Borough of Somerville, NJ Chapter 11 Contracts and Agreements

[HISTORY: Adopted by the Mayor and Council of the Borough of Somerville Article I, 11-17-08 as Ord. No. 2282; Article II, 11-17-08 as Ord. No. 2283. Amendments noted where applicable.]

Article I Restrictions on Political Contributions from Business Entities and Professional Business Entities

§ 11-1 Prohibition on Awarding Public Contracts to Certain Contributors for Goods and Services Exempt from Public Bidding Requirements whose Value Exceeds Five Thousand Dollars ($5,000).

A. Any other provision of law to the contrary notwithstanding, the municipality or any of its purchasing agents or agencies or those of its independent authorities, as the case may be, shall not enter into an agreement or otherwise contract to procure goods or services from any business entity or professional business entity, where the value of a single transaction exceeds five thousand dollars ($5,000), including those awarded pursuant to a "fair and open" process, from any professional business entity, if that entity has solicited or made any contribution of money, or pledge of a contribution, including in-kind contributions or loans, to any Somerville Borough municipal candidate or holder of municipal public office having ultimate responsibility for the award of the contract, or any local campaign committee, supporting such candidate or officeholder, or Somerset County political party in excess of the thresholds specified in Subsection D within one (1) calendar year immediately preceding the date of the contract or agreement with exception to Section 11-4.

B. For purposes of this Article, a "business entity" and/or a "professional business entity" seeking a public contract means an individual including the individual's spouse, if any, and any child living at home; person; firm; corporation; professional corporation; partnership; organization; or association. The definition of a business entity includes all principals who own ten percent (10%) or more of the equity in the corporation or business trust, partners, and officers in the aggregate employed by the entity as well as any subsidiaries directly controlled by the business entity.

C. Any individual meeting the definition of "business entity" or "professional business entity" under this section may contribute annually a maximum of two hundred ninety-nine dollars ($299) for any purpose to any candidate, for Mayor or Governing Body, to the any local campaign committee, supporting such candidate or officeholder local political party, referenced in this Article, without violating Subsection A of this section.

D. For purposes of this section, the office that is considered to have ultimate responsibility for the award of the contract shall be:

(1) The Somerville Borough Council and the Mayor of Somerville.

§ 11-2 Contributions Made Prior to the Effective Date. [1]

No contribution of money or any other thing of value, including in-kind contributions, or loans made by a business entity or professional business entity to any municipal candidate for Mayor or Council, or to the any local campaign committee, or Somerset County Political Party referenced in this Article shall be deemed a violation of this section, nor shall an agreement for property, goods, or services, of any kind whatsoever, be disqualified thereby, if that contribution was made by the business entity or professional business entity prior to the effective date of this Article.

[1] Editor's Note: Ordinance No. 2203, codified herein as Article I became effective July 1, 2009.

§ 11-3 Contribution Statement by Business Entity and Professional Business Entity.

A. Prior to awarding any contract or agreement to procure goods and services in excess of five thousand dollars ($5,000), with any business entity or professional business entity, the Borough or any of its purchasing agents or agencies, as the case may be, shall receive a contribution disclosure statement from the business entity or professional business entity annually or part of a bid package made under penalty of perjury that the bidder or offeror has not made a contribution in violation of Section 11-1 of this Article;

B. The professional business entity shall have a continuing duty to report any violations of this Article that may occur during the negotiation or duration of a contract. The certification required under this section shall be made prior to entry into the contract or agreement with the borough and shall be in addition to any other certifications that may be required by any other provision of law.

§ 11-4 Exceptions.

A. If a Department Head solicits and receives two (2) quotes for goods and/or services that exceed five thousand dollars ($5,000) in value. And the apparent lowest responsible quote from a business entity does not have a contribution disclosure statement on file or refuses to execute a contribution disclosure statement, the department head may make a recommendation to award the low quote. In addition, the award of the quote shall be made in order to provide goods and services at the lowest cost to the taxpayer.

B. If a department head solicits and receives two (2) quotes for goods and/or services that exceed five thousand dollars ($5,000) in value. And both bidders do not have a contribution statement on file or refuse to execute such statement. The department head shall solicit an additional quote and recommend the lowest responsible quote for an award.

C. If a department head identifies an emergency in accordance with Local Public Contract Law, the Department Head shall attempt to obtain a contribution disclosure statement however, such statement does not preclude the award of a contract in an emergency contract as defined in Local Public Contract Law.

§ 11-5 Return of Excess Contributions.

A business entity and/or a professional business entity or local municipal candidate or officeholder or municipal or party committee referenced in this Article may cure a violation of Section 11-2 of this Article, if, within thirty (30) days after the date on which the applicable ELEC Report is published, the professional business entity notifies the Borough Council in writing and seeks and receives reimbursement of a contribution from the municipal candidate or municipal political party referenced in this Article.

