Township of Barnegat, NJ Article V Sewer Extension Agreement with Menk Corporation

[Adopted 1-19-99 by Ord. No. 1999-2; amended 4-19-04 by Ord. No. 2004-09]

§ 74-33 Preamble.

The Township of Barnegat has entered into a Sewer Extension Agreement with Menk Corporation, a New Jersey corporation, which Agreement is dated November 5, 1998; and has executed an Addendum dated April 19, 2004 to the Sewer Extension Agreement.

The aforementioned Sewer Extension Agreement and the April 14, 2004 Addendum are on file with the office of the Township Clerk and can be reviewed by the public during normal business hours.

The Agreement, in part, provides that Menk will pay to the Township up to one million one hundred seventy-five thousand dollars ($1,175,000) to fund the design and construction of certain sanitary sewer facilities, including but not limited to the facility known as the Fourth Street Pump Station.

The aforementioned Agreement provides, in part, a means by which Menk will be reimbursed for paying for the over-sizing of the system, which over-sizing is generally defined as a sanitary sewer system in excess of that which would be required to provide sanitary sewer facilities to a development being constructed by Menk in Barnegat Township known as "Mirage at Barnegat."

The Township believes it is necessary and proper to codify the terms of the aforementioned Sewer Extension Agreement and Addendum by ordinance, and furthermore to delineate and define the manner in which Menk could be reimbursed by future users as defined in the Sewer Extension Agreement as amended in the Service Area (not by the Township or its taxpayers) when those developers seek developmental approval in the Service Area, and be permitted to utilize a portion of the off-site sanitary sewer facilities which have been funded by Menk.

§ 74-34 Method of calculation and requirement for payment of unit reimbursement amount.

A. All terms and conditions set forth in the Sewer Extension Agreement entered into by the Township of Barnegat and Menk Corporation, a New Jersey corporation, dated November 5, 1998 and the Addendum dated April 19, 2004 are incorporated herein by reference as if set forth more fully herein and repeated at length. A copy of the aforementioned Sewer Extension Agreement and Addendum is on file with the Township Clerk at the Municipal Building in Barnegat Township, New Jersey, and can be reviewed during normal business hours.

B. In accordance with the aforementioned Sewer Extension Agreement and Addendum, future users of property in the Service Area, except for those who are exempted herein and in the aforementioned Sewer Extension Agreement or Addendum dated April 19th, 2004, are required to pay a unit reimbursement amount in order to partially repay Menk for monies paid by Menk to provide for the construction of the sanitary sewer facilities which are referenced in the aforementioned Sewer Extension Agreement and Addendum. The intent of assessing all developers in the Service Area the unit reimbursement amount is to reimburse and repay Menk excess monies paid by Menk for the oversizing of the sanitary sewer facilities, while not imposing on the Township in any manner any obligation whatsoever to Menk to pay for or accept any financial responsibility for those payments made by Menk to oversize the sewer system.

C. Every future user (other than as provided for in the aforementioned Sewer Extension Agreement or the Addendum dated April 19th, 2004) of any property located within the Service Area shall pay to Menk, via the Township, an amount calculated by multiplying the unit reimbursement amount (in the amount of three hundred ninety-two dollars ($392) plus accrued interest) by the total amount of PAC (i.e. Planned Adult Community), or equivalent, units for which such developer attained major subdivision or major site plan approval. Such payment or payments shall act as a reimbursement against Menk's reimbursable amount.

D. The total reimbursement pursuant to the provisions of paragraph 7.03 of the aforementioned Sewer Extension Agreement which may be due to Menk from other properties in the Service Area shall be four hundred eleven thousand six hundred dollars ($411,600) plus accrued interest or, if applicable, shall not exceed a figure adjusted pursuant to the provisions of paragraph 7.03 of the aforementioned Sewer Extension Agreement.

