AGREEMENT
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THIS AGREEMENT made as of the ______________ day of 20______
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BETWEEN
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THE BERGEN COUNTY SEWER AUTHORITY (hereinafter referred to as
the "Authority") a body politic and corporate of the State of New
Jersey,
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AND
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THE BOROUGH OF ENGLEWOOD CLIFFS, a municipal corporation of
the State of New Jersey situate in the County of Bergen, hereinafter
referred to as "Municipality."
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WITNESSETH
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RECITALS
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1. Pursuant to the Act of Legislature of the State of New Jersey
entitled: "An Act relating to the establishment of Sewerage districts
in first and second class counties, the creation of Sanitary Sewer
District Authorities by the establishing of such district, prescribing
the powers and duties of any such authority and of other public bodies
in connection with the construction of sewers and sewage disposal
facilities in any such district, and providing the ways and means
for paying the costs of construction and operation thereof," approved
April 23, 1946, constituting Chapter 123 of the Laws of 1946 (hereinafter,
with the acts amendatory thereof, referred to as "Act"), a sewage
district (hereinafter referred to as "Sewer Districts") was established
by resolution of the Board of Chosen Freeholders of the County of
Bergen, New Jersey, adopted on February 19, 1947. The Sewer District
comprises 50 municipal corporations situate in said County of Bergen,
and the Municipality is a part thereof.
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2. As provided in the Act, the Authority was created for the
Sewer District and is a body politic and corporate with perpetual
succession as a governmental instrumentality for the purpose, among
others, of the protection of public safety, health and welfare and
has all the proper or necessary powers to design, finance, construct,
acquire and operate such a system (hereinafter referred to as the
"Complete Sewer System") of trunk, intercepting and outlet sewers,
pumping and ventilating stations, treatment plants and other plants
and structures as in its judgment will provide the most effectual
and advantageous plan or method for relieving the Hackensack River
and its tributaries and other streams, whether navigable or otherwise,
within the Sewer District from pollution and for preventing pollution
of the same.
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3. Pursuant to the Act, the Authority did with all practicable
speed cause to be prepared a project report dated July, 1947, and
a project report dated December, 1952, and a project report dated
December 10, 1953, together with maps, designs and costs and other
estimates all in conformity with the Act (hereinafter collectively
referred to as the "Prior Project Report"), showing a proposed plan
or method of construction of a part (hereinafter referred to as the
"Overpeck Valley System") of the Complete Sewer System serving the
portion of the Sewer District known as the Overpeck Valley area, being
an area in which the Municipality is located either in whole or in
part, and pursuant to said Prior Project Report the Authority has
constructed a portion of the Overpeck Valley System including trunk,
intercepting and outlet sewers, a treatment plant, pumping stations
and other works serving in whole or in part the Borough of Cliffside
Park, the City of Englewood, the Borough of Fairview, the Borough
of Fort Lee, the Borough of Leonia, the Borough of Palisades Park,
the Borough of Ridgefield, the Village of Ridgefield Park, the Township
of Teaneck, the Borough of Tenafly and the Borough of Cresskill.
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4. Pursuant to the Act, the Authority did with all practicable
speed cause to be prepared a project report dated December 7, 1955,
together with maps, designs and costs and other estimates all in conformity
with the Act (hereinafter referred to as the "1955 Project Report")
relating to the Overpeck Valley System and showing a proposed plan
or method of construction, as a part of the Complete Sewer System,
of an intercepter sewer in the City of Englewood and Borough of Englewood
Cliffs connecting with the existing truck sewer of the Authority at
a point on the north border of New Jersey Highway Route No. 4 near
Jones Road and extending from such connection in a general northwardly
direction and generally along the course of Flat Rock Brook to a point
at or near the Englewood Cliffs-Englewood boundary line (said intercepter
sewer, together with all necessary works and facilities appurtent
thereto, being hereinafter referred to as the "Englewood Cliffs Extension").
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5. Copies of the Prior Project Report and the 1955 Project Report
have been supplied and submitted to the governing body of the Municipality
and to other bodies and in other places as required by the Act, and
the Prior Project Report and the 1955 Project Report are on file in
the office of the Authority and by this reference are made a part
hereof and are made subject to the provisions of this Agreement.
