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HomeMy Public PortalAboutr 09:140 ~eJ?iol:\.tttott of t~.e '[liloro:\.t:S~ of QIarter.et1 ~~. JJ~ NO.09-140 D f d. June 11, 2009 ate 0 A optlOJl RESOLUTION OF THE BOROUGH OF CARTERET IN THE COUNTY OF MIDDLESEX, NEW JERSEY AUTHOIUZING THE EXECUTION OF A SUBSIDY AGREEMENT WITH THE BOROUGH OF CARTERET REDEVELOPMENT AGENCY \VHEREAS, the Borough of Carteret Redevelopment Agency (the "Agency") desires to issue certain bonds and/or project notes in connection with the acquisition of property in the Washington Avenue Redevelopment Area and in connection with other redevelopment projects; and \VHEREAS, the Agency believes that in order to obtain the most advantageous interest rates with respect to such bonds and/or notes, the Agency must execute a subsidy agreement with the Borou 0 acre,In e oun 1., "" Borough will agree to subsidize the Agency in the event of certain shortfalls in revenues with f' espect thereto; and NHEREAS, the Borough Council of the Borough believes that it is in the best interests of the esidents of the Borough to execute such subsidy agreement. NOW THEREFORE, BE IT RESOL YED BY THE BOROUGH OF CARTERET, IN THE COUNTY OF MIDDLESEX, NEW JERSEY, FOLLOWS: Section 1. The subsidy agreement attached hereto as Exhibit A is approved with Such changes, additions and deletions as shall be agreed to by the Mayor with the advice of the Borough attorney and special counsel (the "Subsidy Agreement"). Section 2. The Mayor and Borough Clerk are hereby directed to execute the Subsidy Agreement. Section 3. This resolution shall take effect immediately. Adopted this 11'" day of June, 2009 and certified as true copy of the original on June 12,2009. KATHLEEN M. BARNEY, MMC Municipal Clerk RECORD OF COUNCIL VOTE COUNCILMAN YES NO NY A,B. COUNCILMA1'~ YES NO NY A.B. BELLINO X ,~,," X COLON X ,,,m<< X 01" x CT~,"? X X-IndicateVOle AB-Absent NV - Not Voting XOR - Indicates Vote to Overrule Veto Adopted at a meeting of the Municipal Council ~~e ~~O~; ~R-e~~ &'t;'LJ'''- /' - CLERK '~'~- o ~,... EXHIBIT A SUBSIDY AGREEMENT BY AND BETWEEN THE BOROUGH OF CARTERET, IN THE COUNTY OF MIDDLESEX, NEW JERSEY AND THE BOROUGH OF CARTERET REDEVELOPMENT AGENCY PREAMBLE THIS AGREEMENT, made and dated as of the _ day of , 20 between the BOROUGH OF CARTERET, in the County of Middlesex, New Jersey (the "Borough"), and THE BOROUGH OF CARTERET REDEVELOPMENT AGENCY (the "Agency"), a public body politic and corporate of the State of New Jersey. WITNESSETH WHEREAS, pursuant to the Local Redevelopment and Housing Law, constituting Chapter 79 of the Pamphlet Laws of the State of New Jersey of 1992, as amended and supplemented (the "Act"), the Agency has heretofore been created by the Borough, and is a public body politic and corporate of the State of New Jersey organized and existing under the Ad, and the designHtpt1 l"Pt1pvelopment entity for, among other redevelopment areas, the Washington Avenue Redevelopment Area (as defined herein); and WHEREAS, the Borough desires to aid and assist the Agency with the acquisition, operation, maintenance, management, financing, construction and/or improvement of the Washington Avenue Redevelopment Area in accordance with the Washington Avenue Redevelopment Plan; and WHEREAS, the Borough and the Agency have determined that it will be economical and otherwise advantageous to them and to the residents of the Borough for the Borough and the Agency to enter into an agreement providing for and relating to, among other things, an obligation of the Borough to pay to the Agency such sums of money as provided herein, provided that said amounts subsequently shall be repaid to the Borough upon the terms described herein; and WHEREAS, the Borough and the Agency have duly authorized its proper officials to enter into and execute this agreement; 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 Agency and the Borough, each binding itself, its successors and its assigns, do mutually covenant, promise and agree as follows: 13038-099 372272.1 ARTICLE I DEFINITIONS Section 101. Definitions. As used and referred to in this Agreement: "Accountant" means a registered municipal accountant or a ce11ified public accountant of the State of New Jersey retained by the Agency; "Act" means the Local Redevelopment and Housing Law, constituting Chapter 79 of the Pamphlet Laws of 1992, of the State of New Jersey, and the acts amendatory thereof or supplemental thereto; "Additional Redevelopment Project" means any projects with respect to redevelopment areas (as defined in the Act) for which the Borough has designated the Agency as the redevelopment entity (as defined in the Act); "Agreement" means this Agreement, as amended or supplemented from time to time in accordance with its terms; "Agency" means the Borough of Cm1eret Redevelopment Agency, a public body corporate and politic; "Bond" means any bond, project note or other evidence of indebtedness hereafter issued by the Agency in connection with the Redevelopment Project or any Additional Redevelopment Project, including any bond, project note or other evidence of indebtedness issued by the Agency