DPW SITE REDEVELOPMENT AREA
By and Between
THE TOWNSHIP OF EVESHAM TOWNSHIP COUNCIL
Redevelopment Entity and
XXXXXXX XXXXX AT MARLTON II URBAN RENEWAL, LLC
Developer (Block 16, Lot 1.03)
TABLE OF CONTENTS
Preliminary Statement 1
Definitions and Interpretations 3
PART I - Representations and Warranties of Parties
1. Representations and Warranties by Developer 8
2. Representations and Warranties by the Township 9
3. Mutual Representations 10
PART II – Redevelopment of Project
1. Terms of Purchase and Sale
2. Project Description 11
3. Redevelopment 11
4. Environmental Compliance 12
5. Declaration of Covenants and Restrictions 13
6. Developer Covenants 15
7. Township Covenants 16
8. Implementation of the Project 17
9. Prohibitions Against Assignment and Transfer 19
10. Developer’s Financial Commitments 21
11. Default 22
12. Miscellaneous 25
1. Property Description Exhibit A
2. Redevelopment Plan Exhibit B
3. Developer’s Concept Plan Exhibit C
4. Project Milestones / Timeline Exhibit D
5. Project Costs Exhibit E
6. Certificate of Completion Exhibit F
This REDEVELOPMENT AND PURCHASE AND SALE AGREEMENT
(“Redevelopment Agreement” or “Agreement”), dated as of day of September, 2020, is hereby entered into, by and between the TOWNSHIP OF EVESHAM and EVESHAM TOWNSHIP COUNCIL (“Township” or “Redevelopment Entity”), a municipal corporation of the State of New Jersey, with offices at 000 Xxxxxxxxx Xxxx, Xxxxxxxx xx Xxxxxxx, Xxxxxx of Xxxxxxxxxx, Xxx Xxxxxx 00000 acting in the capacity of Redevelopment Entity pursuant to the provisions of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. and XXXXXXX XXXXX AT MARLTON II URBAN RENEWAL ENTITY, LLC, (“Developer”),
a New Jersey Limited Partnership authorized to do business in the State of New Jersey, with offices at C/X Xxxxx & Xxxxx, 0000 Xxxxx 00 Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000. Together, the Township and the Developer are the “Parties.”
Pursuant to the provisions of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. as amended and supplemented, (“Redevelopment Law”), the Township has undertaken a program for the redevelopment of certain property identified on Exhibit “A” annexed hereto (the “Project Site” or “Property”). The Project Site is currently owned by the Township and will be sold to the Developer under Terms set forth herein. The Developer intends to construct a high quality, cost-efficient redevelopment project at the Project Site in a time frame that is practicable and commercially reasonable.
The Governing Body of the Township has determined that the redevelopment of the Project Site will promote job creation and economic redevelopment within the municipality and the County of Burlington, as well as an attractive project, and therefore fulfills the purposes of the Redevelopment Law. The Township duly adopted Resolution No. 179-2016 on June 21, 2016, which designated the Project Site as an area in need of redevelopment in accordance with the Redevelopment Law. The Township further duly adopted Ordinance No. 14-08-2019 on August 20, 2019 adopting a Redevelopment Plan for Block 16, Lot 1.03, in accordance with the Redevelopment Law. The Township Council has been authorized to act as a Redevelopment Entity to oversee the implementation of such Redevelopment Plan, which is attached hereto as Exhibit “B” and made a part hereof. Fieldstone Associates, L.P. (“Fieldstone”) was selected by Resolution as Developer on July 14, 2020, conditioned upon entry into and execution of this Redevelopment Agreement. At the request of Fieldstone, by Resolution dated , 2020, the Township further designated Developer (an affiliate of Fieldstone) as Developer as the Developer of the Project Site and authorized the execution of this Redevelopment Agreement between the Township and Developer.
Annexed hereto as Exhibit “C” is the Developer’s proposed Concept Plan for redeveloping the Project Site.
Developer maintains that it is in the business of owning, maintaining, and enhancing real property for residential purposes and that it has the financial ability, experience and expertise to redevelop the Property within a reasonable time through its team, in accordance with the provisions
of this Agreement. The Township and Developer both desire and anticipate that the Project will consist of a three-building rental housing project consisting of 91 market rate units and 16 affordable units, with parking and other site improvements.