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NOW, THEREFORE, pursuant to the Act, and in consideration of
the premises and of the mutual covenants and undertakings herein contained,
it is hereby covenanted and agreed by and between the Municipality
and its successors, and the Authority, as follows:
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ARTICLE I
THE DISTRICT SEWER SYSTEM
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The Authority, pursuant to the Act and in the exercise of its
discretion, has heretofore deferred consideration of and action regarding
all parts of the Complete Sewer System except the Overpeck Valley
System, and shall hereafter, in the exercise of such discretion, defer
consideration of and action regarding only those parts of the Complete
Sewer System not constituting the Overpeck Valley System or the Englewood
Cliffs Extension. For all purposes of this Agreement, the Englewood
Cliffs Extension shall be deemed to be and shall constitute a part
of the District Sewer System of the Authority as that term is defined
and used in the Agreements dated as of November 23, 1948 and November
13, 1953, between the Authority and municipal corporations of the
State of New Jersey situate in the County of Bergen, and the Englewood
Cliffs Extension, together with the Overpeck Valley System, is hereinafter
referred to as the "District Sewer System."
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ARTICLE II
CONSTRUCTION OF DISTRICT SEWER SYSTEM
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Upon the taking effect of this Agreement and subject to the
conditions and provisions of the Act, the Authority shall with all
practicable speed commence and proceed with the construction and completion
of the District Sewer System, including the Englewood Cliffs Extension
in accordance with the Prior Project Report and the 1955 Project Report,
provided, however, that (a) the Authority, notwithstanding any of
the provisions of the Prior Project Report or the 1955 Project Report,
shall have full discretion in the determination of the size, capacity,
route and location of all trunk, intercepting and outlet sewers, pumping
and filtering stations, treatment plants and works or other plans
and structures, and (b) the Authority shall have full discretion to
make any change in any estimate or calculation in the Prior Project
Report or the 1955 Project Report, and (c) the Authority may proceed
with the construction and acquisition of the District Sewer System
and commence its operation in such sections or parts of the whole
or only at such time or times as the Authority may deem proper and
expedient and consistent with the plan or purpose of the Act. This
Agreement when effective shall continue and be binding upon the Municipality
notwithstanding any exercise of such discretion by the Authority contrary
to the provisions, estimates or calculations or any other conditions
of the Prior Project Report or the 1955 Project Report.
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ARTICLE III
OPERATION OF DISTRICT SEWER SYSTEM
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Upon completion of and acceptance of the District Sewer System
the Authority shall, as soon as practicable, cause the same to be
put into operation, and shall operate, repair and maintain the District
Sewer System so as to effectuate and carry out the plan and purposes
of the Act.
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ARTICLE IV
CONNECTIONS TO DISTRICT SEWER SYSTEM
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The Municipality shall, upon notice from the Authority, cause
and at all times permit its sewer or drainage system or the outfall
thereof to be connected with the District Sewer System at the point
or points designated in the 1955 Project Report or at such other point
or points as the Authority and the Municipality may mutually agree
upon, the said connection to be so made and constructed as to deliver
and discharge into the District Sewer System all of the sewage as
defined in the Act arising within or collected or caused by the Municipality
and not delivered by it into sewers or other facilities owned by the
City of Englewood or Borough of Tenafly discharging into the District
Sewer System. The Municipality shall be responsible for and pay the
costs of the delivery and discharge of sewage to and into such point
or points of connection.
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ARTICLE V
INSTALLATION OF METERS BY AUTHORITY
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Upon the making of connections with the District Sewer System
as provided in Article IV, the Authority shall provide and install
meters or other approved devices or establish other procedures for
the measuring of the flow of all sewage which shall be delivered and
discharged into the District Sewer System by the Municipality.
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ARTICLE VI
APPROVAL OF THE STATE DEPARTMENT OF HEALTH
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Before construction of any kind whatsoever with respect to the
Englewood Cliffs Extension is commenced under any contract or otherwise,
the plans and specifications for such construction shall be submitted
by the Authority to the State Department of Health of New Jersey for
approval as a sanitary measure, and a permit shall be obtained by
the Authority from said State Department of Health to proceed with
the work.
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ARTICLE VII
FISCAL YEAR
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A Fiscal Year of the Authority begins on the first day of January
in each year, and, wherever used in this Agreement unless a different
meaning clearly appears from the context, the term "year" or "Fiscal
Year" means a Fiscal Year of the Authority.
