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Resolution of the City of Jersey City, N.J.

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Resolution of the City of Jersey City, N.J.

File No.

Agenda No.

Approved:

Res. 21-533 10.21

RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN NEWPORT CENTRE, LLC (LICENSOR) AND THE CITY OF JERSEY CITY (CITY) TO ENABLE ACCESS THROUGH THE MALL AT 8TH STREET AND MARIN BLVD, 9TH STREET AND MARIN BLVD.

AND WASHINGTON BLVD.

COUNCIL offered and moved adoption of the following resolution:

WHEREAS, pursuant to Jersey City Planning Board Preliminary Site Plan Review S.P. 31-85 dated July 16, 1985 and the Newport Redevelopment Plan adopted in February, 1985 and amended through June 27, 2012 (the “Resolutions”), the Licensor is currently required to maintain a path of public access through the Newport Centre Mall and the Newport Centre Mall Garage during all hours that the New Jersey Port Authority Trans-Hudson Station (the “NJ PATH”) in Newport is in operation beginning at the corner of 8th Street and Marin Boulevard and ending at the east side of an alleyway that abuts 525 Washington Street (the “Existing Access Route”);

WHEREAS, since the date of the Resolutions, additional development has occurred on the northern side of the Hamilton Park Neighborhood that has increased public demand for an access point to the NJ PATH through the Newport Centre Mall and the Newport Centre Mall Garage and, at the request of the City, an additional path of public access starting at the corner of 9th Street and Marin Boulevard (the “Connector Access Route”) and connecting with the Existing Access Route, which currently existing public access path is required by the Resolutions, has been agreed to by Licensor;

WHEREAS, Licensor and the City agree that, as of the date of this Agreement and for so long as this Agreement is in full force and effect, this Agreement shall supersede and replace the Resolutions as well as any easement or other agreement in effect, if any, that require Licensor to maintain a path of public access through the Newport Centre Mall and the Newport Centre Mall Garage during all hours that the NJ PATH is in operation in Newport (collectively, the “Existing Agreements”);

and

WHEREAS, Licensor and the City desire to memorialize the agreement with respect to the non-exclusive license from Licensor to the City for public access so that the City (and its employees, agents and contractors) and/or the public may enter onto property owned by the Licensor, which is known as the Newport Centre Mall and the Newport Centre Mall Garage, to use the Existing Access Route and the Connector Access Route (hereinafter collectively referred to as the

“Premises” and additionally depicted on Exhibit A) solely for the purpose of pedestrian ingress and egress to and from the NJ PATH during the hours that the NJ PATH is in operation in Newport; and

WHEREAS, the City agrees to provide three (3) security guards to patrol three (3) entrance/exit points on the Premises seven (7) days per week outside of Operating Hours at three (3) entrance/exit points on the Premises; and

WHEREAS, the agreement requires the City to hold harmless and indemnify Licensor from all risk of loss and/or damage to property or injury to or death of persons arising out of the City’s and Public's use of Licensor’s Property in accordance with the requirements of the agreement attached hereto ; and

WHEREAS, the License Agreement requires that the City provide a Certificate of Insurance that names Licensor as an additional insured.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF JERSEY CITY AS FOLLOWS:

1. The City shall provide three (3) security guards to patrol three (3) entrance/exit points on the Premises seven (7) days per week outside of Operating Hours at three (3) entrance/exit points on the Premises.

2. Subject to such modifications as may be deemed necessary or appropriate by Corporation Counsel, the Mayor or Business Administrator is authorized to execute the agreement attached hereto.

3. The office of Risk Management is authorized to add Newport Centre, LLC. as an “additional insured” party to the

City’s insurance policies in accordance with the requirements of the agreement attached hereto.

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Res. 21-533 Approved:

Resolution authorizing the execution of an agreement between Newport Centre, LLC (Licensor) and the City of Jersey City (City) to enable access through the mall at 8th Street and Marin Blvd, 9th Street and Marin Blvd. and Washington Blvd.

APPROVED AS TO LEGAL FORM

Business Administrator Corporation Counsel

☐ Certification Required

RECORD OF COUNCIL VOTE –

AYE NAY N.V. Absent AYE NAY N.V. Absent AYE NAY N.V. Absent N.V. –

RIDLEY SALEH LAVARRO (Abstain)

PRINZ-AREY SOLOMON RIVERA

BOGGIANO ROBINSON WATTERMAN,

PRES

Adopted at a meeting of the Municipal Council of the City of Jersey.

