PUBLIC NOTICE
MILLBURN TOWNSHIP
MILLBURN TOWNSHIP COMMITTEE
ORDINANCE 2763-26
PUBLIC NOTICE is hereby given that the following Ordinance was submitted in writing, introduced, read by title and passed on first reading at a meeting of the Township Committee of the Township of Millburn, in the County of Essex on Wednesday, July 29, 2026. The ordinance will be considered for final passage and adoption at the public hearing held at a Township Committee meeting beginning at 7:00 p.m. on Tuesday, September 1, 2026 at the Millburn Education Center, 434 Millburn Avenue, Millburn, New Jersey when and where or at such time and place to which said meeting may be adjourned, all persons interested will be given an opportunity to be heard concerning said ordinance. The Millburn Education Center will open for this meeting beginning at 6:45PM and details on the meeting and agenda may be located at town hall, on our website
https://www.twp.millburn.nj.us/AgendaCenter
or by contacting the Municipal Clerk's Office at 973-564-7092.
BY ORDER OF THE TOWNSHIP COMMITTEE
Christine A. Gatti, RMC, Township Clerk
ORDINANCE NO. 2763-26
AN ORDINANCE OF THE TOWNSHIP OF MILLBURN, COUNTY OF ESSEX, STATE OF NEW JERSEY, ADOPTING THE SPRING STREET AND ESSEX STREET REDEVELOPMENT PLAN FOR BLOCK 1212, LOTS 4, 22, 24, 25, 26, AND 27, AND BLOCK 1207, LOT 7
WHEREAS, the Township Committee of the Township of Millburn (the “Township Committee”) has determined that exercising the redevelopment powers granted to municipalities under the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 through 40A:12A-89 (the “LRHL”), is an appropriate and effective means to facilitate the redevelopment of certain properties within the Township; and
WHEREAS, by Resolution 07-20, adopted on January 16, 2007, the Township Committee designated certain property, including Block 1212, Lots 4, 22, 24, 25, 26, and 27, and Block 1207, Lot 7, as an “Area in Need of Redevelopment” pursuant to the LRHL (the “Redevelopment Area”); and
WHEREAS, the Township requested the preparation of a redevelopment plan for the Redevelopment Area to establish a planning and regulatory framework for the redevelopment of a portion of the Township and its integration into the downtown fabric; and
WHEREAS, Topology, LLC prepared a redevelopment plan entitled “Spring Street and Essex Street Redevelopment Plan,” dated July 10, 2026, as may be further revised prior to final adoption (the “Redevelopment Plan”); and
WHEREAS, the Redevelopment Plan is intended to effectuate the planning goals of the Township of Millburn as identified in the 2018 Master Plan Reexamination and Update, the 2021 Millburn Downtown Vision Plan, and the Township’s affordable housing compliance efforts, and to establish standards for compact downtown mixed-income residential development with associated parking, public-realm, and related improvements; and
WHEREAS, the Redevelopment Plan is intended to create the realistic opportunity for the development of seventy-five (75) deed-restricted affordable rental dwelling units, subject to applicable affordability controls, redevelopment approvals, and any applicable order of the Superior Court of New Jersey in the Township’s Mount Laurel compliance proceedings; and
WHEREAS, pursuant to N.J.S.A. 40A:12A-7(e), prior to final adoption of a redevelopment plan by ordinance, the Township Committee must refer the proposed redevelopment plan to the Township of Millburn Planning Board for review and recommendation concerning whether the plan is substantially consistent with the Township Master Plan and otherwise complies with the LRHL; and
WHEREAS, upon receipt and review of the Planning Board’s recommendations concerning the Redevelopment Plan, the Township Committee has determined that adoption of the Redevelopment Plan is in the best interests of the Township and will facilitate the appropriate redevelopment of the Redevelopment Area.
NOW, THEREFORE, BE IT ORDAINED by the Township Committee of the Township of Millburn, in the County of Essex, State of New Jersey, as follows:
1. The foregoing recitals are incorporated herein as if set forth at length.
2. The Township of Millburn Planning Board is hereby directed to review the Redevelopment Plan, attached hereto as Exhibit A, and transmit its recommendations to the Township Committee pursuant to N.J.S.A. 40A:12A-7(e).
3. Contingent upon receipt and review of the Planning Board’s recommendations, the Redevelopment Plan is hereby adopted pursuant to N.J.S.A. 40A:12A-7.
4. The Redevelopment Plan shall supersede the Township of Millburn Development Regulations and Zoning Ordinance to the extent set forth in the Redevelopment Plan. Where the Redevelopment Plan is silent, the applicable standards of the Township Development Regulations and Zoning Ordinance shall apply.
5. The Redevelopment Plan shall be incorporated into, and made part of, the Township of Millburn Land Use Code as though codified and set forth fully therein.
6. The Township Clerk is hereby authorized and directed to forward a copy of this Ordinance and the Redevelopment Plan to the Planning Board for its review and report pursuant to N.J.S.A. 40A:12A-7(e), and to make a copy of this Ordinance and the Redevelopment Plan available for public inspection at the office of the Township Clerk during regular business hours.
7. The proper Township officials and professionals are hereby authorized and directed to take all actions necessary or appropriate to effectuate the intent and purpose of this Ordinance and the Redevelopment Plan.
8. If any section, subsection, paragraph, sentence, clause, phrase, or provision of this Ordinance shall be adjudged invalid by a court of competent jurisdiction, such adjudication shall apply only to the section, subsection, paragraph, sentence, clause, phrase, or provision so adjudged, and the remainder of this Ordinance shall remain valid and effective.
9. All ordinances or parts of ordinances inconsistent with this Ordinance are hereby repealed to the extent of such inconsistency.
10. This Ordinance shall take effect as provided by law.
Posting Details – Ordinance 2763-26
Millburn Township Committee
Date Posted on Millburn Public Notices Page and Bulletin Board: 07/31/2026
Date Notice Archived: 10/1/2026
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ORDINANCE 2763-26 – EXHIBIT A
REDEVELOPMENT PLAN
REDEVELOPMENT AND LAND DISPOSITION AGREEMENT
BY AND BETWEEN
THE TOWNSHIP OF MILLBURN AND
RPM DEVELOPMENT, LLC
Date: , 2026
TABLE OF EXHIBITS
EXHIBIT A- PROJECT DESCRIPTION
EXHIBIT B- ESTIMATED FINANCING PLAN
EXHIBIT C- FORM OF PROGRESS REPORT
EXHIBIT D- CERTIFICATE OF COMPLETION
EXHIBIT E- REDEVELOPER OWNERSHIP
EXHIBIT F- PROJECT SCHEDULE
EXHIBIT G- CONSTRUCTION MITIGATION PLAN
EXHIBIT H- REDEVELOPER’S DECLARATION
EXHIBIT I- PROPOSED SUBDIVISION PLAN
EXHIBIT J- ORDER OF JUDGMENT OF COMPLIANCE AND REPOSE
EXHIBIT K- REDEVELOPER’S PROJECT TEAM
EXHIBIT L- REDEVELOPER’S STATEMENT OF ONGOING PROCEEDINGS
EXHIBIT M- TOWNSHIP’S STATEMENT OF ONGOING PROCEEDINGS
EXHIBIT N- FAIR SHARE HOUSING SETTLEMENT AGREEMENT
EXHIBIT O- CONCEPT PLAN
EXHIBIT P- ESSEX AND SPRING STREET REDEVELOPMENT PLAN
THIS REDEVELOPMENT AGREEMENT AND LAND DISPOSITION
AGREEMENT (this “Redevelopment Agreement” or this “Agreement”) dated as of the
day of _, 2026 (the “Effective Date”) by and between THE TOWNSHIP OF MILLBURN (the “Township”), a municipal corporation of the State of New Jersey with offices located at Township of Millburn, 375 Millburn Avenue, Millburn, New Jersey 07041 and RPM DEVELOPMENT, LLC, a limited liability company of the State of New Jersey with offices at 77 Park Street, Montclair, New Jersey, 07042 and its permitted successors and assigns hereunder (the “Redeveloper”). Hereinafter the Township and the Redeveloper may be jointly referred to collectively as the “Parties” or each, a “Party.”
WITNESSETH
WHEREAS, the Township of Millburn (the “Township”) is the plaintiff/petitioner in the action captioned In the Matter of the Application of the Township of Millburn, Docket No. ESX-L-002778-18 (the “Mount Laurel Action”), pending in the Superior Court of New Jersey, Law Division, Essex County (the “Court”); and
WHEREAS, Redeveloper is an intervenor-defendant in the Mount Laurel Action and has asserted claims arising from the Township’s compliance with court orders, settlement agreements, and related affordable housing obligations; and
WHEREAS, Fair Share Housing Center (“FSHC”) is an intervenor in the Mount Laurel Action and a party to the global settlement described herein; and
WHEREAS, the Parties previously contemplated an affordable housing redevelopment concept at property commonly known as the Township Department of Public Works site, identified as Block 1207, Lots 7 and 9 on the Official Tax Maps of the Township (the “DPW Site”); and
WHEREAS, following negotiations among the Township, Redeveloper, and FSHC, the Parties determined an alternative redevelopment framework and location would better advance the Township’s affordable housing objectives, while allowing the DPW Site to remain available to the Township for municipal DPW purposes; and
WHEREAS, the Parties negotiated a settlement term sheet dated [ * ] (the “Term Sheet”) setting forth the material terms under which RPM will develop an affordable housing project at alternative sites within the Township, and under which the Township will satisfy a portion of its Third Round Mount Laurel obligations; and
WHEREAS, in furtherance of the Term Sheet, the Township, RPM, and FSHC entered into a Global Settlement Agreement dated July 29, 2026 (the “Settlement Agreement”), which provides for development of an affordable housing project and resolution and/or tolling and dismissal of certain claims as provided therein; and
WHEREAS, as the alternative locations for development under the Settlement Agreement, the Township shall make available a redevelopment project area at/near the intersections of Essex Street, Spring Street and Millburn Avenue consisting of Block 1212, Lots 4 (portion thereof), 24, 25, 26 and 27, and Block 1207, Lot 7, as identified on the Official Tax Maps of the Township (collectively, the “Project Site”); and
WHEREAS, Block 1212, Lot 24 (the “Private Parcel”) is not presently owned by the Township, and the Township has agreed to pursue acquisition of the Private Parcel (whether by negotiated purchase or, if necessary, through lawful exercise of eminent domain/condemnation authority) and to include it within the Project Site conveyed for the Project Site, as set forth in the Settlement Agreement. The rights and remedies of the Parties concerning acquisition of the Private Parcel shall be governed by Section 5.3 of the Settlement Agreement; and
WHEREAS, the Project Site was previously determined to be an “area in need of redevelopment” by Resolution 07-20, Township action adopted on January 16, 2007 and the Township has taken and/or will take such further actions as are required under the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to - 49 (the “LRHL”), including any
amendments, confirmations, supplemental investigations, or redevelopment actions required for the Project and acquisition of the Private Parcel; and
WHEREAS, the Redeveloper has proposed a project to be built on the Project Site, consisting of a four (4)-story residential development consisting of ninety-three (93) total housing units, including seventy-five (75) deed-restricted affordable rental units, which may, but are not required to, include units set aside for veterans and special needs, compliant with UHAC and applicable affordable housing requirements to the extent applicable, and eighteen (18) market-rate units, with parking anticipated to include approximately eighty (80) spaces, approximately 2,700 square feet of commercial space, and ground-floor residential units which open onto the adjacent public plaza anticipated, subject to grading, to include three (3) steps approximately twenty-four (24) inches high with a landing approximately the width of the door with railings (the “Project”); and
WHEREAS, the Township has agreed to adopt a redevelopment plan for the Project Site
which permits the elected project as an “as-of-right” redevelopment project, such that Redeveloper’s application may be considered without the need for use variances or other discretionary relief inconsistent with an as-of-right approval framework; and
WHEREAS, the Settlement Agreement contemplates the Township and Redeveloper will execute this redevelopment agreement governing the conveyance and redevelopment of the Project Site and related implementation obligations; and
WHEREAS, the Parties desire to enter into this Redevelopment and Land Disposition
Agreement (this “Agreement”) dated as of [ * ], to set forth their respective undertakings, rights, and obligations in connection with (i) the redevelopment of the Project Site, (ii) the conveyance of the Project Site (including the Private Parcel upon acquisition) to the Redeveloper or its permitted affiliate; and (iii) the development of the Project consistent with the Settlement Agreement and Term Sheet;
NOW, THEREFORE, in consideration of the mutual promises, representations, covenants and agreements contained herein and the undertakings of each Party to the other and such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby and to bind their successors and assigns, do mutually promise, covenant and agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.01 Governing Law. This Agreement shall be governed by the provisions of (a) the Act and such other statutes as may be the sources of relevant authority and (b) all other Applicable Laws (as defined herein).
SECTION 1.02 Definitions. Words which are capitalized, and which are not the first word of a sentence, are defined terms. The following terms shall have the meanings assigned to such term in the preambles hereof: Unless specifically provided otherwise or the context otherwise requires, the following terms when used in this Agreement shall mean:
“Affiliate” means with respect to any Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with such Person. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, or by contract or otherwise.
“Affordable Housing Production Fund Program” (“AHPFP”) shall mean the gap financing program administered by the New Jersey Housing and Mortgage Finance Agency (“NJHMFA”) for 100% affordable housing projects.
“Affordable Housing Regulations” shall mean the requirements of Prior Round COAH regulations (N.J.A.C. 5:93-1.1 et seq.), Uniform Housing Affordability Controls, N.J.A.C. 5:80- 26.1 et seq. (“UHAC”) the rules and regulations of the New Jersey Housing and Mortgage Finance Agency as well as any additional affordable housing requirements defined by New Jersey statutes, including, but not limited to, the Fair Housing Act (N.J.S.A. 52:27 D-301 to - 329) or imposed as a result of court proceedings or as promulgated by any administrative agency, provided that, where the Project receives Low Income Housing Tax Credits or other funding that exempts or supersedes certain UHAC requirements, the Project shall comply with the applicable funding program requirements to the extent such requirements control.