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ARTICLE VIII
ESTABLISHMENT OF RATES BY AUTHORITY
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The Authority may prescribe and change from time to time rates
to be charged under the Act and under this Agreement, for the discharge
and disposal of sewage through the District Sewer System. Such rates
shall be prescribed and from time to time revised so that the Authority
and the District Sewer System shall be and always remain self supporting
with earnings sufficient to provide for all expenses of operation,
maintenance, depreciation and repair, including establishment and
maintenance of working capital and reserves, and the payment and security
of the principal of and interest on any bonds issued or to be issued
pursuant to the Act, so as to prevent the accrual of any deficit.
Such rates shall be based upon the total annual volume of sewage from
municipalities, private sewer companies, industries or other institutions
discharged or disposed of through the District Sewer System, and shall
be uniform throughout the Sewer District for the same type, class
and amount of use or service of the District Sewer System, provided,
however, that the Authority may include in such rates provisions,
in its discretion, for surcharges giving weight to the characteristics
of the sewage and other wastes discharged or disposed of through the
District Sewer System and any other special matter affecting the cost
of treatment and disposal of such sewage and other wastes, including
but not limited to chlorine demand, biochemical oxygen demand, concentration
of solids and chemicals composition.
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ARTICLE IX
CALCULATION OF ANNUAL RATES
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On or before the fifteenth day of January, or in each Fiscal
Year, the Authority shall calculate the rate or rates upon which are
to be based the payment to be made to it during the current year pursuant
to the terms and provisions of this Agreement. Such rates shall be
established in accordance with Article VIII and with the Act and shall
include such surcharges as the Authority in its discretion may determine
and shall be calculated to provide such amount as the Authority reasonably
estimates will be required (in addition to any funds on hand applicable
to such purposes) during such Fiscal Year for payment and security
of the principal of and interest on any of the bonds or other obligations
authorized by the Act and for the cost of the operation, maintenance,
depreciation and repair of the District Sewer System, including establishment
and maintenance of working capital and reserves. The provisions of
this Article IX and of Article VIII and Article X and of Sections
43, 45 and 47 of the Act shall be deemed a contract between the Authority
and the holders of all bonds or other obligations authorized by the
Act, and issued by the Authority and shall be enforceable by appropriate
proceedings at law or in equity.
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ARTICLE X
CALCULATION AND CERTIFICATION OF ANNUAL PAYMENTS
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A
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On or before the seventeenth day of January in any year beginning
after the effective date of this Agreement, the Authority shall calculate
and certify to the Municipality the amount of money which it shall
be required to pay to the Authority during the year. As to the Municipality,
such amount shall be calculated by the Authority by applying said
rate or rates (including any applicable surcharges as provided for
in Article VIII and Article IX) to the volume and characteristics
of the sewage delivered and discharged in to the District Sewer System
by the Municipality during the year ending on the last day of December,
next preceding as shown by the records of the Authority or, if there
is no record covering such deliver and discharge during a full year,
then (1) if the sewer or drainage system of the Municipality or the
outfall thereof has not previously been connected with the District
Sewer System as provided in Article IV, to the volume of sewage (if
any) which the Authority then estimates will be delivered and declared
by the Municipality into the District Sewer System during the year
following such last day of December, or (2) if the sewer or drainage
system of the Municipality or the outfall thereof has previously been
connected with the District Sewer System as provided in Article IV,
to the volume of sewage which the Authority them estimates will be
delivered and discharged by the Municipality into the District Sewer
System during the first full year following the making of such connection.
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B
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Notwithstanding the foregoing provisions of this Article, the
amount of money certified pursuant to the paragraph A of this Article,
to the Municipality in each year shall in no event be less than the
amount (hereinafter referred to as the "Base Charge") obtained by
aggregating (1) the principal and interest payable by the Authority
in such year with respect to bonds or other obligations issued to
finance costs in connection with the Englewood Cliffs Extension plus
such part of the costs estimated by the Authority for such year of
the operation, maintenance, depreciation and repair of the District
Sewer System as is properly attributable to the Englewood Cliffs Extension
or the sewage and other wastes delivered and discharged into the Englewood
Cliffs Extension, and deducting therefrom (2) the amount, if any,
calculated by applying the rate or rates referred to in said paragraph
A to the volume of the sewage delivered during the year ending on
the last day of December next proceeding by the Municipality into
sewers or other facilities owned by the City of Englewood or Borough
of Tenafly discharging into the District Sewer System as shown by
any meters or other devices, satisfactory to the Authority, for measuring
such volume which shall have been installed by or at the expense of
the Municipality, and if with respect to any year the Base Charge
shall exceed the amount calculated in or for such year pursuant to
said paragraph A, the Municipality shall in such year pay to the Authority
as provided in this Agreement the amount of the said Base Charge and
the amount of said Base Charge shall in such year be certified to
the Municipality by the Authority as provided in said paragraph A
instead of the said amount calculated pursuant to said paragraph A.