As a material inducement to the Township, the Developer has agreed, among other things, to: (i) create a project at the Property that is both aesthetically pleasing and will spark revitalization and substantial investment in this area of the Township; (ii) redevelop the Property in accordance with the Developer’s Concept Plan attached as Exhibit “C” (as may be modified by the Parties, in writing, from time to time, pursuant to the Redevelopment Plan and pursuant to the project schedule set forth herein); (iii) reimburse the Township for costs and fees incurred as set forth in this Agreement; (iv) make certain representations and warranties as set forth herein; and (v) tender payment of such escrow, deposits and project payments as set forth herein.
The Township has agreed, among other things, to: (1) maintain and/or adopt zoning Ordinances designed to implement the Redevelopment Plan, as amended from time to time consistent with the Act and the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.;
(2) recommend that its Planning Board review Developer’s site plan application(s) in a timely fashion on an accelerated basis; and enter into a Financial Agreement with the Developer as set forth in Part II, Paragraph 10.d, below.
To effectuate the purposes of the Act, and for and in consideration of the mutual covenants and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party hereto, the Township and Developer hereby agree to comply with this Redevelopment Agreement.
WHEREAS, the Act provides a process for Redevelopment Entities to participate in the redevelopment and improvement of areas designated as in need of redevelopment; and
WHEREAS, in order to stimulate redevelopment for the Township of Evesham, the Township has formally designated the Project Site as an “area in need of redevelopment and/or redevelopment” in accordance with the Act; and
WHEREAS, the Parties have, for the past few months, engaged in discussions directed toward facilitating the redevelopment of the Property in a fashion consistent with the Township’s vision for the downtown Marlton area; and
WHEREAS, the Township believes, according to Developer’s proposal and representations, that Developer is able and willing to implement a Project that will positively affect the surrounding community and further the best interests of the Township and its citizens and the Township desires to designate Developer as its Developer for this site; and
WHEREAS, on July 14, 2020, the Township adopted a Resolution designating Fieldstone as the redeveloper for the Project, and authorized the Parties to execute a Redevelopment Agreement which would allow Fieldstone to be Developer for the Property; and
WHEREAS, on , 2020, the Township adopted a Resolution designating Developer as the redeveloper for the Project Site (subject to the execution of this Redevelopment Agreement) and authorizing the Township to enter into this Redevelopment Agreement
WHEREAS, the Township desires, in accordance with the Township’s Redevelopment Plan, as amended from time to time in consultation with Developer, and, in accordance with related zoning Ordinances and pursuant to law, that Developer implement redevelopment of the Property, which Property Developer currently owns and/or shall acquire upon the terms set forth herein; and
WHEREAS, Developer has demonstrated to the Township an ability to generally implement the type of redevelopment that the Township desires, and
WHEREAS, the Parties desire and mutually agree to enter and execute this Redevelopment Agreement, in order to more fully set forth the terms and conditions pursuant to which the Property shall be acquired and redeveloped, in accordance with redevelopment laws; and
WHEREAS, the Parties are authorized to enter into this Redevelopment Agreement;
NOW THEREFORE, in consideration of the promises and mutual representations, covenants and agreements herein set forth, the Parties hereto, binding themselves, as well as their successors and assigns, do hereby mutually promise, covenant and agree to effectuate the transfer and redevelopment of the Property, as set forth below, pursuant to all laws and approvals.
DEFINITIONS AND INTERPRETATIONS
Definitions. Except as expressly provided herein to the contrary, all capitalized terms used in this Redevelopment Agreement and its Exhibits shall have the following meanings:
“Abandon” or “Abandonment” shall mean the failure of the Developer to process Redevelopment Approval applications, including submission of information required to satisfy any conditions of development approvals, or to proceed with Construction for a period of 60 consecutive days.
“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 Units” is defined in Part II, Paragraph 2.c.
“Applicable Laws” mean all Federal, State and Local laws, ordinances, approvals, rules, regulations and requirements applicable thereto including, but not limited to the Local Redevelopment and Housing Law, the Municipal Land Use Law, the New Jersey Administrative Code, relevant construction codes, and such zoning, sanitary, pollution and other environmental
safety ordinances, laws and such rules and regulations thereunder, including all applicable Environmental Laws and Federal and State labor standards.