“Affordable Housing Restriction” shall mean that occupancy of the units designated as Affordable Housing shall be restricted to very low-, low- and moderate-income families as determined by regulations published from time to time by the United States Department of Housing and Urban Development and provided the foregoing restrictions are consistent with the requirements of federal law and all Affordable Housing Regulations.
“Agreement” shall mean this Redevelopment and Land Disposition and Agreement by and Between the Township, FSHC, and Redeveloper along with any written amendments, modifications, or supplements, and the exhibits hereto, together with any other agreement(s) which are incorporated herein by reference.
“Applicable Laws” shall mean all federal, State and local laws, ordinances, approvals, rules, regulations and requirements applicable to the Project including, but not limited to the Fair Housing Act (N.J.S.A. 52:27d-301 to - 329), Prior Round Council on Affordable Housing (“COAH”) regulations (N.J.A.C. 5:93-1.1 et seq.), Uniform Housing Affordability Controls, N.J.A.C. 5:80-26.1 et seq. (“UHAC”) the Land Use Law, relevant codes including construction codes governing access for people with disabilities and such zoning, sanitary, pollution and other environmental safety ordinances, laws and such rules and regulations thereunder, including all applicable environmental laws.
“Aspire Program” shall mean project financing gap program established by the State of New Jersey under the Economic Recovery Act of 2020.
“Building Permit” shall mean a building permit issued by or on behalf of the Township pursuant to Applicable Law.
“Certificate of Completion” means a recordable, conclusive determination issued by the Township, in a form satisfactory to the Redeveloper, evidencing the satisfaction and termination of the agreements and covenants in this Agreement, as applicable, and compliance with this Agreement and the Redevelopment Plan with respect to the Redeveloper’s obligation to implement the Project, as follows: (i) based upon its review of a written certification of a duly authorized officer of Redeveloper (the “Redeveloper’s Written Certification”) stating: (a) the Project has been completed and all labor, services, materials and supplies used in connection thereto have been paid for (or, if disputed, bonded for as may be set forth herein) and (b) the Redeveloper has materially performed all of its duties and obligations under this Agreement as to the Project; and (c) a written determination by Township, which shall not be unreasonably delayed or withheld and the Redeveloper has materially performed all of its duties and obligations under this Agreement as to the Project, based upon: (i) issuance of the Township Engineer Certification and (ii) any other physical inspection of the Project and/or review of such other documentation or information the Township shall reasonably deem relevant and appropriate, in order to determine requisite compliance with the Agreement, language of the Agreement, and all necessary Governmental Approvals (the “Written Determination”); provided, however, the Township shall have a period of twenty (20) days following receipt of the Redeveloper’s Written Certification to request any additional information from Redeveloper which is required in order for the Township to make the Written Determination, following which the Redeveloper shall have ten (10) days to provide such requested information, and if Redeveloper provides such information or if no additional information is requested by the Township within twenty (20) day period, the Township shall issue the Written Determination within thirty (30) days of receipt of such additional information or Redeveloper’s Written Certification if no additional information is requested by the Township. A Certificate of Completion for the Project shall be promptly issued by the Township after the Township’s receipt of Redeveloper’s Written Certification and confirmation by the Township all applicable provisions of this Agreement have been satisfactorily completed by Redeveloper.
“Certificate of Occupancy” means the certificate provided for at N.J.S.A. 52:27D-133,whether temporary or permanent, indicating that the construction has been completed in accordance with the applicable construction permit, the applicable Ordinances of the Township of Millburn, the State of New Jersey Uniform Construction Code, and any other applicable ordinance or regulation implementing the State of New Jersey Uniform Construction Code and all the requirements of this Agreement.
“Claims” shall have the meaning set forth in Section 14.06.
“Commencement of Construction” “Commence Construction” or “Commencement
Date” shall mean the date on which the construction force and machinery is mobilized for construction on the Project to commence the Construction Schedule.
“Complete” or “Completion” shall mean with respect to the Project, the date that the Project may, in all respects, be used and operated for its intended purpose; provided the Township has confirmed all of the applicable provisions of this Agreement have been met and the Township has received the Redeveloper’s Written Certification affirming the Project is complete.
“Completion Date” shall be as defined in Section 4.05 (c).
“Conditional Designation Agreement” shall refer to the agreement approved by Resolution on February 15, 2022, to approve RPM as a Conditional Redeveloper to implement the Project on the condition that FSHC, the Special Master, and the Court shall have agreed on a plan for the Redevelopment of the Project on the Site, which condition has been satisfied.
“Consistency Determination” shall have the meaning set forth in Section 6.04. “DCA” means the New Jersey Department of Community Affairs
“Declaration” shall be a recordable document which includes (a) the provisions of Article 3 and (b) the prohibition against transfers as set forth in Article 7 and (c) the Township’s remedies as set forth in Article 8.
“DJ Action” shall mean the Declaratory Judgment action filed by the Township in the Superior Court of New Jersey, Law Division – Essex County on April 19, 2018, In the Matter of the Township of Millburn, County of Essex, Docket No. ESX-L-2778-18, which action resulted in the execution of the Settlement Agreement by and between the Township, FSHC, and other parties on August 17, 2021.
“Effective Date” shall mean the date set forth above, such date being the date on which this Agreement is executed and delivered by the Township and Redeveloper.
“Engineering Control” means any physical mechanism to contain or stabilize environmental contamination or ensure the effectiveness of a remedial action, in accordance with and as further defined in applicable Environmental Laws and which may include, without limitation, a cap.
“Environmental Laws” means any present or future applicable federal, state, or local law, rule, regulation, order, ordinance or other such legal requirement, including any guidance document, related to release of Hazardous Substances to the environment and the related protection of human health and the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601, et seq (“CERCLA”); Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (“RCRA”); Site Remediation Reform Act, N.J.S.A. 58:10C-1, et seq. (“SRRA”); Brownfield and Contaminated Sites Remediation Act, N.J.S.A. 58:10B-1, et seq. (“BCSRA”); Industrial Site Recovery Act, N.J.S.A. 13:1K-6, et seq. (“ISRA”); New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq. (the “Spill Act”); Underground Storage of Hazardous Substances Act, N.J.S.A. 58:10A-21, et seq.; Water Pollution Control Act, N.J.S.A. 38:10A-1, et seq.; Solid Waste Management Act, N.J.S.A. 13:1E-1, et seq.; Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”), N.J.A.C. 7:26C; Remediation Standards Rules, N.J.A.C. 7:26D; and the Technical Requirements for Site Remediation (“Technical Rules”), N.J.A.C. 7:26E, and any other such laws, ordinances, rules, regulations, court orders, judgments, guidance documents or policies which have been published by NJDEP or USEPA, and common laws which govern (a) the existence, cleanup and/or remedy of any Hazardous Substances on the subject properties; (b) the protection of the environment from spilled, deposited or otherwise discharged Hazardous Substances; or (c) the use, generation, transportation, treatment, removal, storage, discharge or recovery of Hazardous Substances.
“Estoppel Certificate” means a certificate issued by either of the Parties either stating this Agreement is in full force and effect, that it has not been amended (or, if amended, listing such amendments), and that there is no default or breach under this Agreement nor any event which, with the passage of time and the provision of notice, would result in a default or breach under this Agreement, or stating the nature of the default or breach, if any; provided however, that in the event the Estoppel Certificate discloses such a default or breach, it shall also state the manner in which such default or breach may be cured.
“Excepted Claims” shall have the meaning set forth in Section 11.01(b).
“Existing Utilities” means those local public utility connections that may be presently providing utilities services to the Project Site.
“Financial Agreement” shall mean a separate mutually acceptable written agreement between the Township and the Redeveloper regarding the Financial Structure of the Project which may include various federal and state financing programs including the Aspire Program and Payments in Lieu of Taxes (“PILOTs”) pursuant to the New Jersey Long Term Tax Exemption Law, N.J.S.A. 40A:20-1 et seq. subject to the adoption of an Ordinance by the Township Committee, as the case may be.
“Financial Assurance” means any fund established pursuant to Environmental Laws which serves as a Remediation Funding Source or a Financial Assurance in connection with the remediation of the Project Site or any portion thereof.
“Financing Plan” means a description of the estimated Sources and Uses of Project Funding as more fully set forth in Exhibit B.
“FSHC” means Fair Share Housing Center.
“Event of Default” shall be as set forth in Section 9.01.
“Force Majeure” shall have the meaning set forth in Section 10.01.
“Foreclosure” means an event in which a Holder forecloses its mortgage secured by the Project Site, or any part thereof, or takes title to the Project Site, or any part thereof, by deed-in- lieu of foreclosure or such similar transaction.
“Governmental Applications” shall mean the applications including all plans, drawings,documentation and presentations necessary and appropriate for the purpose of obtaining any and all Governmental Approvals required to complete the Project.
“Governmental Approvals” shall mean all government approvals by a Governmental Body having jurisdiction thereof issued in reliance on the Governmental Applications, including, without limitation: the site plan approval with respect to the Building Permit; environmental approvals; sewerage and water capacity approvals and any and all other necessary permits, licenses, consents and approvals required for construction and operation of the Project under Applicable Law including, but not limited to, approval of a Financial Agreement providing for no more than a PILOT, from the Township and an award of federal and state funding sources such as federal Tax Credits as described in Section 5.03.
“Governmental Body” means any federal, State, county or local department, commission, authority, court or tribunal and any designee or successor thereto, exercising executive, legislative, judicial or administrative functions of or pertaining to government, including without limitation, the Township and the State.
“Hazardous Substance” means any substance, chemical or waste that is hazardous or toxic or a pollutant or contaminant, or otherwise hazardous to human health and/or the environment, including but not limited to substances that have been identified by USEPA and/or NJDEP as Emerging Contaminants of Concern, or any other substance deemed hazardous under Environmental Laws, such as, and including, Per- and Polyfluoroalkyl substances (PFAS), perfluorononanoic acid (“PFNA”), perfluorooctanoic acid (“PFOA”), and perfluorooctanesulfonic acid (“PFOS”).
“HEFSP” means the Housing Element and Fair Share Plan adopted by the Township Committee pursuant to Resolution 23-065 on February 7, 2023 and approved by the Superior Court in the DJ Action.
“Improvements” shall mean all on-site and, if any, off-site improvements, constructed on or installed in connection with the Redevelopment of the Project in accordance with Governmental Approvals and Applicable Laws.
“Institution” shall mean any savings and loan association, saving bank, commercial bank or trust company (whether acting individually or in any fiduciary capacity), an insurance company, a real estate investment trust, an educational institution or a state, municipal or similar public employee’s welfare, pension or retirement system or any other corporation or organization subject to supervision and regulation by the insurance or banking departments of the State or of the United States Treasury, or any successor department or departments hereafter exercising the same functions as said departments holding a Mortgage on the Property.
“Institutional Control” means a mechanism used to provide notice of residual contamination at or near a contaminated site in order to ensure the effectiveness of the remedial action over time in accordance with and as further defined in applicable Environmental Laws and which may include, without limitation, well restriction areas (“WRA”), and ground water classification exception areas (“CEA”).
“Judgment of Compliance” means the conditional judgment of compliance and repose granted by the Superior Court in connection with the DJ Action on May 23, 2023, which cannot become final until (among other matters described in said conditional judgment) the Township and Redeveloper enter into this Agreement. The Judgment of Compliance is attached hereto as Exhibit J.
“Land Use Law” shall mean the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq.
“LIHTC” shall mean the Low-Income Housing Tax Credit.
“Licensed Site Remediation Professional” or “LSRP” means a Licensed Site Remediation Professional retained by the Redeveloper in accordance with applicable Environmental Laws.
“Long Term Compliance Obligations” shall have the meaning set forth in Section 6.02 of this Agreement.
“Mortgagee” shall mean an Institution that holds a mortgage on the Property.
“NJDEP” means the New Jersey Department of Environmental Protection.
“NRDs” means Natural Resources Damages, as that term is defined in applicable Environmental Laws.
“Original Settlement Agreement” shall mean the settlement agreement by and between the Township, FSHC, and other parties on August 17, 2021“Parties” shall refer to the Township and Redeveloper, collectively.
“Permitted Transfers” as defined by Section 7.02.
“Person” means any individual, sole proprietorship, corporation, partnership, joint venture, limited liability company or partnership, trust, unincorporated association, institution, public, or Governmental Body or any other entity.
“PILOT” shall mean Payments in Lieu of Taxes pursuant to the NJHMFA Law.
“Planning Board” means the Planning Board of the Township and any successors thereto.
“Progress Reports” shall be as defined in Section 4.06.
“Project” shall be as more fully defined in Section 4.01 and shall mean the redevelopment project to be constructed on the Project Site, consisting of a four (4)-story residential development consisting of ninety-three (93) total housing units, including seventy-five (75) deed-restricted affordable rental units, which may, but are not required to, include units set aside for veterans and special needs, compliant with UHAC and applicable affordable housing requirements to the extent applicable, and eighteen (18) market-rate units, with parking anticipated to include approximately eighty (80) spaces, approximately 2,700 square feet of commercial space, and ground-floor residential units which open onto the adjacent public plaza anticipated, subject to grading, to include three (3) steps approximately twenty-four (24) inches high with a landing approximately the width of the door with railings.
“Project Description” or “Project Narrative” shall have the same meaning as described in Section 4.01 of this Agreement.
“Project Plans” shall mean the Architectural Plans, the Site Plan, the On-Site Traffic Circulation Plan, and the Project Narrative, collectively.
“Project Schedule” means the schedule for financing, construction and implementation of the Project as same is set forth in Exhibit F.
“Project Costs” shall be as defined in Section 5.01.
“Project Site” or “Property” shall mean an approximately Block 1212, a portion of Lot 4, Lots 24, 25, 26 and 27, together with Block 1207, Lot 7, as identified on the Official Tax Maps of the Township, as more particularly set forth on Exhibit I attached hereto.
“Property Transfer Request” shall have the meaning set forth in Section 6.06.
“RAO” means a “Response Action Outcome” as such term is defined in applicable Environmental Laws and the regulations promulgated thereunder.
“Redeveloper” shall be in reference to RPM Development, LLC with corporate headquarters located at 77 Park Street, Montclair, New Jersey 07042 or an urban renewal entity created and controlled by RPM Development Group.