Joyce E. Watterman, President of Council Sean J. Gallagher, City Clerk

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Res. 21-533 Approved:

Resolution authorizing the execution of an agreement between Newport Centre, LLC (Licensor) and the City of Jersey City (City) to enable access through the mall at 8th Street and Marin Blvd, 9th Street and Marin Blvd. and Washington Blvd.

RESOLUTION FACT SHEET -

This summary sheet is to be attached to the front of any resolution that is submitted for Council consideration. Incomplete or vague fact sheets will be returned with the resolution.

Project Manager

James Solomon, Councilperson 5204 jsolomon@jcnj.org

Division Municipal Council

Note: Project Manager must be available by phone during agenda meeting (Wednesday prior to council meeting @ 1:00 p.m.)

Purpose

This resolution shall authorize the City to execute an agreement with Newport Centre, LLC which shall govern the opening of an additional access path at 9th street through the Newport Mall for the purpose of accessing the Newport PATH station during off hours. In exchange for the additional access path, the City shall provide 3 security guards to cover the entrances/exits to the mall and indemnify and hold harmless Newport Centre, LLC for any security related matters as described in the agreement.

ATTACHMENTS:

AccessAndIndemAgreement.DRAFT.8

Approved by Status:

John McKinney, Attorney Approved - Jul 07 2021

John Metro, Acting Business Administrator Approved - Jul 09 2021

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This instrument prepared by ) and when recorded return to: ) )

Newport Center, LLC )

c/o Simon Property Group )

225 West Washington Street )

Indianapolis, IN 46204 )

Attn: Toni Di Giacomo )

)

SPACE ABOVE FOR RECORDER’S USE ACCESS AND INDEMNIFICATION AGREEMENT

THIS AGREEMENT (this “Agreement”) is made this ____ day of ___________, 2021 between the CITY OF JERSEY CITY, a municipal corporation of the State of New Jersey (hereinafter referred to as “City”) and NEWPORT CENTRE, LLC, a Delaware limited liability company (hereinafter referred to as “Licensor”).

WHEREAS, pursuant to Jersey City Planning Board Preliminary Site Plan Review S.P. 31-85 dated July 16, 1985 and the Newport Redevelopment Plan adopted in February, 1985 and amended through June 27, 2012 (the “Resolutions”), the Licensor is currently required to maintain a path of public access through the Newport Centre Mall and the Newport Centre Mall Garage during all hours that the New Jersey Port Authority Trans-Hudson Station (the “NJ PATH”) in Newport is in operation beginning at the corner of 8 th Street and Marin Boulevard and ending at the east side of an alleyway that abuts 525 Washington Street (the “Existing Access Route”);

WHEREAS, since the date of the Resolutions, additional development has occurred on the northern side of the Hamilton Park Neighborhood that has increased public demand for an access point to the NJ PATH through the Newport Centre Mall and the Newport Centre Mall Garage and, at the request of the City, an additional path of public access starting at the corner of 9 th Street and Marin Boulevard (the “Connector Access Route”) and connecting with the Existing Access Route, which currently existing public access path is required by the Resolutions, has been agreed to by Licensor;

WHEREAS, Licensor and the City agree that, as of the date of this Agreement and for so long as this Agreement is in full force and effect, this Agreement shall supersede and replace the Resolutions as well as any easement or other agreement in effect, if any, that require Licensor to maintain a path of public access through the Newport Centre Mall and the Newport Centre Mall Garage during all hours that the NJ PATH is in operation in Newport (collectively, the “Existing Agreements”); and

WHEREAS, Licensor and the City desire to memorialize the agreement with

respect to the non-exclusive license from Licensor to the City for public access so that the

City (and its employees, agents and contractors) and/or the public may enter onto

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property owned by the Licensor, which is known as the Newport Centre Mall and the Newport Centre Mall Garage, to use the Existing Access Route and the Connector Access Route (hereinafter collectively referred to as the “Premises” and additionally depicted on Exhibit A) solely for the purpose of pedestrian ingress and egress to and from the NJ PATH during the hours that the NJ PATH is in operation in Newport.