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ARTICLE XI
PAYMENTS BY MUNICIPALITY
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A
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The Municipality shall in each year make provision for all payments
to become due from it to the Authority pursuant to Article X and shall
pay to the Authority for the services rendered or to be rendered to
it in the disposal of sewage, in each year in equal quarterly payments
as hereinafter stated, the amount of money certified to it in or for
such year by the Authority pursuant to said Article X. Such equal
quarterly payments shall be due on and be made on or before the first
days of February, May, August and November of each year.
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B
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In any part of any such installment or payment due to the Authority
from a Municipality shall remain unpaid for 30 days following its
due date, the Municipality shall be charged with and pay to the Authority
interest on the amount unpaid from its due date until paid at the
rate of 8% per annum, and the Authority in its discretion and without
releasing the Municipality from any obligation hereunder may refuse
to permit the Municipality to discharge sewage into the District Sewer
System during the period of such default and, at the expense of the
Municipality, may shut off from the District Sewer System, and upon
the curing of such default reconnect, the sewer or drainage system
of the Municipality or outfall thereof.
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C
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The provisions of this Article XI and Section 57 of the Act
shall be deemed a contract between the Municipality and the holders
of all bonds authorized by the Act and shall be enforceable by appropriate
action at law or suit in equity.
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ARTICLE XII
RECORDS OF AUTHORITY
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The Authority shall make and keep permanent records of the rates
established by the Authority and the volume of sewage delivered and
discharged into the District Sewer System by the Municipality and
all other users of the District Sewer System.
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ARTICLE XIII
TERM OF CONTRACT
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This Agreement is perpetual in time, provided, however, that
this Agreement shall be null and void and have no further force and
effect on or after December 31, 1956, unless the Authority shall have
at that time commenced the construction and acquisition of the Englewood
Cliffs Extension or some part thereof.
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ARTICLE XIV
ENLARGEMENT AND EXPANSION OF DISTRICT SEWER SYSTEM
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The District Sewer System may be enlarged and expanded and such
District Sewer System so enlarged and expanded shall be the District
Sewer System for all the purposes of this Agreement.
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ARTICLE XV
REMEDIES BY AUTHORITY
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Every obligation assumed by or imposed upon the Municipality
by this Agreement or pursuant to the Act shall be enforceable by the
Authority by proceeding in lieu of prerogative writ or other appropriate
action or proceeding instituted by the Authority.
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ARTICLE XVI
CONTRACTS WITH PRIVATE SEWER COMPANIES AND INDUSTRIES
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Nothing in this Agreement shall be construed to prevent the
Authority from entering into agreements in accordance with the Act
with any private sewer company or industry or with any other municipality
for the treatment and disposal through the District Sewer System or
otherwise of sewage or other wastes.
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ARTICLE XVII
EFFECTIVE DATE
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Upon the execution of this Agreement by the Municipality and
by the Authority, the same shall be in full force and effect and be
legally binding upon the Authority and upon the Municipality.
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ARTICLE XVIII
PRIOR AGREEMENTS NOT AFFECTED
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This Agreement shall not be construed to alter, amend, modify,
or supersede the terms of the certain agreements dated as of November
23, 1948 and November 13, 1953, between the Authority and municipal
corporations of the State of New Jersey situate in the County of Bergen,
but said agreements remain in full force and effect.
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ARTICLE XIX
EXECUTION OF COUNTERPARTS
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This Agreement may be executed in several counterparts, all
or any of which shall be regarded for all purposes as one original
and shall constitute and be but one and the same instrument.
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IN WITNESS WHEREOF, the Municipality and the Authority have
caused their respective corporate seals to be hereunto affixed and
attested and these presents to be signed in their respective corporate
names by their respective officers thereunto duly authorized and this
Agreement to be dated as of the day and year first above written.
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BERGEN COUNTY SEWER AUTHORITY
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By:
Harry E. Forsthoff. Chairman
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ATTEST:
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BOROUGH OF ENGLEWOOD CLIFFS
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By:
Mayor
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ATTEST:
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Borough Clerk
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