“Redeveloper Party” shall have the meaning set forth in Section 3.01 of this Agreement.
“Redevelopment Law” means the State of New Jersey Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to - 49, as this statute may be amended from time to time.
“Redevelopment Plan” shall mean the Essex and Spring Street Redevelopment Plan.
“Settlement Agreement” shall refer to the Settlement Agreement between the Township and Redeveloper regarding the Project site, executed July 29, 2026, In the Matter of the Township of Millburn, County of Essex, Docket No. ESX-L-2778-18.
“Site Plan” shall have the meaning set forth in N.J.S.A. 40:55D-7.
“Site Plan Application” means the materials submitted to the Planning Board forpreliminary and final Site Plan approval and shall be inclusive of any application for any amendment to any such Site Plan approval or Subdivision Plan approval and shall be prepared by a State of New Jersey-licensed architect, surveyor and/or engineer.
“State” shall mean the State of New Jersey.
“Tolling Event” means: (i) an Event of Default by the Township or the Redeveloper; (ii) an act or omission of the Township that has a material and adverse effect on the ability of the Redeveloper to perform any obligation, requirement, commitment or responsibility set forth by this Agreement; (iii) any litigation regarding any Governmental Approval or regarding the denial or conditions to any Governmental Approval; (iv) any governmental moratorium that prevents construction, development or occupancy of the Project (which such moratorium may also be deemed a Force Majeure hereunder); or (v) any other event deemed a Force Majeure hereunder.
“Township Committee” means the Township Committee of the Township of Millburn.
“Township” shall mean the Township of Millburn.
“Township Cost(s)” means all reasonable Costs and/or expenses incurred by the Township associated with any reasonable activities, tasks or work related to or arising out of the implementation of this Agreement. The term “Costs” shall include, but not be limited to, all reasonable costs, fees and expenses incurred by the Township as a result of its retention of outside legal, engineering, environmental, planning, insurance or financial professionals/consultants in connection with, related to or arising out of the implementation of this Agreement, the preparation or undertaking of any compliance reviews, and the drafting and negotiation of any documents related to this Agreement or to the implementation thereof.
“Township Engineer Certification” means a written certification by the Township Engineer that, based upon the Township Engineer’s physical inspection and review of the Project, together with any other documentation or information that the Township Engineer shall reasonably deem relevant and appropriate, the Project has been constructed and implemented in accordancewith the relevant plans approved pursuant to the Governmental Approvals.
“Township Indemnified Parties” means the Township and all of the following whether past or present: its elected officials, officers, agents, employees, attorneys, professionals, contractors, and consultants.
“Township Representatives” shall have the meaning set forth in Section 6.08 of thisAgreement.
“Transfers” shall be as defined in Section 7.01.
“Uniform Housing Affordability Controls” (“UHAC”) shall mean the property entity
which governs the administration of affordable units and affordability controls for many affordable units in New Jersey.
SECTION 1.03 Interpretation and Construction. In this Agreement, unless the context otherwise requires:
a. The terms “hereby”, “hereof”, “hereto”, “herein”, “hereunder” and any similar terms, as used in this Agreement, refer to this Agreement, and the term “hereafter” means after, and the term “heretofore” means before the Effective Date.
b. Words importing a particular gender mean and include correlative words of every other gender and non-gender specific and words importing the singular number mean and include the plural number and vice versa.
c. Unless otherwise noted, the terms “include,” “includes,” and “including” when used in this Agreement shall be deemed to be followed by the phrase “without limitation.”
d. The term “agree,” “agreements,” “approval,” and “consent” when used in this Agreement shall be deemed to be followed by the phrase “which shall not be unreasonably withheld, conditioned or unduly delayed,” except or unless the context or the express terms of this Agreement may otherwise provide, specify or dictate.
e. Any headings preceding the texts of the several Articles and Sections of this Agreement, and any table of contents or marginal notes appended to copies hereof, shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect. Any references to Articles, Sections and Exhibits in this Agreement shall be deemed to be references to the Articles, Sections and Exhibits in this Agreement except or unless the context or express terms of this Agreement may otherwise provide, specify or dictate.
f. All notices to be given hereunder and responses thereto shall be given, unless a certain number of days is specified, within a reasonable time, which shall not be less than ten (10) days nor more than thirty (30) days, unless the context dictates otherwise.
g. All Exhibits referred to in this Agreement and attached hereto are incorporated herein and made part hereof.
h. Each right or obligation of a Party to review or approve any actions, plans, specifications, or other obligations hereunder shall be made by a person with legal authority to conduct such review or grant such approvals. Any review contemplated by this Agreement shall be made in prompt and timely manner.
i. Unless otherwise indicated, any “costs, fees and expenses” shall be required to be actual, out of pocket, necessary, customary and reasonable.
j. Any reference to Applicable Laws or any Applicable Law shall be read to mean as the Applicable Law is amended or supplemented from time to time.
k. All Block and Lot references used in this Agreement shall refer to Blocks and Lots appearing on the official tax maps of the Township.
ARTICLE II REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Representations and Warranties by the Redeveloper. The Redeveloper hereby
makes the following representations and warranties, understanding that the Township has relied thereon as a material element in entering into this Agreement.
a. The Redeveloper has the legal capacity to enter into this Agreement and perform each of the undertakings set forth herein as of the date of this Agreement.
b. The Redeveloper is duly organized and a validly existing legal entity under the laws of the State of New Jersey and all necessary consents have been duly adopted to authorize the execution and delivery of this Agreement and to authorize and direct the persons executing this Agreement to do so for and on the Redeveloper’s behalf.
c. No receiver, liquidator, custodian, or trustee of the Redeveloper shall have been appointed as of the Effective Date, and no petition to reorganize the Redeveloper pursuant to the United States Bankruptcy Code or any similar statute applicable to the Redeveloper shall have been filed as of the Effective Date.
d. No adjudication of bankruptcy of the Redeveloper or a filing for voluntary bankruptcy by the Redeveloper under the provisions of the United States Bankruptcy Code or any other similar statute that is applicable to the Redeveloper shall have been filed.
e. No indictment has been returned against the Redeveloper or any official, principal, or member of the Redeveloper.
f. There is no action, proceeding, or investigation now pending, nor any basis therefore, known or believed to exist which questions the authority of the Redeveloper to enter into this Agreement or any action or act taken or to be taken by the Redeveloper pursuant to this Agreement except as set forth on Exhibit L. There is no pending or threatened litigation, suit, proceeding, or investigation that would prevent the Redeveloper from performing its duties and obligations hereunder or have a material adverse effect on the financial condition of the Redeveloper, except as set forth on Exhibit L. The Redeveloper shall promptly notify Township in writing of any and all litigation that may prevent the Redeveloper from performing its duties and obligations hereunder.
g. The Redeveloper’s execution and delivery of this Agreement and its performance hereunder will not constitute a violation of any operating, partnership and/or stockholder agreement of the Redeveloper or of any operating, partnership and/or stockholder agreement of the Redeveloper or of any agreement, mortgage, indenture, instrument or judgment, to which the Redeveloper is a party.
h. The Redeveloper is financially and technically capable of developing, designing, financing, constructing, operating, and maintaining the Project.
i. This Agreement is duly executed by the Redeveloper and is valid and legally binding upon the Redeveloper and enforceable in accordance with its terms. The execution and delivery hereof shall not constitute a default under or violate the terms of any indenture, agreement or another instrument to which the Redeveloper is a party.
j. To the best of the Redeveloper’s knowledge, all materials and documentation submitted by the Redeveloper and its agents to Township and its agents were, at the time of suchsubmission, and, unless modified, replaced or superseded by documents or written communications subsequently submitted by Redeveloper and its agents to Township, as of the Effective Date of this Agreement, materially accurate.
k. The Redeveloper shall promptly, upon any change of ownership, and at all such times as Township may reasonably request, furnish Township with a complete statement sworn and subscribed to by the President or Managing Member, as may be applicable, of the Redeveloper identifying all persons holding ownership interests, equitable interests or beneficial interests in the Redeveloper to the extent that such interest exceeds ten (10%) percent and the extent of their respective holdings.
SECTION 2.02 Representations and Warranties by the Township. The Township hereby makes the following representations and warranties, understanding that the Redeveloper has relied thereon as a material element in entering into this Agreement:
a. The Township has the legal power, right and authority to enter into this Agreement and the instruments and documents referenced herein to which the Township is a party, to consummate the transactions contemplated hereby, to take any steps or actions contemplated herby, and to perform their obligations hereunder.
b. Upon the approval by the Township of this Agreement, all requisite actions required of the Township and the consummation of the transaction contemplated hereby, are, to the best of the Township’s knowledge and belief, authorized by all Applicable Laws. To the best knowledge of the Township there are no writs, injunctions, orders, or decrees of any court or governmental body that would be violated by the Township entering into or performing its obligations under this Agreement.
c. This Agreement is duly executed by the Township, and is valid and legally binding upon the Township and enforceable in accordance with its terms on the basis of laws presently in effect and the execution and delivery thereof shall not, with due notice or the passage of time, constitute a default under or violate the terms of any indenture, agreement or other instrument to which the Township is a party.
d. There is no action, proceeding, or investigation now pending, nor any basis, therefore, known or believed to exist which questions the validity of this Agreement or the authority of the Township to enter into the Agreement or any action or act taken or to be taken by the Township pursuant to this Agreement, except as set forth in Exhibit M.
e. The Township agrees to support any applications for Governmental Approvals that are required to implement the terms of this Agreement, and to execute any documents required to be executed by the Township in order for the Redeveloper to obtain such approvals and to otherwise cooperate with the Redeveloper with respect to the Governmental Approvals, provided that nothing contained in this Section 2.02 shall be deemed: (i) to constitute an approval of all or any portion of the Project for which Governmental Applications have been submitted or are required or (ii) a waiver of the ability of the Planning Board, or any other Governmental Body, from exercising its statutorily authorized responsibilities with respect to the Governmental Applications or Governmental Approvals.
f. The Township acknowledges its funding obligations with respect to the Project are governed by Section 8.3 of the Settlement Agreement. To the extent the Township is required to provide a Gap Subsidy, such obligations shall be performed in accordance with the terms set forth in the Settlement Agreement.
ARTICLE III
COVENANTS AND RESTRICTIONS
SECTION 3.01 Redeveloper Covenants and Restrictions. The Redeveloper covenants and agrees:
a. Redeveloper shall complete the Project in accordance with the provisions of this Agreement, and all Applicable Laws, including, but not limited to, all Governmental Approvals and all applicable Environmental Laws. Such obligation shall include, but not be limited to, the Redeveloper using commercially reasonable efforts to ensure that: all consultants, professionals, employees, agents, and contractors engaged by the Redeveloper or any subcontractor of any of the Redeveloper’s contractors, including the Redeveloper’s LSRP, (each a “Redeveloper Party”) possess the skill and judgment necessary to construct and implement the Project in accordance and compliance with the terms and conditions of this Agreement; and Redeveloper will not consent to any encumbrances or restrictions upon the Project Site which would prohibit the Project from being completed in accordance and compliance with the terms and conditions of this Agreement. All activities performed under this Agreement shall be performed in accordance with the high level of skill and care necessary so that the Project, upon completion, satisfies the design, materials and quality requirements of this Agreement and all applicable Governmental Approvals and Applicable Laws.
b. To the extent required by law and if applicable, the Redeveloper shall pay all workers or employees employed in connection with the construction and completion of any “public work” (as such term is defined in N.J.S.A. 34:11-56.26) portion of the Project, not less than the prevailing rates of wages, as provided by Applicable Laws to the Township’s public work contracts, including, without limitation N.J.S.A. 34:11-56.25, et seq. Based on Project concept plans and the understanding between the Parties, the Parties acknowledge that no such “public work” is anticipated in connection with the Project, except potentially the Third Driveway Access easement described in Section 4.10 herein.
c. The Redeveloper shall undertake with due diligence (i) the financing of the Project, (ii) demolition, as necessary, construction and redevelopment of the Project, and (iii) subject to Sections 4.05 and 4.06, to begin and complete each item in the Construction Schedule on or prior to the date set forth in the Construction Schedule (and for those items for which commencement dates only are given, such items shall be completed in a commercially reasonable period) and (iv) operate, manage and maintain the Project substantially as Redeveloper operates, manages, and maintains its other projects in the State of New Jersey. All activities performed under this Agreement shall be performed in accordance with the level of skill and care ordinarily exercised Redevelopers of first-class Redevelopments of the same type and nature as the Project.
d. The Redeveloper shall not seek a material change to the Project, without the amendment of this Agreement approved by an affirmative by vote of the Township Committee.
e. The Redeveloper shall use diligent efforts to obtain all Governmental Approvals requisite to the construction, Redevelopment, use and occupancy of the Project, including evidence reasonably satisfactory to the Township that the Project is in compliance with all Applicable Laws. Redeveloper shall provide copies of all applications for any Governmental Approval to the Township within five (5) days of submission of such application(s).
f. The Redeveloper shall not suspend or discontinue the performance of its obligations under this Agreement.
g.The Redeveloper shall not use or permit a use of the Project, or any part thereof in a manner that is inconsistent with Governmental Approvals, Applicable Laws, including but not limited to Environmental Laws, and this Agreement.
h. Prior to issuance of a Certificate of Completion by the Township for the Project, the Redeveloper shall not utilize the Project Site or any portion thereof as collateral for any activity unrelated to this Project; provided that nothing herein shall be deemed to prevent Redeveloper from closing on its acquisition, construction and permanent mortgage financing, as the case may be.
i. The Redeveloper, its successors or assigns shall not discriminate against any Person, or group of Persons, on the basis of age, race, color, religion, creed, national origin, ancestry, physical handicap, familial status, sex, (including pregnancy) gender identity or expression, affectional orientation, sexual orientation, marital status, or familial status marital/civil union status, atypical hereditary cellular or blood trait, genetic information, liability for military service and mental or physical disability (including perceived disability and AIDS and HIV status) in the sale, lease, sublease, rental, transfer, use, or occupancy of any property in the Project, or any part thereof. The obligations under this Paragraph shall expressly survive the issuance of any Certificate of Completion for the Project.