E. All developers of subdivision and/or site plan approvals within the Service Area (other than as provided for in the aforementioned Sewer Extension Agreement or the Addendum dated April 19th, 2004 shall pay the aforementioned unit reimbursement amount to Menk, via the Township, as follows:

(1)

(a) Twenty-five percent (25%) of the unit reimbursement amount shall be paid at the time of obtaining preliminary subdivision or site plan approval, or extensions and/or renewals thereof; and

(b) Seventy-five percent (75%) of the unit reimbursement amount shall be paid at the time of obtaining final subdivision or site plan approval, and prior to the execution of signing of the final subdivision plat or site plan, or extensions and/or renewals thereof; and

(2) For those which had preliminary approvals as of November 5, 1998, but not final, as to which construction has not commenced as of the date of this article, one hundred percent (100%) of the unit reimbursement amount shall be paid at the time of final approval; or

(3) For those which had final approvals as of November 5, 1998, as to which construction has not commenced as of the date of this article, one hundred percent (100%) of the unit reimbursement amount shall be paid at the time the building permit is issued; or

(4) As an option to payments pursuant to the timeframes in the above, those not listed as having overdue payments on Exhibit A to the Addendum may choose to pay future unit reimbursement amounts, at least ten (10) business days prior to requesting signatures from the Township on a plat for the purpose of plat filing. The payment required under this option shall equal the number of PAC units or equivalent shown on the applicable plat times the unit reimbursement amount including all interest which has accrued through to the month preceding the date when signatures are requested. If this option is chosen, sewer capacity shall not be deemed reserved for the affected subdivision plat until the required payment is made to the Township.

(5) Notwithstanding any provisions in the Agreement to the contrary, no unit reimbursement amount shall be collected from any individual residential lot which existed as of November 5, 1998 on an approved and improved Township road or from the result of a development approval which creates a minor subdivision (three (3) lots or less) or minor site plan (as defined by the Township Land Use Ordinance). It being the intention that collection of the unit reimbursement amount shall apply to properties being commercially developed by means of major site plan application or receiving major subdivision approvals.

F. Pursuant to the provision of the Sewer Extension Agreement, the reimbursement requirements shall not apply to those developments which are referenced in paragraph 11.04F of the aforementioned Agreement inasmuch as sewer capacity has previously been reserved by the Township for those developments and properties, which therefore do not need the benefit of the expanded and enlarged sewer facilities.

G. The Township is under no obligation to pay to Menk any of the Township funds in order that Menk will recoup in full the reimbursement amount, as defined in the Agreement. All such payments shall come from other properties, pursuant to the provisions of the Agreement. The amount to be reimbursed to Menk by other properties will not exceed four hundred eleven thousand six hundred dollars ($411,600) plus accrued interest. Menk in accordance with the Agreement may be reimbursed by various methods, all of which are specified in the Agreement, including but not limited to a reimbursement from other properties within the Service Area on a pro rata basis, thereby requiring each developer to pay its pro rata share for construction of the over-sized pump station facility.

H. Sewer connection fees paid by other properties to the Township in accordance with Township Sewer and Water Facility Rules and Regulations shall be retained by the Township and not credited to Menk, all in accordance with provisions of paragraph 11.04 of the Agreement.

I. The Township shall require unit reimbursement amounts to be paid on a timely basis, whether paid pursuant to the timeframe set forth in Section 11.04 of the Water Agreement or pursuant to the option set forth in Section 2.05 herein. All Planning Board resolutions for properties within the service area shall contain a condition requiring timely payment as per the Water Agreement, this Addendum and the applicable Township ordinances. No subdivision plat shall be signed by a Township official or employee unless full payment of unit reimbursement amounts attributable to that plat and all preceding plats in the affected development have been paid in full. "Paid in full" expressly includes all overdue interest as shown on the most recent monthly accounting provided by Menk to the Township. The Township shall also advise its Construction Code Official in writing that the failure to pay in full all unit reimbursement amounts shall constitute a failure to obtain "prior approvals" required for the issuance of building permits and certificates of occupancy. The written notice to the Construction Code Official shall state that no further building permits or certificates of occupancy shall be issued until the Township provides written notice of full payment of overdue amounts. Menk shall have the right to file an action in the Superior Court. Menk may seek relief in such action which may include but not necessarily be limited to, mandating action by the Township and/or enjoining the signing of plats and/or issuance of building permits or certificates of occupancy. Menk may also seek relief against the affected developer. If Menk elects to pursue legal action against the affected developer, the Township has recognized that Menk is an intended third party beneficiary under the applicable ordinance(s) and the Sewer Agreement and this Addendum.