[HISTORY: Adopted by the Borough Council
of the Borough of Eatontown as indicated in article histories. Amendments
noted where applicable.]
[Adopted 11-8-2006 by Ord. No. 35-2006; amended in its entirety 4-9-2008 by Ord. No. 08-2008]
A.
N.J.S.A. 19:44A-20.4, 20.5 et seq. went into effect
January 1, 2006, and determined new procedures for awarding contracts
in excess of $17,500 for goods and services, including professional
services, which are not subject to bidding requirements under the
Local Public Contracts Law.[1]
[1]
Editor's Note: See N.J.S.A. 40A:11-1 et seq.
B.
The aforesaid state statute addresses two types of
contract processes, one known as the "non-fair and open" process of
contract awards and the other the "fair and open" process of contract
awards.
C.
Council had previously approved of the "fair and open"
process for the year 2006 by resolution and further approved by ordinance
the same process for 2007 and future years by ordinance adopted by
the Borough Council on 11-8-2006 and identified as Ordinance No. 35-2006.
D.
The Borough would like to continue to undertake a
"fair and open" process in awarding contracts for professional services
and seek public solicitation of qualifications from all professionals
for all professional positions to be filled by the Borough pursuant
to N.J.S.A. 19:44A-20.5 on an annual basis, or when needed.
The governing body hereby authorizes the Borough
Clerk on an annual basis to publicly advertise in the newspaper named
as the official newspaper of the Borough of Eatontown and publicly
solicit qualifications which will be established as the basis for
an award of professional contracts for all professional positions
sought by the Mayor and Council during reorganization in January of
each year, or at any time when professional services are sought, as
well as all professional positions awarded by boards within the jurisdiction
of the governing body of the Borough of Eatontown.
The Borough Clerk will follow the procedures
for solicitation set forth by N.J.S.A. 19:44A-20.4 et seq. (20.5 for
municipal entity), which requires public advertising for qualifications,
establishing a disclosure process documented in writing prior to any
solicitation and publicly opening said qualifications and referring
the same to the Mayor and Council or the appropriate board of authority
for the selection and awarding of contracts. All solicitations shall
include specifications for professionals prepared by the Borough Administrator
in conjunction with the Borough Attorney and approved by the Mayor
and Council and shall require further that all professional proposals
submitted shall include a proposed professional contract and rate
schedule.
The Borough Attorney shall prepare the necessary
notice for publication, and the Borough Attorney and the Borough Administrator
shall prepare the necessary criteria to be used by the Council along
with specifications as set forth above for the "basis of award" per
the requirements of N.J.S.A. 19:44A-20.4, 20.5 et seq. and as recommended
by the Division of Local Government Services of the State of New Jersey.
The awarding of said contract shall be based on compliance with said
qualifications and specifications and submission of a proposed contract
and rate schedule. The proposed contract and rate schedule shall be
one factor, along with qualifications and compliance with specifications,
for consideration by Council in awarding a contract, and no one factor,
including the rate schedule proposed by a professional, shall be dispositive.
[1]
Editor's Note: Former § 57-5, Standard for fair
and open process, was repealed 1-25-2023 by Ord. No. 02-2023.
[Adopted 3-11-2009 by Ord. No. 02-2009[1]]
[1]
Editor's Note: This ordinance was originally
adopted as Ch. 235 but was renumbered to maintain the organization
of the Code.
[1]
Editor's Note: Former § 57-6, Prohibition on awarding
public contracts to certain contributors, was repealed 11-9-2023 by Ord. No. 30-2023.
[Amended 1-25-2023 by Ord. No. 02-2023]
This article does not apply retroactively. Political
contributions, whether monetary or in-kind, made prior to the effective
date of this article shall be deemed to be a violation of this article.
A.
Any business entity seeking a contract with the Borough
shall file the disclosure statements as required by P.L.2005, c. 271
("Chapter 271 disclosure forms"),[1] which must be filed no later than 10 days prior to the
awarding of a contract or agreement to procure services. The Borough
or any of its purchasing agents or agencies, as the case may be, shall
maintain a copy of all Chapter 271 disclosure forms and such documents
shall be subject to the requirements of the Open Public Records Act.[2]
B.