j. The Redeveloper shall promptly notify the Township of any material adverse change in its financial condition from the information provided to the Township by Redeveloper indicating Redeveloper’s financial capability to develop, finance, and construct the Project in furtherance of the Township’s consideration in designating Redeveloper as the Redeveloper.
k. Redeveloper shall not, without the prior written consent of the Township: (a) effect or permit any change, directly or indirectly, in the majority ownership or control of the Redeveloper; or (b) assign or attempt to assign this Agreement or any rights herein or in the Project or any portion of the Project Site. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit, and the Township’s prior approval shall not be required for Permitted Transfers, as that term is defined herein.
l. Redeveloper further represents and agrees for itself and its successors and assigns, that Redeveloper shall not make or create, prior to the issuance of the Certificate of Completion, or suffer to be made or created, any sale, conveyance, or transfer of the Project Site or any portion thereof, or this Agreement, without the prior written approval of the Township, which approval shall not be unreasonably withheld, conditioned or delayed, excluding Permitted Transfers, as that term is defined herein.
m. The Redeveloper shall pay, in a timely manner, any and all taxes and utility charges incident to the conduct and operation upon the Property, including all charges for heat, light, power, telephone, and other utilities, as well as all water, sewer and other charges.
n. Redeveloper covenants and acknowledges its undertakings pursuant to this Agreement shall be for the purpose of the redevelopment of the Project Site and not for speculation in land holding.
o. The Redeveloper will not cause or permit the use of the Property for the storage, treatment, disposal, or release of any Hazardous Substance without the Township’s express written consent. Such prohibition shall extend to the storage, treatment, disposal or release of any product, substance, chemical, material or waste whose presence, nature, quantity, and/or intensity of existence, use, manufacture, disposal, transportation, spill, release or effect, either by itself or in combination with other materials expected to be on the Property, is either: (i) potentially injurious to the public health, safety, or welfare, the environment or the Property; (ii) regulated or monitored as a Hazardous Substance by any Governmental Body; or (iii) a basis for potential liability of the Township to any Governmental Body or third party under any applicable statute or regulation. Notwithstanding anything to the contrary contained herein, this provision shall not prohibit Redeveloper from using or storing on the Project supplies of chemicals and project normally used in the operation of the Project.
p. Redeveloper shall submit the following Certificates: (i) a Certificate of the Managing Member of the Redeveloper, to the effect that, to the best of his/her or their knowledge, each of the representations of the Redeveloper which are set forth in Section 3.01 hereof are true and correct as of the Effective Date of this Agreement; (ii) a certified copy of the Certificate of Formation; (iii) Certification of Good Standing for each legal entity comprising Redeveloper; and (iv) Business Registration Certificate, in accordance withN.J.S.A. 52:32-44.
q. Redeveloper shall submit a list of the names, addresses and phone numbers of all individuals who comprise the Redeveloper’s Project Team is set forth on Exhibit K. The
r. Redeveloper shall promptly provide written notice to Township of any changes in the individuals who will comprise the Redeveloper’s Project Team.
s. Redeveloper covenants and acknowledges that the Property shall not be used for any purpose not authorized by the Redevelopment Plan. Redeveloper covenants that it, the Redeveloper shall not cause any release or discharge of any Hazardous Substance(s) at, on, under or upon the Project Site, or elsewhere within the Township, at any time and any such release or discharge shall be promptly remediated by the Redeveloper, at no cost to the Township whatsoever, in accordance with applicable Environmental Laws. In such event, said Redeveloper shall promptly notify the Township in writing and a copy of all Preliminary Assessment Reports, Site Investigation Report(s), Remedial Investigation Workplan(s), Remedial Investigation Report(s), Remedial Action Work Plan(s), Remedial Action Reports, and RAOs as may be applicable, with respect to same shall be promptly provided to the Township. The environmental obligations under this Paragraph shall expressly survive the issuance of any Certificate of Completion for the Project.
SECTION 3.02 Township Covenants. The Township hereby covenants and agrees:
a. The Township shall support and fully cooperate with the Redeveloper with regard to zoning applications and any and all Governmental Approvals that may be needed for the consistent with the Redevelopment Plan and the Settlement Agreement.
b. The Township shall undertake and complete, with due diligence, all of its obligations under this Agreement.
SECTION 3.03 Declaration of Covenants and Restrictions. The Redeveloper shall execute and record the Declaration of Covenants and Restrictions (the “Declaration”) in accordance with the LRHL, in a form reasonably approved by the Township and Redeveloper, attached hereto as Exhibit H, imposing the Redeveloper’s covenants on the Project post-closing, together with such other matters indicated in this Agreement as to be indicated in the Declaration, and the provisions hereof relating to Transfers, all as may be limited by the rights of a Mortgage granted hereunder.
SECTION 3.04 Effect and Duration of Covenants. It is intended and agreed, and the Declaration shall comprise covenants running with the lands comprising the Project Site and they shall, in any event, and without regard to technical classification or designations, legal or otherwise, and except only as otherwise specifically provided in this Agreement, be binding to the fullest extent permitted by law and equity for the benefit in favor of and enforceable by the Township and their respective successors and assigns against the Redeveloper and its successors and assigns and every successor in interest therein and any party in possession or occupancy of the Project Site during their respective periods of ownership, possession and/or occupancy. Additionally, the covenants and restrictions contained in this Article 3 and in Article 7 shall be binding, to the fullest extent permitted by law and equity, for the benefit and in favor of, and enforceable by, the Township. Unless otherwise set forth herein or in the Applicable Law, it is further intended and agreed that the Redeveloper’s Declaration set forth herein shall remain in effect until the issuance of a Certificate of Completion, at which time the Redeveloper’s Declaration and each of the covenants set forth therein shall automatically and without further action cease and terminate; and the conditions determined to exist at the time the Project Site was determined to be in need of redevelopment shall be deemed to no longer exist.. However, such agreements and covenants shall be binding on the Redeveloper itself, each successor in interest to the Redeveloper and each party in possession or occupancy, respectively, only for such period as the Redeveloper or such successor or party shall be in possession or occupancy of the buildings and structures thereon or any part thereof. If requested in writing by the Redeveloper, the Township shall execute a Termination of the Redeveloper’s Declaration upon issuing the Certificate of Completion to be recorded by the Redeveloper, as may be appropriate.
SECTION 3.05 Enforcement by the Township.
a. In amplification, and not in restriction, of the provisions of this Article 3, it is intended and agreed the Township and its successors and assigns shall be deemed beneficiaries of the terms and covenants set forth in this Agreement, both for and in their own right but also for the purposes of protecting the interests of the community and other parties, public or private, in whose favor or for whose benefit such agreements and covenants have been provided. Such agreements and covenants shall (and the Declaration shall so state) run in favor of the Township for the entire period during which such agreements and covenants shall be in force and effect, without regard to whether the Township has at any time been, remains, or is an owner of any land or interest therein.
b.The covenants and restrictions contained in this Article 3 and in Article 7 shall run with the land and be referenced in any deeds, leases, or other documents of conveyance for the project, but shall cease and terminate upon issuance of a Certificate of Completion for the Project. SECTION 3.06 Mutual Rights to Enforce. The Township shall have the right, in the event of any material breach of any such agreement or covenant beyond any applicable notice and cure period, to exercise all the rights and remedies and to maintain any actions or suits at law or in equity or other lawful proceedings to enforce the curing of such breach of agreement or covenant, to which it or any other beneficiaries of such agreement or covenant may be entitled. The Township acknowledges this
Agreement is being entered into as part of its HEFSP and conditional judgment of compliance in the DJ Action and that the Redeveloper, with respect to any uncured material breach, shall have the right, upon twenty (20) days’ notice to the Township, but not the obligation, to seek relief by way of a motion to enforce litigant’s rights in the DJ Action.
ARTICLE IV THE PROJECT
SECTION 4.01 Description of the Project. The Redeveloper agrees, at its sole cost and expense except for Township funding as otherwise provided for in this Agreement, to implement and complete the Redevelopment of the Property which shall consist of the development of affordable housing will be developed or created through means other than inclusionary zoning and as specifically outlined in Exhibit A attached hereto: (i) purchase of the Property; (ii) procurement of all applicable Governmental Approvals; and (iii) financing, design, demolition, construction, and completion of the Project, in accordance with the terms of this Agreement.
a. The Project consists of a four (4)-story residential development consisting of ninety-three (93) total housing units, including seventy-five (75) deed-restricted affordable rental units, which may, but are not required to, include units set aside for veterans and special needs, compliant with UHAC and applicable affordable housing requirements to the extent applicable, and eighteen (18) market-rate units, with parking anticipated to include approximately eighty (80) spaces, approximately 2,700 square feet of commercial space, and ground-floor residential units which open onto the adjacent public plaza anticipated, subject to grading, to include three (3) steps approximately twenty-four (24) inches high with a landing approximately the width of the door with railings.
b. At least fifty percent (50%) of the units within each bedroom distribution must be low- income units (at or below 50% of area median income), which calculation includes very low- income units. The remainder shall be moderate-income units (at or below 80% of area median income, priced at or below 60% of area median income per UHAC). There shall be a maximum 52% affordability average per UHAC.
c. Consistent with the 9 Main Project and the Settlement Agreement, Redeveloper expects the Project to include at least twenty-three (23) three-bedroom affordable units and up to fifteen (15) one-bedroom/studio affordable units, subject to applicable UHAC, NJHMFA, LIHTC, AHPFP, and other funding-program requirements.
d. The Project may include supportive housing units as may be required to receive the maximum score in the family cycle of the Qualified Allocation Plan or the Affordable Housing Production Fund by the New Jersey Housing and Mortgage Finance Agency, which units shall count towards the overall income/bedroom distribution.
e. The Project shall be constructed and implemented in accordance with this Agreement, Governmental Approvals, and Applicable Laws, including Environmental Laws.
f. The Redeveloper shall apply for and obtain Site Plan approval from the Township Planning Board in accordance with the Construction Schedule. The Redeveloper has been designated as the exclusive Redeveloper of the Project and shall have the exclusive right to redevelop the Property and implement the Project in accordance with the terms and conditions of this Agreement.
SECTION 4.02 Affordable Housing Requirements. The units in the Project shall comply with all applicable affordable housing laws and regulations, including Third Round UHAC regulations, any applicable NJHMFA requirements, any applicable surviving COAH affordable housing regulations, any applicable order of the Court, and other applicable laws.
a. In addition, the affordable units shall remain affordable rental units for a period of at least forty (40) years to the extent that satisfaction of the requirements of Project financing require such longer period (“Deed-Restriction Period”) so the Township may count the units against its obligations to provide affordable family rental housing for its Third Round Obligation. This obligation includes, but is not limited to, the Redeveloper’s obligation to comply with the bedroom distribution requirements, very low (13%); low (37%), moderate (50%) income split requirements, pricing requirements, affirmative marketing requirements, candidate qualification and screening requirements, and deed restriction requirements. In the event that Redeveloper obtains funding or a subsidy from the NJHMFA and / or New Jersey Department of Human Services to provide housing with individuals with developmental disabilities, at least five (5) of the one or two bedroom very-low income units will be restricted for individuals with developmental disabilities.
b. The distribution of the affordable housing units shall be in compliance with COAH’S Third Round substantive regulations, N.J.A.C. 5:93, and the terms and conditions in the Settlement Agreement.
c. Redeveloper, or its Affiliate, shall serve as the Administrative Agent or may contract with an experienced administrative agent (“Administrative Agent”) approved by the Township for the administration of the affordable units and shall have the obligation to pay all costs associated with properly deed restricting the affordable units in accordance with applicable affordable housing requirements, including UHAC and other applicable laws for the Deed- Restriction Period. Redeveloper and/or its Administrative Agent, shall work with the Township and the Township’s Administrator Agent regarding any affordable housing monitoring requirements imposed by the DCA or the Court.
d. The Parties agree the affordable units are to be included in the Township’s HEFSP to be approved and credited by the Court in the Township’s DJ Action, and that the credits will be applied against any affordable housing obligations assigned to the Township.
e. Redeveloper shall provide documentation requested by Township to demonstrate compliance.
f.Within thirty (30) days of receipt of written notice, Redeveloper shall provide detailed affordable housing information requested by the Township, or the Township’s Administrative Agent, concerning the Redeveloper’s compliance with the applicable affordable housing requirements.
SECTION 4.03 Project Management. Redeveloper shall operate and manage the Project inaccordance with the highest standards in the industry and shall, at its cost, provide a superintendent on site at the Project site on a full-time basis.
SECTION 4.04 Duration. This Agreement shall have a term as set forth in Exhibit F, subject to the deadlines, extensions, and tolling provisions set forth in the Settlement Agreement, including, without limitation, Sections 6.1, 6.2, 6.3, 6.5, 7.1, 8.3, 9.5, and 10 thereof. The deadlines set forth in this Agreement and Exhibit F shall be construed consistently with the Settlement Agreement, and shall be subject to Force Majeure Events, extensions agreed to by the Parties, and tolling for Third-
Party Litigation or other challenges as provided in the Settlement Agreement. Commencing with the first available funding cycle, Redeveloper shall use commercially reasonable efforts to pursue such financing, tax credits, grants, subsidies and other funding sources as are reasonably necessary for the Project and are consistent with the Settlement Agreement. Redeveloper shall submit applications in accordance with the timeline established by the Settlement Agreement and shall keep the Township reasonably informed regarding the status of such applications. Nothing contained herein shall require Redeveloper to pursue any particular financing source or funding program in a specified sequence if an alternative financing structure is reasonably determined by Redeveloper to be more feasible and is otherwise consistent with the Settlement Agreement.