§ 11-6 Penalty.

A. It shall be a breach of the terms of a contract with any business entity or professional business entity to (i) make or solicit a contribution in violation of this Article; (ii) knowingly conceal or misrepresent a contribution given or received; (iii) make or solicit contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution; (iv) make or solicit any contribution on the condition or with the agreement that it will be contributed to a campaign committee of any candidate or holder of the public office of the Borough of Somerville; (v) engage or employ a lobbyist or consultant with the intent or understanding that such lobbyist or consultant would make or solicit any contribution, which if made or solicited by the business entity itself, would subject that entity to the restrictions of this Article; (vi) fund contributions made by third parties, including consultants, attorneys, family members, and employees; (vii) engage in any exchange of contributions to circumvent the intent of this Article; or (viii) directly or indirectly, through or by any other person or means, do any act which would subject that entity to the restrictions of this Article.

B. Furthermore, any business entity and/or professional business entity who violates Subsection A (ii—viii) shall be disqualified from eligibility for future Somerville Borough contracts for a period of three (3) calendar years from the date of the violation.

§ 11-7 through § 11-8. (Reserved)

Article II Restrictions on Political Contributions from Developers of Redevelopment Projects

[Amended 6-1-09 as Ord. No. 2304]

(Redevelopment agreements under the Local Redevelopment and Housing Law)

§ 11-9 Prohibition of Entering Into or Amending Redevelopment Agreements with Certain Contributors.

A. Any other provision of law to the contrary notwithstanding, the Borough of Somerville or any of its purchasing agents or agencies or those of its independent authorities, as the case may be, shall not enter into an agreement, amend an agreement, or otherwise contract with any redeveloper for the planning, replanning, construction or undertaking of any redevelopment project, including the acquisition or leasing of any public property in conjunction with the redevelopment of any area within the Borough of Somerville pursuant to the Local Redevelopment and Housing Law, if that redeveloper has exceeded two hundred ninety-nine dollars ($299) annually which is the ELEC reportable amount per election cycle at the time of the adoption of this Article, including in-kind contributions, or loans during the applicable time period to any municipal candidate for Mayor or Council, or to the any local campaign committee, or holder of public office within the Borough of Somerville having responsibility for arranging, entering into, or approving the redevelopment agreement, or for appointing those who enter into the agreement on behalf of the Borough of Somerville. For purposes of this section, the "applicable time period" shall be defined as the time period between the date that the property which is the subject of the redevelopment project has been included in a memorializing resolution adopted by the Governing Body directing the Planning Board to conduct a preliminary investigation to determine if the site is in need of redevelopment pursuant to and in accordance with the New Jersey Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq., and the date of entering into the redevelopment agreement.

B. The Borough of Somerville or any of its purchasing agents or agencies or those of its independent authorities, as the case may be, may not enter into an agreement, amend an agreement, or otherwise contract with any redeveloper for the planning, replanning, construction or undertaking of any redevelopment project, including the acquisition or leasing of any public property in conjunction with the redevelopment of any area within the Borough of Somerville pursuant to the Local Redevelopment and Housing Law, if that redeveloper has exceeded two hundred ninety-nine dollars ($299) annually which is the ELEC reportable amount per election cycle at the time of the adoption of this Article, including in-kind contributions, or loans during the applicable time period to any Somerset County political party. For purposes of this section, the "applicable time period" shall be defined as the time period between the date that the property which is the subject of the redevelopment project has been included in a memorializing resolution adopted by the Governing Body directing the Planning Board to conduct a preliminary investigation to determine if the site is in need of redevelopment pursuant to and in accordance with the New Jersey Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq., and the date of entering into the redevelopment agreement.

C. All redevelopment agreements or amendments thereto entered into by the Borough of Somerville shall contain a provision prohibiting redevelopers as defined in subsection C to solicit or make any contribution of money or pledge of a contribution including in-kind contributions and loans any municipal candidate for Mayor or Council, or to the any local campaign committee, or holder of public office within the Borough of Somerville having responsibility for arranging, entering into, or approving the redevelopment agreement, or for appointing those who enter into the agreement on behalf of the Borough of Somerville.

D. As defined in N.J.S.A. 40A:12A-3, a "redeveloper" means any person, firm, corporation or public body that shall enter into or propose to enter into a contract with a municipality or other redevelopment entity for the redevelopment or rehabilitation of an area in need of redevelopment, or an area in need of rehabilitation, or any part thereof, under the provisions of this Article, or for any construction or other work forming part of a redevelopment or rehabilitation project. For the purposes of this Article the definition of a redeveloper includes all principals who own ten percent (10%) or more of the equity in the corporation or business trust, partners, and officers in the aggregate employed by the provider as well as any affiliates or subsidiaries directly controlled by the redeveloper. Spouses and adult children at home shall also be included.