The business entity will make the statement knowing
that under penalty of perjury that it has not made a contribution
in violation of the article hereof and has not made or solicited contributions
through intermediaries, third parties, immediate relatives, candidate
committees, or political action committees for the purpose of concealing
the source of the contributor(s).
C.
Filing an incorrect Chapter 271 disclosure form may
be deemed a breach of the contract and shall result in the business
entity being debarred from being awarded any Borough contract for
a period of one year.
D.
The business entity shall have a continuing duty to
report any violations of this article that may occur during the duration
of a contract. The certification required under this subsection shall
be made prior to entry into the contract or agreement with the Borough
of Eatontown and shall be in addition to any other certifications
that may be required by any other provision of law. At a minimum,
completion of the Chapter 271 disclosure statement will be an annual
requirement of the business entity.
E.
The annual disclosure form shall be filed within 20
days following each anniversary of the proposal, if for a multiyear
agreement.
A.
Any other provision of law to the contrary notwithstanding, the Borough of Eatontown 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 developer and/or redeveloper, as defined in Subsection C below for the planning, replanning, construction or undertaking of any development and/or redevelopment project including the acquisition or leasing of any public property in conjunction with the redevelopment of any area within the Borough of Eatontown pursuant to the Local Redevelopment and Housing Law[1] and/or the Municipal Land Use Law,[2] if that developer and/or redeveloper has knowingly solicited
or made any contribution of money, pledge of contribution, including
in-kind contributions (as such term is defined within N.J.A.C. 19:25-1.7),
in excess of the thresholds specified in N.J.S.A. 19:44A-20.4 et seq.,
above, within one calendar year immediately preceding the date of
entering into the developer's agreement, redevelopment agreement,
amended agreement, or contract (hereinafter "agreement"):
[Amended 1-25-2023 by Ord. No. 02-2023]
(1)
Any Borough candidate or holder of public office having
ultimate responsibility for the award of the contract; or
(2)
Any campaign committee of such a candidate of holder
of public office; or
(3)
Any Borough of Eatontown municipal party committee;
or
(4)
Any county party committee within the State of New
Jersey; or
(5)
Any candidate committee, state political party committee,
legislative leadership committee, continuing political committee or
political action committee (PAC) organized under § 527 of
the Internal Revenue Code that is organized for the purpose of supporting
Borough candidates or Borough officeholders and/or that has within
the last calendar year provided financial or in-kind support to Borough
of Eatontown municipal elections and/or Borough of Eatontown municipal
or Borough parties.
B.
All developer agreements or amendments thereto and/or redevelopment agreements entered into by the Borough of Eatontown shall contain a provision prohibiting developers and/or redevelopers, as defined in Subsection C below, to solicit or make any contribution in excess of the thresholds specified in § 57-6D above.
C.
A "developer" or "redeveloper" means any person, firm,
corporation, partnership, limited-liability company, organization,
association, or public body that shall enter into or propose to enter
into an agreement with a municipality or other redevelopment entity
for the development of property pursuant to the Municipal Land Use
Law,[3] 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 the Local Redevelopment and Housing Law,[4] or for any construction or other work forming part of
a development or redevelopment or rehabilitation project. For the
purposes of this section, the definition of a "developer" or "redeveloper"
includes all principals who own 1% or more of the equity in the corporation
or business trust, partners, and officers in the aggregate employed
by the developer and/or redeveloper as well as any affiliates or subsidiaries
directly controlled by the developer or redeveloper. Spouses and any
child/children shall also be included.
A.
Prior to arranging and entering into a developer's
agreement or redevelopment agreement with any developer or redeveloper,
the Borough of Eatontown or any of its purchasing agents or agencies
or independent authorities, as the case may be, shall receive a sworn
statement from the developer or redeveloper that the developer or
redeveloper has not made any contribution in violation of § 57-6D
above. The Borough of Eatontown, through any appropriate redevelopment
agent, agency, officer, authority, or department, shall be responsible
for informing the Mayor and the Borough Council that the aforementioned
sworn statement has been received and that the developer or redeveloper
is not in violation of this article, prior to entering into any developer's
agreement or redevelopment agreement. Furthermore, the developer or
redeveloper shall have a continuing duty to report any violations
of this article that may occur while arranging and entering into the
developer's agreement or redevelopment agreement, and until all specified
terms or time period of the agreement have been completed. The certification
required under this article 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.