SECTION 4.05 Construction Schedule.
a. The Construction Schedule shall control the Commencement of Construction, progress, and Completion of the Project. In recognition that the completion of the affordable housing project is in satisfaction of a constitutional obligation and the terms of the Settlement Agreement, the Redeveloper agrees to make good faith efforts to adhere to the Construction Schedule, subject to reasonable extensions in accordance with Section 4.05(f). The Redeveloper shall use commercially reasonable efforts, subject to obtaining Governmental Approvals, to Commence Construction no later than the date set forth in the Construction Schedule.
b. Subject to the provisions of Section 4.07, the Redeveloper shall use commercially reasonable efforts to Complete the Project in accordance with the Construction Schedule.
c. Redeveloper shall commence construction consistent with the timeline agreed to between the Parties and as set forth in the Judgment of Compliance.
d.Redeveloper shall complete construction within twenty-four (24) months of commencement.
e. Upon Completion of the Project, the Redeveloper shall apply to the Township Committee for a Certificate of Occupancy for the Project. The date when the Redeveloper has achieved the Completion of the Project (the “Completion Date”) shall be the date the Redeveloper has obtained a Certificate of Occupancy for the Project.
f. The Redeveloper may modify the Construction Schedule from time to time with prior written notice to the Township of any such modification, provided any such modification shall not change the estimated Completion Date for the Project without the prior written consent of the Township, which consent shall not be unreasonably withheld. If, subject to the provisions of Section 4.07, the Redeveloper fails to meet the estimated Completion Date for any reason or determines it will fail to meet the Completion Date for any reason, despite good faith efforts to comply, the Redeveloper shall promptly provide notice to the Township stating: (i) the reason for the failure or anticipated failure to meet the Completion Date; (ii) the Redeveloper’s proposed method for correcting such failure; (iii) the Redeveloper’s proposal for revising the applicable Completion Date; and (iv) the method or methods by which the Redeveloper proposes to achieve subsequent tasks by the relevant Completion Dates. In such event the Township shall, in its reasonable discretion, consider the modification of the Completion Date. For any extension of the Completion Date by sixty (60) days or less, and upon the demonstration by the Redeveloper of good cause, the Township Administrator, in his/her discretion, may agree to extend the Completion Date accordingly.
g. If the Redeveloper has performed all of its duties and obligations under this Agreement and Completed the Project in its entirety, the Township shall, as applicable, promptly within thirty (30) days of the Completion Date and receipt of a written request, which is complete in all aspects regarding the obligations of the Redeveloper pursuant to this Agreement, from the Redeveloper and payment of all fees and costs due to the Township, issue a Certificate of Completion and execute a Termination of Redeveloper’s Declaration; provided, however, the Redeveloper Covenants set forth in Section 3.01 shall survive the issuance of a Certificate of Completion and the recording of a Termination of Redeveloper’s Declaration, in accordance with Applicable Law. The Certificate of Completion shall otherwise constitute a recordable, conclusive determination of the satisfaction and termination of the agreements and covenants in this Agreement and Applicable Laws, with respect to the obligation of the Redeveloper to construct the Project.
SECTION 4.06 Project Oversight – Progress Reports
a. Within fourteen (14) days of receipt of a written request from the Township, the Redeveloper shall submit to the Township periodic written progress reports substantially in the form attached hereto as Exhibit C which shall include a description of activities completed, the activities to be undertaken within the following sixty (60) days, the status of all Governmental Approvals, as an explanation of each activity, if any, which is showing delay, a description of problem areas, current and anticipated delaying factors and their estimated impact on the performance of other activities and Completion Date in the Construction Schedule, and explanation of corrective action taken or proposed and such other information as may be reasonably requested by the Township (collectively, the “Progress Report”).
b. The Township reserves the right to enter upon the Project Site, upon reasonable notice to the Redeveloper and during business hours, to visually inspect the site for informational purposes, subject to the Township’s acknowledgment the Project site will be an active construction site and the Redeveloper shall not be liable or responsible to the Township, its employees, agents, or invitees for damages arising from injury to person or property sustained in connection with such inspections except to the extent the Redeveloper violates the standard of due care owed to invitees. In no event shall the Township’s inspection of the Project under this Section 4.06(b) be deemed acceptance of the work or deemed to waive any right the Township has under this Agreement. Permit officials shall be permitted to enter the project at any time during normal business hours. The Township shall also have the right to engage an owner’s representative, at the Township’s cost, to spot check the progress on the project any time during normal business hours.
SECTION 4.07 Tolling. The Redeveloper shall diligently adhere to the Construction Schedule and the provisions set forth in this Article 4; provided that such obligations shall be extended on a day-for-day basis for each day the Redeveloper’s performance hereunder is delayed by (a) the occurrence of an event of Force Majeure; (b) any legal challenge to this Agreement or Redeveloper’s development approvals as noted in Exhibit F; or (c) an extension of the Completion Date of any portion of the Project granted by the Township, in its reasonable discretion. If a delay only affects a portion of the Project, the extension granted hereunder shall only apply to the obligations so affected and the Redeveloper shall continue to perform its obligations with respect to the balance of the Project.
SECTION 4.08 Prohibition Against Suspension, Discontinuance or Termination. The Redeveloper shall not suspend or discontinue its performance of its obligations under this Agreement or terminate this Agreement (other than in the manner provided for herein) for any reason except to the extent permitted by Sections 4.04, 4.05, 4.07, and 5.03 but, with respect to suspension or discontinuance only to the extent and for the period of time permitted by Sections 4.04, 4.05, and 4.07.
SECTION 4.09 Cooperation. The Parties shall fully cooperate with each other as necessary and desirable to accomplish the Project, including entering into additional agreements that may be required; provided, however, that such actions shall not result in a material increase in the Township’s and the Redeveloper’s respective obligations hereunder or material decrease in the Township’s and the Redeveloper’s respective rights hereunder.
SECTION 4.10 Existing Easements. Redeveloper shall have the responsibility of identifying, maintaining, and relocating, if necessary, any existing easements.
ARTICLE V
COSTS ASSOCIATED WITH THE PROJECT AND FINANCIAL CONTINGENCIES
SECTION 5.01 Project Costs. Except as otherwise provided in the Settlement Agreement
with respect to pre-existing environmental conditions and environmental remediation obligations assumed by the Township, the costs of implementing and completing the Project, including but not limited to the cost of obtaining all Governmental Approvals, the cost of designing and constructing (including the costs of any construction observation services) the Improvements, third-party engineering reports to construct or install any/all on- and off-site municipal infrastructure improvements and capacity enhancements or upgrades to traffic control measures, water service, sanitary sewer service, stormwater management, and flood mitigation measures to the Project or required due to the impacts of the Project, in addition to all required tie-in or connection fees, as well as for all sidewalks, curbs, streetscape improvements (street trees and other landscaping),
street lighting, and road improvements for the Project or required due to the impacts of the Project, all financing costs, all marketing and leasing costs for the Project (collectively, the “Project Costs”) shall be borne by the Redeveloper. Notwithstanding the foregoing, the Parties agree any off-tract improvements shall be borne by Redeveloper only on a pro rata basis in proportion as such improvement directly relates to the Project.
SECTION 5.02 Documentation of Redeveloper Costs.
Pursuant to the terms of the Original Settlement Agreement, on February 8, 2023, the Township adopted Resolution 23-066, entitled “Intent to Fund Spending Plan Shortfall for Affordable Housing Programs,” which provides that the Township agrees “. . . to fund any shortfalls in its affordable housing program that may arise whether due to inadequate funding from other sources or for any other reason...”. To the extent Redeveloper seeks funding from the Township for such purpose, it shall provide documentation to establish the costs for which such funding is sought are the result of a competitive bidding process which has resulted in the selection of the lowest reasonable cost by a qualified bidder for such expense, though the Township recognizes an affiliated entity of Redeveloper will be the general contractor (and thus not subject to this provision). Upon the request of the Township, and within ten (10) days thereafter, the Redeveloper will also provide copies of the procurement documents and all disbursements for the work performed or the services provided and a statement there are no material conflicts resulting from internal relationships with such vendors. The Township and its representatives shall have the right to inspect and make copies of all books and records of such costs for the Project at the offices of the Redeveloper, during business hours, upon ten (10) notice of the request to inspect such books and records.
SECTION 5.03 Financing Plan - Financial Contingencies.
The Redeveloper (at its sole cost and expense) anticipates it will apply for and obtain all federal and state funding sources including but not limited to Essex County Home Loan funds, Aspire Program funds, LIHTC, AHPFP, and any other available government funding sources necessary to construct the Project as more fully set forth in Exhibit B, entitled “Estimated Financial Plan” (“Governmental Funding”).
The Redeveloper shall provide the Township with an electronic copy of each Governmental Funding application at such time as such applications are submitted within five (5) days of submission. The Redeveloper shall provide the Township with an electronic copy of each Governmental Funding approval received by the Redeveloper with respect to the Project.
In the event that all necessary Governmental Funding approvals for the Project are not obtained after Redeveloper has used commercially reasonable efforts to obtain such approvals, by the date set forth in the Project Schedule attached as Exhibit F Redeveloper shall provide written notice to the Township describing its efforts and the status of the required financing. The Parties shall thereafter cooperate in good faith regarding any necessary modifications to the Project Schedule consistent with the Settlement Agreement. If, after a period of sixty (60) days following the Redeveloper’s notice to the Township, the Redeveloper and the Township are unable to agree on a modification to the Project Schedule and the Redeveloper has not obtained all Governmental Funding approvals from the required Governmental Authorities, either party shall have the right to terminate this Redevelopment Agreement upon thirty (30) days written notice to the other Party, except that the Township’s right to terminate is subject to Court approval and Fair Share Housing Center approval and no such termination by the Township shall be effective unless approved by the Court and Fair Share Housing Center. The Parties acknowledge that the consequences of any inability to obtain Governmental Funding, including the Township’s obligations concerning any Gap Subsidy and the Parties’ respective rights and remedies, shall be governed by the Settlement Agreement. Nothing contained in this Section shall be construed to create any termination right inconsistent with the Settlement Agreement.
SECTION 5.04 PILOT. The Parties acknowledge the Township has approved the Financial
Agreement, including a resolution of need as required by HMFA.
ARTICLE VI
REDEVELOPER’S DUE DILIGENCE AND LAND DISPOSITION
SECTION 6.01 Release of the Township. Except as otherwise excluded within in Sections 6.01, 6.07, and 11.01(a), herein, in addition to the release provisions set forth in Sections 6.07 and 11.01(a), herein, upon the Closing Date, Redeveloper hereby releases the Township from any Claims associated with or arising out of the physical condition of the Project Site, whether known or unknown, except for claims arising from the Township’s obligations under this Agreement, the Settlement Agreement, or any Escrow Agreement executed in connection therewith.
SECTION 6.02 Due Diligence. Due Diligence Period shall be the term of sixty (60) days from the Effective Date to conduct non-invasive physical studies, investigations, feasibility analyses, and survey review upon the Project Site (“Due Diligence Activities”). In the event Redeveloper wishes to conduct invasive studies, investigations, analyses, or reviews, Redeveloper shall submit a detailed scope of work describing the anticipated activities to be undertaken upon the Project Site for review and comment by the Township’s LSRP. Redeveloper shall not undertake any such invasive activities upon the Project Site without the Township’s written consent which may be reasonably conditioned based upon, inter alia, the type of invasive activities to be undertaken by or on behalf of Redeveloper, provided however, such consent is not unreasonably withheld or delayed. The Township may observe any Due Diligence Activities and take split samples, as may be applicable. Redeveloper shall promptly provide the Township with a copy of any labs or data resulting from any invasive sampling upon the Project Site.
SECTION 6.03 Notice of Entry. Redeveloper shall provide the Township with written notice of its intention to enter upon the Property at least five (5) days in advance of same, together with: (a) a list of the persons intending to enter and a scope of work or other such description of the Due Diligence Activities it intends to undertake upon the Property with each such entry, which Redeveloper acknowledges and agrees shall not be undertaken at any time on any Saturday, Sunday, or federal holiday; and (b) proof of insurance in such amounts and of such types shall be reasonably acceptable to the Township in writing, which such insurance shall name the Township as an additional insured. Redeveloper may consult with or involve an LSRP in the Due Diligence Activities, in Redeveloper’s discretion. Redeveloper shall coordinate access and cooperate with the Township Engineer and the Department of Public Works as may be requested, including with regard to exact locations for any invasive sampling to be undertaken upon the Project Site. The prior written notice required by this paragraph may be given by electronic mail.
SECTION 6.04 Compliance. Redeveloper shall comply, at its sole cost and expense, and the Redeveloper shall cause any Redeveloper Party to comply with all duly promulgated and applicable Federal, State, County, and local laws, ordinances, rules, and orders affecting the Project Site, in connection with the Due Diligence Activities. Further, any Redeveloper Party undertaking the Due Diligence Activities shall do so in a good and workmanlike manner and in accordance with all applicable Environmental Laws and prevailing industry standards.
SECTION 6.05 No Interference/Restoration of Project Site. Redeveloper shall use all commercially reasonable efforts not to interfere with any ongoing Township operations at the Property; however, in the event that such interference cannot be avoided despite such efforts, Redeveloper shall submit to the Township a written statement from Redeveloper’s engineering professional(s) describing the anticipated interference, the length of time of such interference, the reason for the interference, and the methods or techniques that will be implemented in order to mitigate same. Redeveloper shall not proceed with the work that is anticipated to cause the interference until written approval from the Township is received, which approval shall not be unreasonably denied or conditioned. The Township may determine, in its discretion but at its sole cost, to observe any Due Diligence Activities undertaken upon the Property by the Redeveloper. Additionally, Redeveloper shall refrain from materially altering the Project Site but in the event that same is reasonably unavoidable, Redeveloper shall promptly restore such affected portion of the Project Site to substantially the condition that existed immediately prior to such entry, unless any such obligation of the Redeveloper is waived in writing by the Township. Redeveloper shall not store or keep equipment of any kind on the Project Site overnight unless permitted by the Township in writing and further, Redeveloper shall be solely responsible for the removal, transportation and offsite disposal of any and all investigation-derived waste generated by its Due Diligence Activities.
SECTION 6.06 Expiration of Due Diligence Period. At the end of the Due Diligence Period, and within not more than fourteen (14) days thereafter, Redeveloper shall deliver a written notice to the Township confirming whether it intends to continue with its acquisition of the Project Site (“Confirmation Notice”) or terminate this Agreement (“Termination Notice”), in accordance with the terms and conditions herein. If at any time the Due Diligence Activities reveal any environmental or other material conditions that, in Redeveloper’s reasonable discretion, will materially and adversely impact the Redeveloper’s ability to undertake and Complete the Project, Redeveloper shall so notify the Township in writing that it will not proceed with the acquisition and redevelopment of the Property. Said writing shall contain the details regarding the environmental or other material conditions that, in Redeveloper’s reasonable discretion, materially and adversely impact the Redeveloper’s ability to undertake and Complete the Project, including related documentation corroborating or otherwise describing the conditions.