NOW, THEREFORE, in consideration of the covenants and mutual agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed as follows:

1. The above recitals are true and correct and are incorporated herein by this reference thereto.

2. Licensor hereby grants to the City a non-exclusive license for public access so that the City (and its employees, agents and contractors) and/or the public may enter onto property owned by the Licensor, which is known as the Newport Centre Mall and the Newport Centre Mall Garage, to use the Premises solely for the purpose of pedestrian ingress and egress to and from the NJ PATH during the hours that the NJ PATH is in operation in Newport. Use of the Premises for activities other than those listed hereinabove are permitted only upon the review and written approval of Licensor, which approval Licensor may grant or withhold in Licensor’s sole discretion. Licensor reserves the perpetual right to use the Premises for any purpose(s) not inconsistent with the license herein granted. During any period of casualty, condemnation, event of force majeure or any other external event such as, without limitation, a public health emergency, whereby Licensor is required to or advised to shut down all or any portion of the Newport Centre Mall and/or the Newport Centre Mall Garage, then Licensor shall be permitted to shut down the Premises and all access thereto during such period (including such additional period as is necessary to effectuate any repairs in relation thereto) and the same shall not be deemed a breach or violation of this Agreement.

3. Any damage to the Premises or the surrounding area resulting from or in any way arising out of the use of the Premises by the City (and its employees, agents and contractors) and/or the public will be repaired and replaced by the City at its own cost and expense. If the City fails to make such repairs or replacements within thirty (30) days after receipt of written notice from Licensor of the need for such repairs or replacements, then Licensor shall have the right to make such repairs and replacements and the City agrees to reimburse the Licensor for all costs and expenses thereof within thirty (30) days of presentation of a bill therefore. Notwithstanding the foregoing to the contrary, if the repairs and replacements are of an emergent nature (danger to life or property), then Licensor can make such repairs and replacements without notice to the City and the City agrees to reimburse the Licensor for all costs and expenses thereof in accordance with this Paragraph 3.

4. The City acknowledges that the Premises may be used by the public outside of

Operating Hours (as hereinafter defined) and, as such, the City hereby agrees that it shall

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be responsible for, at its sole cost, providing security measures at three (3) entrance/exit points on the Premises and the surrounding area seven (7) days per week outside of Operating Hours. As of the date of this Agreement, the City agrees to provide three (3) security guards to patrol three (3) entrance/exit points on the Premises seven (7) days per week outside of Operating Hours; security guard patrol shall be coordinated with the Newport Centre Mall Manager. “Operating Hours” currently means Monday thru Thursday 11am-8pm, Friday thru Saturday 10am-9pm and Sunday 12am-7pm; the Operating Hours are subject to change by Licensor in Licensor’s sole discretion. If the City fails to provide such security measures as outlined in this Paragraph 4 or, in Licensor’s reasonable discretion, such security measures provided by the City are inadequate, then such failure shall be a default under this Agreement permitting Licensor to exercise all remedies available to it under this Agreement or at law or in equity including, without limitation upon notice to the City, the right to terminate this Agreement. The City acknowledges that Licensor shall not be responsible for the personal safety of the City (and its employees, agents and contractors) and/or the public on or about the Premises and that the Premises is used at the aforementioned parties’ own risk. The City agrees to assume any and all risk of loss or damage of any kind whatsoever to property or injury to or death including wrongful death of persons arising out of the City’s (its employees, agents and contractors) use of the Premises and/or the public’s use of the Premises, and/or as a result of any conditions created by the City (its employees, agents and contractors) and/or by the public in the Premises. The City further agrees to indemnify and hold harmless the Licensor, its partners, shareholders, trustees, officials, officers, directors, employees, members, managers or agents from and against any and all claims, suits and demands based upon or arising out of the City’s (its employees, agents and contractors) use and/or the public’s use of the Premises, and for all costs and expenses incurred by them in the defense, settlement or satisfaction of any such claims, including attorney's fees and costs of suit. The City and Licensor acknowledge that the foregoing indemnity and hold harmless obligations are applicable to (i) the negligence or willful misconduct of the City (its employees, agents and contractors), (ii) the City’s (its employees, agents and contractors) use and/or the public’s use of the Premises, and (iii) the security measures implemented by the City including, without limitation, the actions or inactions of the security guards. Notwithstanding the foregoing, the City and Licensor further acknowledge that the foregoing indemnity and hold harmless obligations of the City do not include any instances that involve Licensor’s negligence or disregard for the reasonable maintenance of the Premises. If so directed by Licensor, the City shall, at no cost or expense to the Licensor, defend against such claims.

The obligations of the City to indemnify, hold harmless and defend Licensor set forth in this Paragraph 4 shall survive the expiration or earlier termination of this Agreement.

5. Nothing herein contained shall be understood or construed to create or grant any

third-party benefits, rights or property interest unless the person claiming such rights is

identified herein and the rights claimed are expressly set forth herein.

