred to herein as the "Non-Contracted Phase I
PropeI1ies"), the Redeveloper is unable to acquire fee title or otherwise execute a binding
contract for the purchase of that property by December 5, 2008; and
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WHEREAS, due to the inability of the Redeveloper to acquire or otherwise
execute binding contracts for the purchase of the Non-Contracted Phase I Properties by
the date set fOlth in the Redevelopment Agreement, the Redeveloper has requested an
amendment to the Redevelopment Agreement to extend celtain timeframes and other
obligations set fOlth therein; and
WHEREAS, the Parties have agreed to amend the Redevelopment Agreement as
set fOlth herein.
NOW, THEREFORE, for and in consideration of the mutual promises,
representations, covenants and agreements contained herein and the undeltakings 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:
Section 1. The Redeveloper shall diligently pursue and use good faith effOlts
to acquire fee title to, or otherwise execute binding contracts, which binding contracts
shall only be conditioned upon the issuance of the Government Approvals in accordance
with the timefi.ames set forth in Section 16.01(A)(ii) ofthe Redevelopment Agreement, to
purchase the Non-Contracted Phase I Properties as quickly as commercially feasible, but
in no event, later than June 5, 2009.
Section 2. In the event the Redeveloper shall not acquire fee title to, or
otherwise enter into binding contracts to purchase any 01' all of the Property within the
Phase I Project Area, which binding contracts shall only be conditioned upon the issuance
of the Government Approvals in accordance with the timefi.ames set forth in Section
16.01(A)(ii) of the Redevelopment Agreement, by June 5, 2009, such event shall
constitute an Event of Default by the Redeveloper.
Section 3. Section 16.0HA) of the Redevelopment Agreement is hereby
amended to read in its entirety as follows:
"(A) With respect to the Phase I Project:
(i) On or before the earlier to occur of (a) the date upon which
the Redeveloper shall acquire fee title to, or otherwise execute binding
contracts for the purchase of, the Non-Contracted Phase I Propelties or (b)
June 5, 2009, but under no circumstances later than June 5, 2009, the
Redeveloper has not acquired fee title or otherwise executed binding
contracts to purchase all of the Property within the Phase I Project Area,
which binding contracts shall only be conditioned upon the issuance of the
Government Approvals in accordance with the timeframe set fOlth in
Section 16.0HA)(ii);
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(ii) On or before six (6) months from the date set forth in
Section 16.01(A)(i), the Redeveloper has not received the Governmental
Approvals necessary to commence construction of the Project
Improvements or has not commenced construction on the Project
Improvements;
(iii) A final Certificate of Completion for the Project
Improvements has not been issued within eighteen (18) months from the
date set forth in Section 16.01(A)(i);
(iv) The ownership interests in the Redeveloper change by more
than twenty percent (20%) in the aggregate, unless such change(s) has(ve)
first been approved by the Borough; or
FU11her, in the event that the Redeveloper, or any Qualified Ground
Lessee, who at all times shall be acting on behalf of, or agent for, the
Redeveloper, substantially abandons or suspends construction of the
Project Improvements for a period in excess of ninety (90) days not
resulting from the occurrence of Uncontrollable Circumstance, then,
whether or not any other Event of Default by the Redeveloper has been
declared by the Borough, the Borough shall have the right to (i) terminate
this Redevelopment Agreement, and/or (ii) draw upon the Project Security
to assure that the remaining work relating to the Project Improvements is
Completed or to obtain moneys to be applied toward payment of the costs
to Complete the work on the Project Improvements.
In the event that any Property within the Phase I Area shall be
acquired by the Borough through the exercise of its power of
condemnation in accordance with Article III hereof, and provided that the
Redeveloper provides the Borough with the Property Notice required by
Section 3.02 hereof prior to the date set forth in Section 16.01(A)(i) herein
and the Borough has not acquired fee title to such Property prior to the
date set forth in Section 16.0HA)(i), the timeframe set forth in Section
l6.01(A)(ii) herein shall be extended to six (6) months from the date that
the Borough acquires fee title to such Property and the timeframe set f011h
in Section l6.0HA)(iii) shall be extended to eighteen (18) months from
the date that the Borough acquires fee title to such Property.