SECTION 6.07 Environmental Release and Indemnification, Defense and Hold
Harmless of the Township in Connection with Due Diligence. Any entry upon the Property by any Redeveloper Party is at the risk of the Redeveloper and/or such Redeveloper Party, respectively. On behalf of itself and on behalf of the Redeveloper Party, Redeveloper hereby releases the Township and its employees, agents, contractors, subcontractors, or other professionals (“Township Representatives”) from, and agrees to indemnify, defend and hold harmless, the Township, its employees and agents, from any Claims related to or arising out of Redeveloper’s Due Diligence Activities, except the Township shall indemnify, defend and hold harmless Redeveloper from Claims arising out of pre-existing Environmental Conditions which first arose on or before the Closing Date, unless the Redeveloper or any Redeveloper Party shall exacerbate such condition. The obligations under this Paragraph shall survive any termination of this Agreement or the issuance of a Certificate of Completion for the Project, as may be applicable.
SECTION 6.08 Title Commitment. During the Due Diligence Period, the Redeveloper shall order a title commitment and provide a copy to the Township of same immediately upon receipt. Redeveloper shall give written Notice of any Objections to the Township. The Township shall be obligated to remedy any Objection and the Closing may be adjourned for a reasonable period of time for purposes of remedying Objections.
SECTION 6.09 Application to Planning Board – Consistency Review. Within thirty (30) days from the date of the Redeveloper’s Confirmation Notice, Redeveloper shall diligently prepare and submit to the Planning Board applications, as applicable, for preliminary and/or final Site Plan approval and for the subdivision or lot consolidation, if necessary, of the Property to create the Project Site as may be required, prepared by a State of New Jersey licensed architect, surveyor and/or engineer for the development and construction of the Project. Prior to the submission to the Planning Board of any Planning Board Application, including with regard to any amendment to any approval issued by the Planning Board, the Redeveloper shall submit a copy of the site plan set and architectural drawings to the Township for a determination by the Township’s Redevelopment Planner and any other such professional as may be reasonably designated by the Business Administrator that the Planning Board Application at issue conforms in all material respects to the Project Description, this Agreement and the Exhibits attached hereto, and the Redevelopment Plan (the “Consistency Determination”), which determination shall be made within ten (10) days after the date of the submission by Redeveloper of all required information in complete and final form (“Consistency Determination Review Period”). If the Township determines the Planning Board Application does not conform in all material respects with the Project Description, this Agreement and the Exhibits attached hereto, and/or the Redevelopment Plan, then the Township shall notify Redeveloper within the Consistency Determination Review Period in reasonable detail of the changes required for the Planning Board Application at issue to so conform and the Parties shall work diligently to achieve a mutually-acceptable submission. Redeveloper shall adhere to the concepts and spirit set forth in the Project Description and the Exhibits attached hereto in completing the design development process for the Project, and the Consistency Determination will be conducted in recognition of same. If the Township fails to respond within the Consistency Determination Review Period, the Township shall be deemed to have approved the submitted materials.
SECTION 6.10 Land Disposition. The Township shall convey land in fee simple interest to the
Redeveloper for the sum of One Dollar ($1.00) and other good and valuable consideration which the Parties agree is sufficient. Redeveloper’s acquisition of the Property from the Township shall be subject to the purchase option set forth in Section 3.01(l) herein above.
SECTION 6.11 Closing. Subject to the terms and conditions of this Agreement and the Settlement
Agreement, the Closing shall occur within thirty (30) days after Redeveloper’s receipt of final, non- appealable site plan approval for the Project, or such later date as Redeveloper shall determine, provided that all funding for construction and completion of the Project, including applicable tax credits, shall close simultaneously therewith. The Property Transfer Request shall be delivered by Redeveloper no fewer than thirty (30) days prior to the anticipated Closing Date, unless waived or modified in accordance with the Settlement Agreement.
At the Closing, the Township shall convey to the Redeveloper, or an entity affiliated with Redeveloper and designated in writing, good and marketable fee simple title to the Project Site, free and clear of all liens, encumbrances, restrictions, covenants, and easements of any nature, except only as expressly contemplated by the Settlement Agreement or accepted by Redeveloper in writing. The Township shall be responsible for all transfer fees and recording fees. The Closing Payment, the escrow of the deed to the Project Site and the deed to the 9 Main Street Site, the escrowed Releases, the release of escrowed funds and documents, the return or destruction of escrowed documents, and any deed reversion language shall be governed by the Settlement Agreement and the Escrow Agreement, and nothing contained in this Agreement is intended to modify or supersede those provisions.
The Parties may, by mutual written agreement, waive any condition to Closing to the extent permitted by the Settlement Agreement.
Notwithstanding anything to the contrary contained herein, Redeveloper shall be entitled to develop only one project under the Settlement Agreement, either the Project on the Project Site or the 9 Main Project, but not both. In no event shall Redeveloper have the right to acquire, develop, or construct on both the Project Site and the 9 Main Street Site, and any rights concerning the 9 Main Street Site shall be exercised solely in accordance with the Settlement Agreement.
ARTICLE VII
PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
SECTION 7.01 Prohibition Against Transfers. The Redeveloper recognizes theimportance of the Project to the general welfare of the community and that the identity of the Redeveloper and its qualifications are critical to the Township in entering into this Agreement. The Parties acknowledge and agree that a change in ownership of the Redeveloper from that which is noted in Exhibit E attached hereto, or any other act or transaction involving or resulting in a significant change with respect to the identity of the parties in control of the Redeveloper is, for practical purposes, a transfer or disposition of the Project then owned by the Redeveloper.
Except for Permitted Transfers, prior to the issuance of a Certificate of Completion, the Redeveloper shall not, without the prior written consent of the Township (a) effect or permit anychange, directly or indirectly, in the majority ownership or control of the Redeveloper (except in the case of death of an individual(s) having or affecting such ownership or control; (b) assign or attempt to assign this Agreement or any rights herein or in the project; or (c) make any total or partial sale, lease, transfer or conveyance of the whole or any part of its interest in the Project (collectively a “Transfer”).
SECTION 7.02 Permitted Transfers Shall mean the following transfers, subject to the terms and limitations herein: (a) utility, access, and other easements or open space easement to benefit the public; (b) a mortgage or mortgages and other security (including, but not limited to, collateral assignment of this Agreement to the mortgage holder to be effective, at the option of the mortgagee, upon default by Redeveloper under the mortgage documents), for the purposes of: (i) financing any aspect of the Project, including, but not limited to, the Redeveloper’s acquisition of and/or Redevelopment of the Project Site or the construction of the Infrastructure Improvements; and for no other purpose, provided that the occurrence of an Event of Default as to Redeveloper hereunder after the giving of any applicable notice and expiration of any applicable cure period constitutes an event of default by Redeveloper under the loan documents documenting such financing after the giving of any applicable notice and expiration of any applicable cure period; and (ii) permanent financing upon substantial completion of construction of the Project; (c) transfers by operation of law as a result of death of any individual; (d) lease or license of all or any portion of the Project Site to a qualified commercial operator or residential tenant, as the case may be, including any lease of a unit in the ordinary course of business, provided that the occupancy under such lease occurs following the issuance of a Certificate of Occupancy as to the applicable unit, as applicable; (e) environmental covenants and restrictions imposed by a regulatory agency as a condition of any permit or approval; (f) the Redeveloper’s Declaration and the Affordable and Workforce Housing Declaration; (g) transfers of any ownership interest in the Project to an affiliate of the Redeveloper, which may include an assignment of Redeveloper’s rights and interest under this Agreement to one or more affiliated entities in order to execute the financing required to complete the Project; (h) transfers of any ownership interest in the Project to the ultimate tax credit investor or its affiliates; (i) the removal and/or replacement of any general partner of Redeveloper by the ultimate tax credit investor or its affiliates; and (j) the purchase of the Property by the Township pursuant to Section 3.01(l) of this Agreement.
SECTION 7.03 Transfers Void. Any transfer of the Redeveloper’s interest in violation of this Article 7 shall be an Event of Default of the Redeveloper of the Redeveloper and shall be null and void ab initio. Such Event of Default shall entitle the Township to seek all remedies available under the terms hereof, and those available pursuant to law or equity, including termination of this Agreement. The Declaration shall contain a restriction against transfers as set forth in this Article 7 and, in addition, shall provide that in the event of any attempted transfer in violation of the restrictions in this Article 7 the Township shall be entitled to the ex parte issuance of an injunction restraining such Transfer, and the award of legal fees and related expenses of the Township in connection with any such legal action. Upon the recording of the Declaration in the Office of the Essex County Clerk, the provision affording such injunctive relief shall have the same force and effect as Notice of Lis Pendens. Upon recording of the Certificate of Completion, the provisions of the Declaration set forth in this Article 7 shall deemed terminated for the project.
SECTION 7.04 Notice of Permitted Transfers. With respect to any Permitted Transfer (excluding any Indirect Ownership Transfers), Redeveloper shall provide to the Township written notice at least five (5) business days prior to such Permitted Transfer, including a description of the nature of such Permitted Transfer, and the name(s) and address(es) of the Transferee parties, individuals and/or entities involved, except that for transfers by operation of law as a result of death of any individual or environmental covenants and restrictions imposed by a Governmental Body as a condition of a permit or Governmental Approval, including a Response Action Outcome, Redeveloper shall provide written notice within fourteen (14) days after such Permitted Transfer.
ARTICLE VIII MORTGAGE FINANCING
SECTION 8.01 Limitation Upon Encumbrance of Property. Prior to the completion of the Project as certified by the Township, neither the Redeveloper nor any successor in interest to the Property or any part thereof shall engage in any financing or any other transaction trading any mortgage or other encumbrance or lien upon the Property, whether by express agreement or operation of law or suffer any encumbrance or lien to be made on or attached to the Property, except for the purposes of obtaining funds only to the extent necessary for constructing the Project. The Redeveloper (or successor-in-interest) shall notify the Township in advance of any financing, secured by any mortgage or similar lien instrument, it proposes to enter into with respect to the Property, or any part thereof, and in any shall promptly notify the Township of any encumbrance or lien that has been created on or attached to the Property whether by voluntary act of the Redeveloper or otherwise. As of the Effective Date, the Township shall not cause any lien or restriction to be placed on the Property, except if the Redeveloper provides prior written consent.
SECTION 8.02 Obligations of Mortgagee. Notwithstanding any of the provisions of this Agreement, a Mortgagee authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the Project or to guarantee such construction or completion; provided that nothing in Article 8 shall be deemed or construed to permit or authorize any such Mortgagee to devote the Project or any part thereof to any uses, or to construct any project thereon, other than those uses provided or permitted under the Governmental Approvals, Applicable Laws and this Agreement.
SECTION 8.03 Notice of Default to Mortgagee and Tax Credit Investor; Right to Cure.Whenever the Township shall deliver any notice or demand to the Redeveloper with respect to any breach of default by the Redeveloper under this Agreement, the Township shall at the same time deliver to each Mortgagee (and such other lenders financing the Project) and/or tax credit investor a copy of such notice or demand; provided that the Redeveloper has delivered to the Township a written notice of the name and address of such Mortgagee (and such other lenders financing the Project) and/or tax credit investor. Each such Mortgagee (and such other lenders financing the Project) and/or tax credit investor shall (insofar as the rights of the Township are concerned) have the right at its option within ninety (90) days after the receipt of such notice, to cure or remedy, or to commence to cure or remedy, any such default with respect to that portion of the Project which is being financed by such Mortgagee (and such other lenders financing the Project) and/or tax credit investor and which is subject to being cured and to add the cost thereof to the debt and the lien which it holds, or to the obligations of the lessees under any lease-back or of the guarantor under any other conveyance for financing.
SECTION 8.04 Township’s Option to Pay Mortgage Debt or Purchase Property. In any
case where, subsequent to default or breach by the Redeveloper (or successor-in-interest) under this Agreement, the holder of any mortgage on the Property or part thereof;
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Has, or does not exercise, the option to construct or complete the Project or part thereof covered by its mortgage or to which it has obtained title, and such failure of the holder to operate its option continues for a period of sixty (60) days if the holder has been notified or informed of the default or breach; or
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Undertakes construction or completion of the Project but does not complete such construction within the period as agreed upon by the Township and such holder (which period shall in any event be at least as long as the period prescribed for such construction or completion in this Agreement), and such default shall not have been cured within sixty (60) days after written demand by the Township to do so, then the Township may (and every mortgage instrument made prior to completion of the Project by the Redeveloper or any successor-in-interest shall so provide) pay to the holder the amount of the mortgage debt and obtain an assignment of the mortgage and the debt secured thereby, or, in the event ownership of the Property (or part thereof) has vested in such holder by way of foreclosure or action in lieu thereof, the Township shall be entitled, at its option, to a conveyance to it of the Property or part thereof (as the case may be) upon payment of such holder of any amount equal to the sum of: (i) the mortgage debt at the time of foreclosure or action in lieu thereof (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings: (ii) all reasonable expenses with respect to the foreclosure; (iii) the next expense, if any (exclusive of general overhead), incurred by such holder in and as a direct result of the subsequent management of the Property; (iv) the cost of any improvements made by such holder; (v) an amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts been come a part of the mortgage debt and such had continued in existence.
SECTION 8.06 Township’s Option to Cure Mortgage Default. In the event of a default or breach prior to the completion of the Project by the Redeveloper, or any successor-in-interest, in or of any of its obligations under and to the holder of, any mortgage or other instrument creating an encumbrance or lien upon the Property or part thereof, the Township may at its option cure such default or breach in which case the Township shall be entitled, in addition to and without limitation upon any other rights or remedies to which it shall be entitled by this Agreement, operation of law, or otherwise, to reimbursement from the Redeveloper or successor in interest of all costs and expenses incurred by the Township incurring such default or breach and to lien upon the Property (or the part thereof to which the mortgage, encumbrance, or lien relates) for such reimbursement; provided, however, that any such liens shall be subject always to the lien of (including any lien contemplated, because of advances yet to be made, by) any then existing mortgages on the Property authorized by this Agreement.