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6. The permission to use the Premises is not intended to grant permission to use any other property of Licensor, nor is it intended to relieve the City from its responsibility to procure and maintain in effect all other requisite permissions and approvals.

7. The entire agreement between the Licensor and City is contained herein and no modifications hereof shall be effective unless in writing, signed by the Licensor and the City.

8. Licensor partners, shareholders, trustees, officials, officers, directors, employees, members, managers, or agents shall not be charged personally with any liability under any term or provision of this agreement or because of its execution or attempted execution or because of any breach or alleged breach thereof. Licensor’s liability hereunder shall be limited to the equity interest of Licensor in the Premises, and no other assets of Licensor shall be subject to any liability or claim arising out of this Agreement.

In no event shall Licensor be liable for any consequential or punitive damages.

9. The Licensor shall not be responsible for any loss or theft sustained by the City or any of its guests, invitees, licensees, employees, agents or contractors and/or the public during the aforementioned parties’ use of the Premises.

10. Upon the execution of this Agreement, at least ten (10) days prior to the cancellation or termination of the City’s insurance policies and within ten (10) days after Licensor’s written request therefor, the City shall provide Licensor with a certificate of insurance (the “COI”) that shall name the Licensor and its managing agent, which managing agent is presently Simon Property Group, Inc., as additional insureds thereunder, and which COI shall also provide that no such insurance may be canceled without at least thirty (30) days' prior written notice to Licensor. The amount of the insurance required to be maintained by the City while this Agreement is in effect shall be as follows:

a) Commercial General Liability in the amount of $1,000,000 per occurrence and $2,000,000 in aggregate.

b) Workers Compensation with NJ statutory limits and Employer’s Liability in the amount of $1,000,000.

All accidents or injuries to person, or any damages to the Premises, occurring as a result of or in connection with the public’s use of the Premises shall be reported immediately to the Licensor and the City of Jersey City, Division of Risk Management together with all information required by the City and Licensor on prescribed forms to be provided by the City and Licensor.

11. The City shall not be permitted to install any equipment within the Premises

unless it receives Licensor’s prior consent thereto in writing, which consent may be

granted or withheld in Licensor’s sole discretion. All equipment installed or used by the

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City in connection with its use of the Premises shall remain the property of the City and shall be removed by it at the expiration or earlier termination of this Agreement. In the event that the same is not removed within thirty (30) days after receipt of written notice from Licensor of the need for such removal, the same shall be deemed abandoned and the Licensor shall have the right to dispose of the same and charge the City for any cost of disposing thereof within thirty (30) days of presentation of a bill therefore.

12. Upon the execution of this Agreement, the City shall provide notice in writing to the Licensor the name(s) of authorized representative(s) of the City who shall be responsible for adherence to the terms and conditions of this Agreement before, during and after the date of this Agreement. The City shall provide Licensor with written notice of any change in such names while this Agreement is in place no later than thirty (30) days after such change. No other persons are to speak or act for the City.

13. All notices between the parties hereto shall be addressed and delivered to the following:

Licensor: Newport Centre, LLC

c/o Simon Property Group 225 West Washington Street Indianapolis, IN 46204 Attn: General Counsel With a copy to: Newport Centre, LLC

c/o Simon Property Group 225 West Washington Street Indianapolis, IN 46204 Attn: Legal Development And also to: Newport Centre, LLC

c/o Simon Property Group 30 Mall Drive West Jersey City, NJ 07302 Attn: Mall Manager

City: City of Jersey City

280 Grove Street Jersey City, NJ 07302

Attn: John Metro – Business Administrator

All notices shall be in writing and shall be given by certified mail, return receipt requested,

postage prepaid, or by Federal Express or other nationally recognized overnight delivery

service. Any notice given in conformance with the foregoing shall be deemed received on

the date on which the noticed party receives or refuses receipt of the notice. Any party may,

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at any time or from time to time, designate in writing a substitute address, and thereafter notices shall be directed to such substitute address for that above set forth.

14. The City shall not assign this Agreement, or any part thereof, or occupy the property for any other reason or reasons than herein stipulated in this Agreement.

15. The City agrees that, at any time and from time to time after the date of this Agreement, to execute, acknowledge where appropriate, and deliver such further instruments and documents and to take such other actions as the Licensor may reasonably request in order to (i) carry out the terms of this Agreement (including, without limitation, recording a memorandum of termination), and (ii) acknowledge the superiority of this Agreement over the Existing Agreements while this Agreement is in full force and effect. The obligations of the City in this Paragraph 15 shall survive the expiration or earlier termination of this Agreement.