to refund any Bonds issued by the Agency in connection with the Redevelopment Project or any Additional Redevelopment Project. Bonds which are deemed to be paid (defeased) in accordance with their terms shall not be considered outstanding for the purposes of this Agreement; "Bond Resolution" means any resolution of the Agency authorizing the issuance of Bonds; "Borough" means Borough of Cm1eret, in the County of Middlesex, New Jersey; "Fiscal Year" means the period oftwelve consecutive months as shall be determined from time to time by resolution of the Agency; "Governing Body" shall have the meaning given to such term in the Act; "Redevelopment Project" means the acquisition of land within the Washington Avenuc Redevelopment Area and the construction of improvements thereon in accordance with an approved redevelopment plan; "Sections or Articles" mentioned by numbers are the respective Sections and A11icles of the Agreement so numbered; l3038.099 372272.1 2 "Washington Avenue Redevelopment Area" means the area consisting of propel1ies designated as Block 149, Lots 1 & 2, Block 186, Lots 7.01 & 7.02, Block 206, Lots 1 & 2, Block 208, Lots 1,2,3,4,5, 18 & 19, Block 212, Lots 10 & 11, Block 213, Lots 14.1, 14.2 & 15, Block 214, Lots 14, 15, 16 & 17, Block 219, Lots 1,2,3,4,5,6 & 29, Block 220, Lots 1,2,6 & 22, Block 3, Lot 3 and Block 222, Lots 11, 13, 16, 17, 19,20,21,23,25,26,28 & 29 on the Borough's tax map, which area was designated by the Borough, pursuant to NJ.S.A. 40A:12A-5 as an area in need of redevelopment; "Washington Avenue Redevelopment Plan" means the redevelopment plan adopted by the Borough pursuant to NJ.S.A. 40A:12A-7, as the same may be amended from time to time; "Umestricted Fund Balance" means any funds of the Agency which may be available for use by the Agency for any purpose, and which are not required by any contract of the Agency 01' any Bond KesoJutlOn to be retamed many fund 01' account established [01 the se<;u,ily uf lhe; Bonds. Words importing the singular number include the plural number, and vice versa, and words importing persons include firms, associations and corporations. Section 102, Short Title. This Agreement may be cited and referred to as the "Subsidy Agreement" . Section 103. Severability of Invalid Provisions. If anyone 01' more of the covenants 01' agreements provided in this Agreement, on the part of the Agency 01' the Borough to be performed should be contrary to law, then such covenant 01' covenants, agreement 01' agreements, shall be deemed severable from the remaining covenants and agreements, and shall in no way affect the validity of the other provisions ofthis Agreement. 13038-099 372272.1 3 ARTICLE II INITIAL REDEVELOPMENT PROJECTS Section 201. The Redeveloument Proiect. The Agency has been designated by the Borough as the redevelopment entity (as such term is defined in the Act) for the Washington Avenue Redevelopment Area. The Agency has ananged for the acquisition of certain properties located within the Washington Avenue Redevelopment Area and will arrange for the redevelopment thereof, including the construction of improvements necessary therefor. In connection therewith or with any Additional Redevelopment Project the Agency may issue Bonds. If issued, the Bonds shall be paid from, among other things, the pledge of revenues of the Agency as more fully set forth in the resolution of the Agency authorizing the issuance of the Bonds and paid to the Agency with respect to the Redevelopment Project or with any Additional Redevelopment Project. 13038-099 372272.\ 4 ARTICLE III REVENUES OF THE AGENCY AND PAYMENTS BY THE BOROUGH Section 301. Revenues, The Agency and the Borough acknowledge that the Agency will be unable to operate, maintain and manage the Redevelopment Project or any Additional Redevelopment Project such that the revenues of the Agency in each fiscal year shall be sufficient (A) to payor provide for the expenses of the Redevelopment Project or any Additional Redevelopment Project and the principal and redemption premium of and interest on any and all Bonds as the same become due, (B) to maintain such reserves or sinking funds as may be required by the telms of any contract of the Agency or any Bond Resolution or as may be deemed necessary or desirable by the Agency, and (C) to comply in all respects with the terms and provisions of any Bond Resolution and the Act. Section 302. Reserved, Section 303. Pavment of Actual Deficiencies. The Borough shall pay the Agency, upon 15 days notice, any amount needed to pay the principal and redemption premium of and/or interest on the Bonds to the extent such funds are not otherwise available from the Agency with respect thereto. Section 304. Boroul!:h's ObIil!:ation. The Borough shall make all budgetary or other provisions for appropriation in its annual budgetary process, or if necessary, by emergency appropriation or the issuance of bonds or notes, at any time, as may be necessary to provide for and authorize payment to the Agency as required by this Agreement. The payments required to be made by the Borough hereunder constitute valid, binding and general obligations of