E. For the purposes of this section, the office that is considered to have responsibility for arranging and entering into the redevelopment agreement under the Article shall be:

(1) The Borough Council if the redevelopment agreement requires approval or appropriation from the Council or a public officer who is responsible for arranging and entering into the redevelopment agreement if that public officer is appointed by Council; or

(2) The Mayor of Borough if the redevelopment agreement requires the approval of the Mayor or a public officer who is responsible for arranging and entering into the redevelopment agreement if that public officer is appointed by the Mayor.

§ 11-10 Contributions Made Prior to the Effective Date. [1]

No contribution of money or any other thing of value, including in-kind contributions, made by a redeveloper to any Borough candidate for any municipal candidate for Mayor or Council, or to the any local campaign committee, or Somerset County political party shall be deemed a violation of this section nor shall an agreement for redevelopment projects of any kind whatsoever be disqualified thereby if that contribution or agreement was made by the redeveloper prior to the effective date of this section.

[1] Editor's Note: Ordinance No. 2204, codified herein as Article II, became effective July 1, 2009.

§ 11-11 Notice Given by Municipality; Sworn Statement of Redeveloper.

A. It shall be the municipality's continuing responsibility to give notice of this Article when the municipality gives notice of redevelopment pursuant to 40A:12A-6 and when the municipality adopts a resolution directing the Planning Board to prepare a redevelopment plan and at the time that the municipality adopts the ordinance to implement the redevelopment plan.

B. Prior to arranging and entering into the redevelopment agreement with any redeveloper, the borough or any of its purchasing agents or agencies or independent authorities, as the case may be, shall receive a sworn statement from the redeveloper that the redeveloper has not made any contribution in violation of Section 11-9A above. Furthermore, the redeveloper shall have a continuing duty to report any violations of this Article that may occur while arranging and entering into the redevelopment agreement, and until all specified terms of the agreement have been completed. The certification required under this section shall be made prior to entry into the agreement with the municipality and shall be in addition to any other certifications that may be required by any other provision of law.

§ 11-12 Contribution Restrictions and Disclosure Requirement Applicability to Consultants.

A. The contribution and disclosure requirements in this Article shall apply to all redevelopers as well as professionals, consultants or lobbyists contracted or employed by the business entity ultimately designated as the redeveloper to provide services related to the:

(1) Lobbying of government officials in connection with the examination of an area and its designation as an area in need of redevelopment or in connection with the preparation, consultation and adoption of the redevelopment plan;

(2) Obtaining the designation or appointment as redeveloper;

(3) Negotiating the terms of a redevelopment agreement or any amendments or modifications thereto; and

(4) Performing the terms of a redevelopment agreement.

B. It shall be a breach of the consultant's contract, and shall require immediate termination, for a consultant to violate the contribution limits and disclosure requirements in this Article.

C. A redeveloper who participates in, or facilitates, the circumvention of the contribution restrictions through consultants or professionals shall be deemed to be in breach.

§ 11-13 Return of Excess Contributions.

A redeveloper or municipal candidate or officeholder or municipal party committee referenced in this Article may cure a violation of Section 11-9 of this Article, if, within thirty (30) days after the date on which the applicable ELEC Report is published, the redeveloper notifies the Municipal Council in writing and seeks and receives reimbursement of the excess of the allowable contribution from the municipal candidate or municipal or county political party or PAC referenced in this Article.

§ 11-14 Penalty.

A. It shall be a breach of the terms of the Borough's redevelopment agreement for a redeveloper to: (i) make or solicit a contribution in violation of this Article; (ii) knowingly conceal or misrepresent a contribution given or received in excess of the allowable amount; (iii) make or solicit contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution in excess of the allowable amounts; (iv) make or solicit any contribution in excess of the allowable amount on the condition or with the agreement that it will be contributed to a campaign committee of any candidate or holder of the public office of the Borough of Somerville; (v) engage or employ a lobbyist or consultant with the intent or understanding that such lobbyist or consultant would make or solicit any contribution, which if made or solicited by the redeveloper itself, would subject that entity to the restrictions of this Article; (vi) fund contributions made by third parties, including consultants, attorneys, family members, and employees; (vii) engage in any exchange of contributions to circumvent the intent of this Article; or (viii) directly or indirectly, through or by any other person or means, do any act which would subject that entity to the restrictions of this Article.

B. Furthermore, any redeveloper who violates Subsection A (ii—viii) shall be disqualified from eligibility for future Borough redevelopment agreements for a period of four (4) calendar years from the date of the violation.