SECTION 8.07 Mortgage and Holder. For the purpose of this Agreement, the term
“Mortgage” shall include a Deed of Trust or other instrument creating an encumbrance or lien upon the Property or any part thereof as security for a loan. The terms “Holder” in reference to a mortgage shall include any insurer or guarantor of any obligation or condition secured by such mortgage or deed of trust.
SECTION 8.08 Estoppel Certificate. Within thirty (30) days following written request therefore by the Redeveloper, or of any lender, tax credit investor, purchaser, tenant or other party having an interest in the Project, the Township shall issue a signed estoppel certificate either stating this Agreement is in full force and effect and that is no default or breach under this Agreement, or stating the nature of the default or breach or event, if any. In the event the estoppel certificate discloses such a default, breach or event, it shall also state the manner in which such default, breach and/or event may be cured. No more than a reasonable number of estoppel certificates may be requested per year.
SECTION 8.09 Township Liens Subordinate. Notwithstanding anything in this
Agreement to the contrary, any lien on the Property held now by the Township is and shall at all times hereinafter be subject and subordinate to the rights and interests of any Mortgagee and any such other lenders financing the Project. The Township agrees to execute and deliver, without the need for any further resolution or further agreement by the Township Committee and upon the request of any Mortgagee or any such other lender financing the Project, a recordable and duly authorized instrument confirming the subordination of any such lien held by the Township. It is expressly understood by the parties that this provision shall not apply to municipal tax liens or liens for municipal services after the transfer of title to the Redeveloper.
ARTICLE IX EVENTS OF DEFAULT
SECTION 9.01 Events of Default. Any one or more of the following shall constitute an Event of Default hereunder, subject to Section 4.04:
a. Failure of the Redeveloper to observe or perform any covenant, condition, representation, warranty, or agreement contained herein, and continuance of such failure for a period of thirty (30) days after written notice from the Township specifying the nature of such failure; provided, however, that if such default cannot reasonably be cured within such thirty (30) day period, the Redeveloper shall not be in default so long as it commences to cure within such period and thereafter diligently prosecutes such cure to completion, but in no event later than one hundred twenty (120) days after such notice.
b. With respect to any alleged default by the Township, the notice, cure periods, and remedies shall be governed by the Settlement Agreement. (i) The Redeveloper shall have applied for or consented to the appointment of a custodian, receiver, trustee or liquidator of all or a substantial part of its assets; (ii) a custodian shall have been legally appointed with or without consent of the Redeveloper: (iii) the Redeveloper, (A) has made a general assignment for the benefit of creditors or (B) has filed a voluntary petition in bankruptcy or a petition or an answer seeking an arrangement with creditors or has taken advantages of any insolvent law;
(iv) the Redeveloper has filed an answer admitting the material allegations of a petition in any bankruptcy or insolvency proceeding; (v) the Redeveloper shall take any action for the purpose of effecting any of the foregoing; (vi) a petition in bankruptcy shall have been filed against the Redeveloper, and shall not have been dismissed for a period of ninety (90) consecutive days; (vii) an order for relief shall have been entered with respect to or for the benefit of the Redeveloper, under the bankruptcy code; (viii) an order, judgment or decree shall have been entered, without the application, approval or consent of the Redeveloper, by any court of competent jurisdiction appointing a receiver, trustee, custodian or liquidator of the Redeveloper, or a substantial part of its assets and such order, judgment or decree shall have continued unstayed and in effect for any period of ninety (90) consecutive days; or (ix) the Redeveloper shall have suspended the transaction of its usual business.
c. The Redeveloper shall default in or violate its obligations with respect to the construction of the Project in accordance with this Agreement, the Construction Schedule the Governmental Approvals or Applicable Laws or, including but not limited to, failure to comply with the Commencement of Construction and Completion of Construction, shall abandon or substantially suspend construction work (unless such suspension arises out of a delay set forth in Article 10), and any such default, violation, abandonment or suspension shall not be cured, ended, or remedied within ninety (90) days after written demand by the Township to do so (provided that is shall not be an event of default in the Redeveloper is proceeding with due diligence to remedy the same as soon as practicable).
d. The Project shall not be complete, as evidenced by a Certificate of Completion, on the Completion Date, as may be extended pursuant to Section 4.05 and 4.06 or as otherwise provided in this Agreement, and such default shall not be cured within ninety (90) days after written demand by the Township.
e. The Redeveloper, its successor, or assigns shall fail to pay any real estate taxes, assessment on the Property or any part thereof when due, shall fail to pay any payments required under this Agreement, or shall place on the Property any encumbrance or lien unauthorized by this Agreement, or shall suffer any levy or attachment to be made, or any materialmen’s or mechanics’ lien, or any other unauthorized encumbrance or lien to attach and such real estate taxes or provision satisfactory to the Township made for such payment, removal, or discharge, within sixty (60) days after written demand by the Township to do so.
f. There is, in violation of the Agreement, a Transfer or assignment or a lien placed against the Property as prohibited in Article VII.
g. Failure of redeveloper to submit a complete application for PILOT payments or site plan approval as set forth in the Construction Schedule.
SECTION 9.02 Notice of Default. Upon the occurrence of an Event of Default as defined and set forth herein, the non-defaulting Party shall notify the defaulting Party, as well as any Mortgagee (and/or such other lenders financing the Project) and/or tax credit investor in writing of the Default. The notice shall set forth with particularity the basis of the Default. The defaulting Party, including the Mortgagee (and/or such other lenders financing the Project) and/or tax credit investor in the case of a default by Redeveloper, shall each have thirty (30) days to cure the Default and that period may be extended, in the discretion of the non-defaulting Party, provided that the curing party is proceeding diligently to cure if the nature of the Default is one that requires additional time to cure. The completion of a cure by the Mortgagee (and/or such other lenders financing the Project) and/or tax credit investor shall be acceptable to the Township as if completed by the Redeveloper.
SECTION 9.03 Remedies Upon Default: Termination.
a. Upon an Event of Default by the Township which is continuing and remains uncured beyond any applicable notice and cure dates, the Redeveloper may (i) take whatever action at law or in equity, as may appear necessary or desirable to enforce the performance or observance of any rights under this Agreement, including an action for specific performance or damages or the filing of a motion to enforce litigant’s rights in the DJ Action or (ii) exercise its right to terminate this Agreement upon ninety (90) days written notice to the Township.
b. Upon an Event of Default by the Redeveloper which is continuing and remains uncured beyond applicable notice and cure dates, the Township may terminate this Agreement and/or take whatever action at law or in equity, as may appear necessary or desirable to enforce the performance or observance of any rights under this Agreement, including an action for specific performance or damages.
c. In the event a Holder has not undertaken an interest in the Project or does not exercise its rights pursuant to Section 8.04, the Township, in its sole discretion, may exercise a right to take the Property back from the Redeveloper, at a cost equal to all Redevelopment costs incurred by the Redeveloper to that point.
SECTION 9.04 Remedies Cumulative. No remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of anyone or mere remedies shall not constitute a waiver of the right to pursue other available remedies.
SECTION 9.05 Mitigation. The Parties shall act reasonably to mitigate any damages which may be incurred as the result of an Event of Default hereunder.
ARTICLE X DELAYS
SECTION 10.01 Force Majeure. Performance by either Party hereunder shall not be
deemed to be in default where delays or failure to perform are the result of the following acts, events or conditions or any combination thereof that has or may be reasonably expected to have a direct, material, adverse effect on the rights or obligations of the Parties to this Agreement; provided however, that such set event or condition shall be beyond the reasonable control of the party relaying thereon as justification for not performing an obligation or complying with any condition required of such Party under the terms of this Agreement (“Force Majeure”):
a. An act of God, lighting, blizzards, hurricane, tornado, earthquake, acts of public enemy, war (whether or not declared), terrorism, blockade, insurrection, riot, or civil disturbance, sabotage or similar occurrence, a health emergency, pandemic or epidemic, but not including reasonably anticipated weather conditions for the geographic area of the Property, other than those specifically set forth above (such events being required to physically affect a Party’s ability to fulfill its obligations hereunder); the consequential effect of such events (e.g. impact on market conditions) shall not be considered a Force Majeure event.
b. A landslide, fire, explosion, flood, or release of nuclear radiation not created by an act or omission of either Party;
c. The order, judgment, action or inaction, and/or determination of any Governmental Body (other than the Township, or any board, commission, or other authority controlled by the Township, when acting in conformance with this Agreement) with jurisdiction over the Party relying thereon or the Project excepting decisions interpreting federal, State and local tax laws generally applicable to all business taxpayers, adversely affecting the construction of the Project; provided however, such order, judgment, action and/or determination shall not be the result of the willful, intentional, or negligent action or inaction of the Party relying thereon and that neither the contesting of any such order, judgments, action, and/or determination, in good faith, nor the reasonable failure to so contest, shall constitute or be construed as a willful, intentional or negligent action or inaction by such Party;
d. The suspension, termination, interruption, denial, or failure of or delay in renewal or issuance of any other Governmental Approval, provided, however, such suspension, termination, interruption denial, or failure of or delay renewal of issuance shall not be the result of the willful, intentional, or negligent action or inaction of the Party relying thereon and that neither the contesting of any such suspension, termination, interruption, denial or failure of renewal or issuance, in good faith, nor the reasonable failure to so contest, shall constitute or be construed as a willful, intentional or negligent action or inaction by such Party. Delay in issuance of a Governmental Approval resulting from the Redeveloper’s failure to make an administratively complete submission for a Governmental Approval shall not be an event of Force Majeure; or
e. Strikes, lockouts, slowdowns, labor disputes or similar labor action by trade unions or any of their members, equipment manufacturers, suppliers of material and/or transporters of same, and/or the suspension, interruption or delay in any construction or completion obligations of the Redeveloper obligation due to documented supply chain issues or delivery delays that are beyond the Redeveloper’s reasonable control.
The acts, events, and conditions described above are intended to supplement, and not limit, the Force Majeure Events recognized under Section 9.5 of the Settlement Agreement. In the event of any inconsistency regarding the scope or application of Force Majeure, Section 9.5 of the Settlement Agreement shall govern. Notice by the Party claiming such extension. shall be sent to the other Party within thirty (30) calendar days of the commencement of the cause. During any Force Majeure that affects part of the Project, the Redeveloper shall continue to perform its obligations for the rest of the Project. The existence of an act of Force Majeure shall not prevent a Party from declaring the occurrence of an Event of Default by the Party relying on such Force Majeure; provided that the event that is the basis of the Event of Default is not a result of the Force Majeure.
To invoke Force Majeure, the Party whose performance is delayed by the occurrence of an Event of Force Majeure must give written notice thereof to the other Party or parties as soon as reasonably practicable and (a) if such notice is timely given, the tolling and extension period shall be calculated from the first day of the occurrence of the event of Force Majeure, or (b) if such notice is not timely given, the tolling period shall be calculated from the date of the giving of the applicable notice.
ARTICLE XI INDEMNIFICATION AND INSURANCE
SECTION 11.01 Indemnification.
a. In addition to the Indemnification obligations set forth in Sections 6.07 and 14.06(a), the Redeveloper agrees to indemnify and hold harmless and defend Township Indemnified Parties, and the Redeveloper shall pay any and all Claims resulting from Redeveloper’s willful misconduct, negligence, and acts or omissions in connection with the Project, and/or Infrastructure Improvements including those arising out of or related to any contract or sub-contract related to the Project, provided nothing herein shall require the Redeveloper to indemnify against Claims to the extent caused by or resulting from an Excepted Claim as that term is defined herein.
b. An Excepted Claim is any Claim as set forth above, except to the extent any Claim is caused by the sole negligence or willful misconduct, or acts or omissions of Township and/or the Township Indemnified Parties, as determined by a judgment or order or agreement by the Parties (collectively, the “Excepted Claims”).
c. In any situation where the Township Indemnified Parties are entitled and desire to be defended and/or indemnified by the Redeveloper, the Township Indemnified Parties shall provide notice of same within thirty (30) days to the Redeveloper. Failure to provide prompt notice to the Redeveloper, however, shall not relieve the Redeveloper of any responsibility to defend and indemnify the Township Indemnified Parties, unless such failure to provide prompt notice materially impairs the Redeveloper’s ability to defend the Claim. Upon receipt of such notice, the Redeveloper shall defend any such Claim on behalf of the Township Indemnified Parties and shall be responsible for the payment of all reasonable fees, costs and expenses associated with the Claim, including, but not limited to, reasonable fees for legal counsel. All of the Township Indemnified Parties shall have the right to employ legal counsel in any such action and to participate in the defense thereof, at their sole cost and expense.
d. Township and Redeveloper shall have the right to negotiate and consent to any settlement of a Claim; provided however, that neither Party’s consent shall be unreasonably withheld, conditioned or delayed. Neither the Township nor the Redeveloper shall be liable for any settlement effectuated without its consent, provided it is not unreasonably withheld, conditioned or delayed.
e. The provisions of this section, shall survive and shall run with the land for Claims which arose prior to the earlier of: (i) issuance of a Certificate of Completion for the Project; or (ii) the termination of this Agreement.
SECTION 11.02 Insurance General Requirements. From and after the date of execution of this Agreement, the Redeveloper shall provide and maintain, or cause to be maintained, insurance for the Property as provided below until the Certificate of Completion has been issued with regard to the Project. The Redeveloper shall furnish the Township with satisfactory proof it has obtained the insurance described below from insurance companies or underwriters reasonably satisfactory to the Township. The Redeveloper shall furnish to the Township certificates for the following types of insurance showing the type, amount, and class of operations insured, and the effective and expiration dates of the policies and including evidence of all required policy conditions. The certificates shall be submitted promptly upon execution of this Agreement and the Redeveloper shall not be entitled to exercise any rights hereunder until the certificate has been received and verified. Policies and their respective endorsements as may be relevant to this agreement shall be made available to the Township at its request and in its sole discretion. It is hereby agreed that said policies shall be maintained in full force and effect at the sole cost of the Redeveloper for the life of this agreement and for a period of not less than three (3) years thereafter (except for the Builder’s Risk policy which does not need to extend beyond the life of this Agreement).