the Borough and the Borough shall levy ad valorem taxes upon all taxable property therein for the payment ofthe amounts due hereunder, limited for the purposes set forth in Section 303. ]303&-099 372272.1 5 ARTICLE IV MISCELLANEOUS Section 401. Accounts. The Agency will keep propel' books of record and account which shall, at all reasonable times, be subject to inspection by the Borough. The Agency shall cause its books and accounts to be audited annually by an Accountant, and annually within 6 months after the close of each Fiscal Year, copies of the report of such audits so made shall be furnished by the Agency to the Borough, including statements in reasonable detail, accompanied by a certificate signed by the Accountant, of financial condition, of revenues and operating expenses, and of all funds held by 01' for the Agency within 14 days of its completion. Section 402. Enforcement and Obli!!ation of Borou!!h. If any payment or part thereof due to the Agency from the Borough shall remain unpaid for 30 days following its due date, the Borough shall be charged with and will pay to the Agency interest on the amount ullpaiJ flUIII it, Ju" Jute; Ull(i! 1'"iJ, "[,, wte; 1'''1 "llllUlll "y'u,,1 tv 1 pel<:-ent ill exGCss ofth<:- highest rate of interest pel' aunum which the Agency is then paying with respect to any of its Bonds unless waived by the Agency. Every obligation assumed by 01' imposed upon the Borough by this Agreement shall be enforceable by the Agency by appropriate action or proceeding, and the Agency may have and pursue any and all remedies provided by law for the enforcement of such obligation. Section 403. Effect of Breach. Failure on the part of the Agency or the Borough in any instance 01' under any circumstance to observe 01' fully perform any obligation assumed by or imposed upon it by this Agreement or by law shall not relieve the Borough from making any payment to the Agency 01' fully perfOlming any other obligation required of it under this Agreement, but the Borough may have and pursue any and all other remedies provided by law for compelling perfOlmance by the Agency of said obligation assumed by or imposed upon the Agency. Section 404. Special Consent by Borou!!h. Whenever under the terms of this Agreement the Borough is authorized to give its written consent, such consent may be given and shall be conclusively evidenced by a copy, cellified by the Clerk and under its seal, of a resolution purpolling to have been adopted by the governing body of the Borough and purporting to give such consent. Section 405. Special Consent by A!!encY. Whenever under the terms of this Agreement the Agency is authorized to give its written consent, such consent may be given and shall be conclusively evidenced by a copy, cellified by its Secretary and under its seal, of a resolution purporting to have been adopted by the governing body of the Agency and purporting to give such consent. Section 406. Pled!!e or Assi!!nment. This Agreement may not be assigned by any pally without the consent of all other parties; provided, however, that, since this Agreement is made with pallicular reference to the holders 01' prospective holders of the Bonds or other obligations of the Agency for the purpose of assuring and protecting the interests of such holders, the Agency, without consent of the Borough, at any time may assign 01' pledge for the benefit 13038-099 372272.1 6 and secmity of the holders of Bonds all of its rights under the provisions of this Agreement to receive payments from the Borough, and thereafter this Agreement shall not be terminated, modified or changed by the Agency or the Borough except in the manner (if any) and subject to the conditions (if any) permitted by the terms and provisions of such assignment or pledge. Section 407. Repavments to Boroueh. It is the intention of the Borough and the Agency that obligations and expenses of the Agency be paid from revenues of the Agency. The Agency and the Borough further intend that the Borough be reimbursed for any amounts paid under this Agreement from the Unrestricted Fund Balance ofthe Agency or from the proceeds of Bonds at such time as the Agency's operations will permit. Section 408. Termination of this Aereement, At any time after the payment in full of all obligations of the Agency including its Bonds, the Borough or the Agency, may telminate this Agreement. This Agreement shall not terminate on account of the failure of any party hereto to perform its ohlie;Btions herennoer Section 409. Execution of Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be executed by the Agency and by the Borough and all of which shall be regarded for all pmposes as one original and shall constitute and be but one and the same. 13038-099372272.1 7 IN WITNESS WHEREOF, the Agency and the Borough have caused this Agreement to be signed by their respective duly authorized officers and this Agreement to be dated as of the day and year first above written. THE BOROUGH OF CARTERET REDEVELOPMENT AGENCY ATTEST: BY: CHAIRMAN SECRETARY A Tl.'EST' BOROUGH OF CARTERET, IN TIlE COUNTY OF MIDDLESEX, NEW JERSEY BY: CLERK MAYOR 13038-099 372272.1 8