B.
It shall be the Borough's continuing responsibility
to give notice of this article to all developers who file any application
with the municipality, its land use boards and/or any of its political
subdivisions, including but not limited to the Planning Board or Zoning
Board, to develop any tract of land within the municipality and/or
when the municipality gives notice of redevelopment pursuant to N.J.S.A.
40A:12A-6 and/or when the municipality adopts a ordinance directing
the Planning Board to prepare a redevelopment plan and at the time
that the municipality adopts the ordinance to implement the redevelopment
plan.
A.
The contribution and disclosure requirements in this
article shall apply to all developers and/or redevelopers as well
as professionals, consultants or lobbyists contracted or employed
by the developer and/or redeveloper including those ultimately designated
by the developer/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 developer's agreement or
redevelopment agreement or any amendments or modifications thereto;
and
(4)
Performing the terms of a developer's agreement or
redevelopment agreement.
B.
It shall be a breach of the consultant's contract
with the developer and/or redeveloper, and shall require immediate
termination, for a consultant to violate the contribution limits and
disclosure requirements in this article.
C.
A developer or redeveloper who participates in, or
facilitates, the circumvention of the contribution restrictions through
consultants or professionals shall be deemed to be in breach of its
approvals with the land use board and/or the Borough.
A business entity, developer, or redeveloper, or Borough of Eatontown candidate or officeholder, or municipal, county or state party committee, candidate committee, legislative leadership committee, continuing political committee or PAC referenced in this article, may cure a violation of § 57-6 of this article, if, within 30 days after the applicable ELEC report, the business entity notifies the Borough of Eatontown in writing and seeks and receives reimbursement of the contribution from the relevant candidate or officeholder, municipal or county political party, state political party, candidate committee, legislative leadership committee, continuing political committee, or PAC referenced in this article.
A.
It shall be a breach of a contract with the Borough
of Eatontown for a business entity, developer or redeveloper to:
(1)
Make or solicit a contribution in violation of this
article;
(2)
Knowingly conceal or misrepresent a contribution given
or received;
(3)
Make or solicit a contribution through intermediaries
for the purpose of concealing or misrepresenting the source of the
contribution;
(4)
Make or solicit any contribution on the condition
of or with the agreement that it will be contributed to a campaign
committee of any candidate or holder of public office of the Borough
of Eatontown;
(5)
Engage or employ a lobbyist or consultant with the
intent or understanding that such lobbyist or consultant would make
any contribution, which, if made or solicited by the business entity
itself, would violate this article;
(6)
Fund contributions made by third parties, including
consultants, attorneys, family members and employees;
(7)
Engage in any exchange of contribution to circumvent
the intent of this article; or
(8)
Directly or indirectly, through or by any other person
or means, do any act which would violate this article.
B.
Furthermore, any business entity, developer or redeveloper that violates § 57-13A(2) through (8) shall be debarred from eligibility for future Borough of Eatontown contracts or for entering into a developer's agreement or redevelopment agreement for a period of one calendar year from the date of the violation.
[1]
Editor's Note: Former § 57-14, Antiwheeling restrictions,
was repealed 1-25-2023 by Ord. No. 02-2023.
If any provision of this article, or the application
of any such provision to any person or circumstances, shall be held
invalid by a court of the United States or this state, or by any administrative
agency of the United States or this state, the remaining provisions
shall remain in effect.
This article supplements, but does not supersede,
the contribution disclosure requirements under P.L.2004, c 19, s.7
amended P.L.2005, c. 51, s. 15 (N.J.S.A. 19:44A-20.8) and P.L.2005,
c. 271, s. 2 (N.J.S.A. 19:44A-20.26), for contracts awarded through
other than a fair and open process. All ordinances or parts of ordinances
that are inconsistent with any provisions of this article are hereby
repealed to the extent of such inconsistencies.
A.
The regulatory and penalty provisions of this article
shall be incorporated by reference into all Borough of Eatontown contracts
for professional services and extraordinary unspecifiable services
and developer's agreements and redevelopment agreements.