SECTION 11.03 Insurance Required.
a. All insurance policies required by this Article 11 shall be obtained from insurance companies authorized to conduct business in the State and rated at least A- VII per A.M. Best.
b. All insurance policies required by this Section shall be non-assessable and shall contain language to the effect that the policies cannot be cancelled or materially changed except after thirty (30) days written notice by the insurer to the Township (excepting ten (10) days for cancellation due to non-payment of premium). All such insurance shall have deductibles or retentions reasonably satisfactory to the Township. The Redeveloper shall be responsible to pay any deductible amount under all insurance policies. All such Liability insurance policies required shall name the Township as an Additional Insured for both Ongoing and Completed Operations, wherever applicable, shall provide coverage on a Primary & Non-Contributory basis, and shall include a Waiver of Subrogation in favor of the Township to the extent permitted by law. The Township acknowledges that waiver of subrogation is not available on Workers Compensation in the state of New Jersey.
c. The Redeveloper shall furnish or cause to be furnished to the Township evidence satisfactory to the Township of Commercial General Liability Insurance in the amount of $1 million per occurrence and $2 million general aggregate, along with Umbrella Excess Liability Coverage (prior to Commencement of Construction, with limits of $10 million; from the time period following Commencement of Construction through receipt of a Certificate of Completion, limits of $15 million; and following receipt of a Certificate of Completion, limits of $10 million) insuring Redeveloper against losses, costs, liabilities, claims, cause of action and damage for bodily injury property damage and personal injury in the project, or related to the construction thereon, claims made by subcontractor personnel.Such insurance shall include blanket contractual liability coverage. All such policies shall be written to apply to all bodily injury, property, damage, personal injury, and other customary covered losses, however, occasioned, occurring during the policy term.
d. The Redeveloper shall furnish or cause to be furnished to the Township evidence satisfactory to the Township of Builder’s Risk Insurance for the benefit of the Redeveloper (subject to the interests of any lender or Mortgage), during the term of construction, sufficient to protect against loss or damage resulting from fire and lighting, the standard extended coverage perils, vandalism, and malicious mischief.
e. Prior to commencement of construction, the Redeveloper shall furnish or cause to be furnished to the Township evidence satisfactory to the Township of Commercial Auto Liability of not less than $1 million combined single limit, providing coverage for all owned, hired and non-owned vehicles used in the performance of this Agreement.
f. The Redeveloper shall furnish or cause to be furnished to the Township evidence satisfactory to the Township of worker’s compensation insurance as required by law, and including employers’ liability of amounts not less than $1 million. As respects any individuals potentially opting out of the Workers Compensation coverage, it is hereby agreed that no such individuals shall be permitted to perform work in connection with this agreement.
g. The Redeveloper shall furnish or cause to be furnished the Township evidence reasonably satisfactory to the Township that any consultant with whom it has contracted for work on the Project, carries professional liability or errors and omissions insurance with amounts not less than $1 million, naming the Township as an additional insured, with confirmation that no Insured v. Insured exclusion exists within the Policy. Said coverage shall be primary and non-contributory and shall waive subrogation in favor of the Township. As respects any claims-made coverages, any combination of renewal policies and extended reporting periods may be used to satisfy such time period; however, no extended reporting period shall be affected for the work under this agreement until after the last work has been completed. Likewise, any retroactive dates, or the similar, must be no later than the effective date of this agreement.
h. The Redeveloper shall furnish or cause to be furnished the Township evidence reasonably satisfactory to the Township of that subcontractors performing the excavation work in connection with constructing the Project and Remediation have Contractors Pollution Liability with amounts not less than $5 million. Said coverage shall apply to the Contractor’s ongoing and completed operations. As respects any claims-made coverages, any combination of renewal policies and extended reporting periods may be used to satisfy such time period; however, no extended reporting period shall be affected for the work under this agreement until after the last work has been completed. Likewise, any retroactive dates, or the similar, must be no later than the effective date of this agreement.
ARTICLE XII APPROVAL OF AGREEMENT
SECTION 12.01 Legal Challenges from Other Parties. In the event of any challenge to the Settlement Agreement, this Agreement, the Redevelopment Approvals, the Financial Agreement, or any municipal action, Planning Board approval, Township approval, governmental approval, legislation, or other action taken in furtherance of the Project, the Settlement Agreement, or the 9 Main Project, the Parties shall diligently, vigorously, and jointly defend such challenge and shall fully cooperate in furtherance of the Settlement Agreement. Such joint defense and cooperation shall include vigorous defense against future claims seeking to invalidate or otherwise challenge this Agreement, the Financial Agreement, the Redevelopment Plan, approvals by the Planning Board, Township, or any other governmental entity, or future agreements entered between the Township and Redeveloper related to the Project or the 9 Main Project. The Township shall pay the reasonable costs and fees incurred by Redeveloper in connection with the defense of any challenge to the Township’s municipal actions taken in furtherance of the Settlement Agreement, including challenges to the adoption of any legislation by the Township Committee or approvals granted by the Planning Board, Township, or any other governmental entity, except that the Township’s obligation to pay such costs and fees shall not extend to any action filed directly against Redeveloper that does not challenge the Township’s approvals or actions taken in furtherance of the Settlement Agreement. Unless and until (i) the Township fails to defend such a challenge, or (ii) the Township exhausts all available legal remedies and is unsuccessful in defending such challenge, Redeveloper shall not proceed with development of the 9 Main Project. Nothing contained in this Agreement shall be construed to expand, diminish, or modify the Parties’ respective obligations under Section 3 of the Settlement Agreement.
SECTION 12.02 This Agreement is subject to the Township’s previously Court approved andadopted Housing Element and Fair Share Plan.
ARTICLE XIII MISCELLANEOUS
SECTION 13.01 Conflict of Interest. No member, official or employee of the Townshipshall have any direct or Indirect Interest in this Agreement, nor participate in any decision relating to this Agreement that is prohibited by law.
SECTION 13.02 No Consideration for Redevelopment Agreement. The Redeveloper warrants it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers, financial consultants and attorneys. The Redeveloper further warrants it has not paid or incurred any obligation to pay any officer or official of the Township, any money or other consideration for or in connection with this Agreement.
SECTION 13.03 Non-Liability of Officials and Employees of the Township. No member, official, appointee, or employee of the Township shall be personally liable to the Redeveloper, or any successor-in-interest, in the event of any default or breach by the Township, or for any amount which may become due to the Redeveloper or its successor, or on any obligation under the terms of this Agreement.
SECTION 13.04 Non-Liability of Officials and Employees of the Redeveloper. No member, officer, shareholders, director, partner, or employee of the Redeveloper, and no member, officer, shareholders, director, partner, or employee of the members of the Redeveloper or the members of the Redeveloper shall be personally liable to the Township, or any successor-in- interest, in the event of any default or breach by the Redeveloper or for any amount which may become due to the Township or their successors, on any obligation under the terms of this Agreement.
SECTION 13.05 Inspection of Books and Records.
a. The Township shall have the right at all reasonable times to inspect the books and records of the Redeveloper pertinent to the purposes of this Agreement, including but not limited to construction contracts, books and records, leases, insurance policies, and agreements.
b. The Redeveloper shall have the right at all reasonable times to inspect the books and records of the Township pertinent to the purposes of this Agreement.
c. Such inspections must be performed at a time and in a manner as to not unreasonably interfere with the business operations of the party whose books and records are being inspected and be for a legitimate business purpose affecting the material interest of the party seeking the inspection.
SECTION 13.06 Modification of Agreement. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid unless the same is in writing, duly authorized by a vote of the Township Committee, and signed by the Redeveloper and the Township. Notwithstanding the foregoing, the Township shall consent to reasonable, non-material modifications to this Agreement that are requested by the Redeveloper’s tax credit investor or lender within 20 days of the Redeveloper’s request, including by scheduling special meetings of the Township Committee if necessary to meet that deadline.
SECTION 13.07 Notices and Demands. A notice, demand, or other communication under this Agreement by any Party to the other shall be sufficiently given or delivered if dispatched by United States Registered or Certified Mail, postage prepaid and return receipt requested or delivered by overnight courier or delivered personally (and receipt acknowledged ) to the Parties at their respective addresses set forth herein, or at such other address or addresses with respect to the Parties or their counsel as nay party may, from time to time, designate in writing and forward to the others as provided in this Section 13.07. Notice shall be effective upon the earlier of receipt or refusal.
TO REDEVELOPER: RPM DEVELOPMENT, LLC:
Attention: Edward G. Martoglio 77 Park Street Montclair, NJ 07924 Fax: 973-783-7056
With a Copy to: Day Pitney LLP
Craig M. Gianetti, Esq One Jefferson Road Parsippany, NJ 07054-2891
TO THE TOWNSHIP OF MILLBURN:
Attention: Alexander McDonald, Business Administrator
375 Millburn Avenue Millburn, NJ 07041
With a Copy to: Joseph P. Baumann, Esq.
McManimon, Scotland & Baumann, LLC 75 Livingston Avenue, Suite 201 Roseland, NJ 07068
In the event any of the individuals above has a successor, the individual identified shall name the successor and notify all others identified of their successor.
SECTION 13.08 Severability. The validity of any Articles, clause or provisions of this Agreement shall not affect the validity of the remaining Articles, clauses or provisions hereof.
SECTION 13.09 Successors Bound. This Agreement shall be binding upon the respective Parties hereto and their successors and assigns.
SECTION 13.10 Governing Law: Dispute Resolution. This Agreement shall be governed by and construed by the laws of the State of New Jersey, any disputes arising hereunder shall be resolved in the Superior Court of New Jersey, Essex County Vicinage.
SECTION 13.11 Counterparts. This Agreement may be executed in counterparts. All such counterparts shall be deemed to be originals and together shall constitute but one and the same instrument.
SECTION 13.12 Entire Agreement. This Agreement shall be read and construed together with the Settlement Agreement. In the event of a direct conflict between this Agreement and the Settlement Agreement, the Settlement Agreement shall control solely to the extent necessary to resolve such conflict. Except as expressly provided herein or in the Settlement Agreement, this Agreement constitutes the entire agreement of the Parties with respect to the redevelopment of the Project Site. The Parties further acknowledge that the Settlement Agreement preserves certain rights and remedies relating to the 9 Main Street Project. Nothing in this Agreement is intended to modify or waive those rights or remedies, and any rights relating to the 9 Main Street Project shall be exercised in accordance with the Settlement Agreement.
SECTION 13.13 Review by Counsel. This Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey without regard to or any presumption or another rule requiring construction against the party drawing or causing this Agreement to be drawn since counsel for both the Redeveloper and the Township have combined in their review and approval of same.
ARTICLE XIV
RIGHT OF FIRST REFUSAL AND PURCHASE NEGOTIATIONS
SECTION 14.01 Township’s Right of First Refusal. The Township (or a public or private non-profit entity designated by the Township), shall have the right to acquire the Project (including land and improvements) from the Redeveloper beginning upon expiration of the 15-year initial compliance period of the Low-Income Housing Tax Credit program following the completion of the Project. The purchase price for such acquisition shall be the sum of the following amounts:
a. Assumption or repayment of the first mortgage debt on the Project;
b. Assumption or repayment of all subordinated debt on the Project;
c. Payment of any fees, debts, or liabilities owed to the Redeveloper or affiliates thereof, including, but not necessarily limited to, developer fees, property management fees, and operating deficit loans;
d. Any other third-party debt owed by Redeveloper in connection with the Project; (e) Payment to the Redeveloper of the federal and New Jersey tax obligations (if any) which Redeveloper and its tax credit investor will be liable as a result of the termination of their ownership interests in the Project as a result of the sale.
This provision is designed to be in accordance with Section 42 of the Internal Revenue Code governing rights of first refusal by non-profit owners and is subject to review and approval by the ultimate tax credit investor.
SECTION 14.02 Notification by Redeveloper. In the event that the Redeveloper decides to sell the Project and the Redeveloper has received a bona fide purchase offer from a third party, the Redeveloper shall notify the Township in writing of said desire to sell, together with all material terms and conditions of such proposed sale, within sixty (60) days from the Redeveloper receiving any offer to purchase the Project by any other party.
SECTION 14.03 Township Notification of Exercising Right to Redeveloper. The Township shall promptly review the offer, and notify the Redeveloper and its tax credit investor of the Township’s interest in purchasing the Project within forty-five (45) days of the receipt of the notice provided in Section 14.02. Failure to notify the Redeveloper within forty-five (45) days shall be deemed as the Township’s desire to not purchase the Project under the provided terms and Redeveloper shall have no further obligations with respect to this Article XIV. The Township’s decision as to whether or not to purchase the Project is solely and exclusively the determination of the Township, and no liability attaches to the Township in the event that the Township decides not to purchase the Project.
SECTION 14.04. Closing For Township Purchase. The closing of a sale of the Project to the
Township pursuant to the right of first refusals under this Article XIV shall occur within ninety (90) days after the Township notifies the Redeveloper of its intent to exercise its right to purchase.
SECTION 14.05 Township’s Opportunity to Negotiate Repurchase. Redeveloper acknowledges that the Township shall have the opportunity to negotiate with the Redeveloper to repurchase the Project at any time after the expiration of the Compliance Period for its Low- Income Housing Tax Credits.
SECTION 14.06. Tax Credit Investor Buyout and Resyndication. Any acquisition of the
tax credit investor’s interest in the Project by Redeveloper after the expiration of the Compliance Period shall not trigger the Township’s right of first refusal. Any determination by the Redeveloper to undertake a new Low-Income Housing Tax Credit transaction after the expiration of the Compliance Period shall reset the term of the Township’s right of first refusal to being after any subsequent Low Income Housing Tax Credit Compliance Period(s).
Remainder of Page Intentionally Left Blank.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be properly executed and their corporate seals affixed and attested as of the date first written above.
Witness/Attest:
RPM DEVELOPMENT, LLC By: EDWARD G. MARTOGLIO
Chief Executive Officer
Dated:
Witness/Attest:
TOWNSHIP OF MILLBURN
By: FRANK SACCOMANDI as its MAYOR