16. This Agreement, when properly executed, shall (i) run with the land until its expiration or earlier termination, and (ii) be binding upon and inure to benefit of the parties hereto, their respective successors and assigns as well as the contractors and agents of the City. Licensor shall inform any purchasers of the Newport Centre Mall and/or Newport Centre Mall Garage of the existence of this Agreement. Licensor shall inform the City by written notice of any transfer of ownership interest in the Newport Centre Mall or Newport Centre Mall Garage not later than thirty (30) days after such transfer occurs. Such notice shall include the office address and contact information for the new ownership entity.

17. In addition to all rights and remedies to which Licensor may be entitled at law or in equity, in the event that the City defaults in any of its obligations under this Agreement, Licensor shall have the right, upon notice to the City, to immediately terminate this Agreement and the license granted hereunder, and Licensor shall have the right, at its option, to re-enter the Premises and to remove all personalty, property and equipment of the City, at the sole cost and expense of the City. Failure of Licensor to insist upon the strict performance of any provision of this Agreement or failure to exercise any right of Licensor under this Agreement shall not be construed as a waiver for the future of any such provision or right. No provision of this Agreement shall be deemed to have been waived unless such waiver is in writing signed by the party to be so charged. In the event of any suit, action or proceeding at law or in equity, by either of the parties hereto against the other by reason of any manner or thing arising out of this Agreement, the prevailing party shall have the right to recover all court costs and other legal expenses, including without limitation reasonable attorneys’ fees and expert witness fees, incurred in connection with such matter.

18. The City shall use its best efforts to ensure that the City’s (its employees, agents

and contractors) use of the Premises by it and by the public shall not interfere with the

operation or use of Newport Centre Mall or Newport Centre Mall Garage by Licensor

and its agents, employees and contractors, and/or the operation or use by tenants and

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occupants thereof and their respective employees, customers and invitees within the Newport Centre Mall or Newport Centre Mall Garage in which the Premises are located.

19. This Agreement shall terminate on the earlier to occur of (i) ten (10) years after the date of this Agreement, or (ii) thirty (30) days after the date the NJ PATH in Newport has been abandoned, completely vacated or ceases to be in its present location and available for public use; provided, however, this shall in no way limit or restrict Licensor’s right to terminate this Agreement for a default by the City or as a result of the security measures provided by the City being deemed inadequate by Licensor. The City shall notify Licensor no less than thirty (30) days after abandonment, vacation and/or cessation of use of the NJ PATH in Newport.

20. The City may, at its sole cost and expense, cause this Agreement to be recorded in Hudson County, New York. The legal description for the Newport Centre Mall and the Newport Centre Mall Garage is attached hereto as Exhibit B.

21. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original agreement and both of which shall constitute one and the same agreement.

[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first written above.

(LICENSOR): NEWPORT CENTRE, LLC,

a Delaware limited liability company Attest:

By: ________________________ By: ______________________________

Name: ________________________ Name: ______________________________

Title: ________________________ Title: ______________________________

STATE OF INDIANA )

)

COUNTY OF MARION )

On this ____ day of ______________, 2021 before me, the undersigned, personally appeared _________________________________, personally known to me to be the _________________________________ of Newport Center, LLC, a Delaware limited liability company, and that said instrument was signed on behalf of said limited liability company, and such person acknowledged said instrument to be the free act and deed of said limited liability company.

______________________________

Notary Public

My Commission expires: _________

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(CITY): CITY OF JERSEY CITY,

a municipal corporation of the State of New

Attest: Jersey

By: ________________________ By: ______________________________

Name: Sam Gallagher Name: John Metro

Title: City Clerk Title: Business Administrator

STATE OF NEW JERSEY ) )

COUNTY OF HUDSON )

On this ____ day of ______________, 2021 before me, the undersigned, personally appeared _________________________________, personally known to me to be the _________________________________ of the City of Jersey City, and that said instrument was signed on behalf of said city, and such person acknowledged said instrument to be the free act and deed of said city.

______________________________

Notary Public

My Commission expires: _________

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EXHIBIT A

(SEE ATTACHED)

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EXHIBIT B

(SEE ATTACHED)

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Legal Descriptions

Newport Centre Mall Legal Description

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[END OF LEGAL DESCRIPTION FOR NEWPORT CENTRE MALL]

[LEGAL DESCRIPTION FOR NEWPORT CENTRE MALL GARAGE ON FOLLOWING

PAGES]

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Newport Centre Mall Garage Legal Description

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