Nothing in this Section 16.01 shall prevent the Borough from
declaring that a Redeveloper Event of Default by the Redeveloper
hereunder has occurred nor from pursuing any of its other remedies
hereunder. "
Section 4. Notwithstanding any other duties, responsibilities or other
obligations that the Redeveloper may have in accordance with the Redevelopmentn
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Agreement, including without limitation, the submittal of Progress Reports to the
Borough, the Redeveloper shall submit to the Borough a detailed monthly report, due on
the fIrst day of each month, setting forth the status of the acquisition of the Non-
Contracted Phase I Properties, which report shall include, without limitation, (a) copies of
any and all written communications, or summaries of any and all verbal communications,
that the Redeveloper has had with the owner, trustee, holder or receiver of the Non-
Contracted Phase I Properties, (b) copies of any and all written communications, or
summaries of any and all verbal communications, that the Redeveloper has had with any
Governmental Authority, other than the Borough, regarding the Non-Contracted Phase I
Properties, including without limitation, any communications that the Redeveloper has
had with the NJDEP regarding the environmental condition of the Non-Contracted Phase
I Properties, (c) any planned meetings, conference calls, or other means of
communication that the Redeveloper has scheduled in any subsequent month(s) with any
owner, trustee, holder or receiver of the Non-Contracted Phase I Properties or any
Governmental Authority, other than the Borough, regarding the Non-Contracted Phase I
Properties, (d) a list of any issues, disputes, controversies or other factors, presented to
the Redeveloper by any owner, trustee, holder or receiver of the Non-Contracted Phase I
Properties or any Governmental Authority, other than the Borough, that is otherwise
preventing the Redeveloper from acquiring fee title to, or otherwise executing binding
purchase contracts for the purchase of, the Non-Contracted Phase I Propelties, along with
an explanation of any action that the Redeveloper plans to undertake or propose to
eliminate, remove or otherwise resolve such issue, dispute, controversy or other factors,
(e) a reasonable estimate of when the Redeveloper plans to acquire fee title to, or
otherwise execute binding contracts for the purchase of, the Non-Contracted Phase I
Propelties, and (f) any other information that the Redeveloper reasonably and in good
faith believes is relevant to, or otherwise impacts the status of, the acquisition of the Non-
Contracted Phase I Properties.
Section 5. The Project Schedule, as set forth in Exhibit 12 of the
Redevelopment Agreement, is hereby deleted and replaced, in its entirety, with the
schedule attached hereto as Exhibit B, and as of the date hereof the schedule attached
hereto as Exhibit B shall constitute Exhibit 12 of the Redevelopment Agreement.
Section 6. In accordance with Section 16.02 of the Redevelopment
Agreement, the Redeveloper has voluntarily terminated the Redevelopment Agreement
with respect to the Phase II Project only. The Redeveloper hereby expressly
ackllowledges, understands, agrees and represents that, for all purposes of the
Redevelopment Agreement, the Redevelopment Law, other Applicable Law, or any and
all other agreements, documents or instruments it may have entered into with the
Borough, (a) the Redeveloper shall have no further rights or privileges with respect to the
Phase II Project or the Phase II Project Area, (b) the Redeveloper shall no longer be
deemed the redeveloper of the Phase II Project Area, (c) the Borough shall have no
further duties, responsibilities, obligations or liabilities to the Redeveloper with respect to
the Phase II Project, Phase II Project Area or any other matters related thereto, and (d) the
Redeveloper hereby expressly waives any and all Claims it may otherwise have against
7
the Borough with respect to the Phase II Project, Phase II Project Area or any other
matters related thereto.
Section 7. The Redeveloper hereby expressly agrees, covenants, warrants and
represents that as of the date hereof, other than the failure to acquire fee title to, or
otherwise execute binding contracts for the purchase of, the Non-Contracted Phase I
Properties by December 5, 2008, there is no default or breach by the Redeveloper under
the Redevelopment Agreement, nor any event which, with the passage of time and the
giving of notice would result in a default or breach by the Redeveloper under the
Redevelopment Agreement and the Redevelopment Agreement is in full force and effect.
This Section 7 shall constitute an Estoppel Celiificate by the Redeveloper for all purposes
of the Redevelopment Agreement.
Section 8. Other than as may be set forth in Sections I through 7 hereof,
nothing contained herein shall alter, modify or amend any other provision of the
Redevelopment Agreement and the Redevelopment Agreement, including each and every
other such provision therein, shall remain in full force and effect.
Section 9. TIlls Redevelopment Agreement Amendment No. 2 may be
executed in one or more counterparts and when each Party has executed and delivered at
least one counterpart, this Redevelopment Agreement Amendment No.2 shall become
binding on the Parties and such counterparts shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Redevelopment
Agreement Amendment No.2 to be executed, all as of the date fIrst above WIitten.
ATTEST:
REDEVELOPER
Carteret Gateway, L.L.C.
By:
Douglas J. Sitar, Managing Member
ATTEST:
BOROUGH OF CARTERET
Kathleen M. Barney, Borough Clerk
By:
Daniel J. Reiman, Mayor
[SEAL]
9
COUNTY OF
)
)
)
STATE OF
The foregoing instrument was acknowledged before me this day of
, 2008, by Carteret Gateway, LLC, a New Jersey limited liability
company (the "Company"), by Douglas J. Sitar, its Managing Member, on behalf of the
Company.
Notary Public
Commission Expiration:
10
STATE OF NEW JERSEY )
)
COUNTY OF MIDDLESEX)
The foregoing instrument was acknowledged before me this _ day of
, 2008, by the Borough of Carteret (the "Borough"), a municipal
corporation of the State of New Jersey, by Daniel J. Reiman, its Mayor, on behalf of the
Borough.
Matthew C. Karrenberg, Esq.
Attomey at Law
State of New Jersey
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EXHIBIT A
COPIES OF REDEVELOPER CORRESPONDENCE
NOVEMBER 25, 2008
NOVEMBER 26, 2008
12-
EXHIBIT B
REVISED PROJECT SCHEDULE
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