“Certificate of Completion” shall mean a certificate issued by the Township pursuant to Part II, Paragraph 5.c.
“Certificate of No Default” is as defined in Part II, Paragraph 8.i hereof.
“Certificate of Occupancy” means a permanent “Certificate of Occupancy”, as the term is used within the New Jersey Administrative Code, N.J.A.C. 5:23-1.4 and N.J.A.C. 5:23-2 et seq., issued with respect to all or a portion of the Project, upon completion of all or a portion of the Project in compliance with all applicable requirements for issuance of such certificate.
“Closing” shall mean that event at which Developer or its Township-approved affiliate(s) or assign(s) shall acquire title to the Property, expressly for Developer’s redevelopment of the Property. The Township has approved the transfers set forth in Part II, Paragraph 9.b below.
“Commence Construction,” “Commencement of Construction” or “Construction” means the undertaking by Developer of any actual physical construction or Project, site preparation, environmental remediation, demolition as directed by the Township, construction of new structures, and installation or improvement of infrastructure.
“Complete” or “Completion” shall mean with respect to the Project or Project Site, the date that the Project may, in all material respects, be used and operated for its intended purpose as evidenced by the issuance of a Certificate of Occupancy.
“Deposit Funds” shall have the meaning set forth in Part II, Paragraph 1.f. “Developer” means Xxxxxxx Square at Marlton II Urban Renewal, LLC.
“Developer Representative” shall mean either Xxxxxxx X. Xxxxx, Xx. or Xxxxxx Xxxxxxx.
“Developer’s Concept Plan” shall mean the concept plan shown on Exhibit C, as same may be amended, from time to time, with the consent of the Township.
“Developer Covenants” are those defined at Part II, Paragraph 6 hereof.
“Due Diligence Period” shall have the meaning set forth in Part II, Paragraph 2.1g. “Effective Date of this Redevelopment Agreement” or “Effective Date” means the last
date on which the Parties execute this Redevelopment Agreement.
“Environmental Laws” are any and all Federal, State, Regional, and Local laws, statutes, ordinances, regulations, rules, codes, consent decrees, judicial and administrative orders, decrees, directives and judgments relating to contamination, damage to or protection of the environment, environmental conditions, or the use, handling, processing, distribution, generation, treatment, storage, disposal, manufacture or transport of Hazardous Substances, presently in effect or hereafter amended, modified, or adopted including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act as amended by Superfund Amendments and Reauthorization Act (“CERCLA”) (42 U.S.C. § 9601 et seq.); the Resource Conservation and Recovery Act of 1976 (“RCRA”) (42 U.S.C. § 6901 et seq.); the Clean Water Act (33 U.S.C. § 1251 et seq.); the Toxic Substances Xxxxxxx Xxx, 00 X.X.X. §0000, et seq.; the Federal Pollution Xxxxxxx Xxx, 00 X.X.X. §0000 et. seq.; the New Jersey Spill Compensation and Control Act (the “Spill Act”) (N.J.S.A. 58:10-23.11 et seq.); the Industrial Site Recovery Act, as amended (“ISRA”) (N.J.S.A. 13:1K-6 et seq.); the New Jersey Underground Storage of Hazardous Substance Act (N.J.S.A. 58:10A-21 et seq.); the New Jersey Water Pollution Control Act (N.J.S.A. 58:10A-1 et seq.); the New Jersey Xxxxxxxxxx and Contaminated Site Remediation Act (N.J.S.A. 58:10B-1 et seq.); the New Jersey Site Remediation Reform Act (N.J.S.A. 58:10C-1 et seq.) the New Jersey Environmental Rights Act (N.J.S.A. 2A:35A-1 et seq.); and the rules, regulations and guidance promulgated thereunder.
“Events of Default” are described in Part II, Paragraph 11.a hereof.
“Escrow,” “Redevelopment Agreement Escrow” or “Total Escrow” means the sum of Ten Thousand Dollars ($10,000.00) which has been deposited by Developer to reimburse the Township for the professional costs and fees incurred by the Township for preparation of this Redevelopment Agreement and for the oversight and implementation of the Redevelopment Agreement and Redevelopment Plan going forward, and any additional deposits required to replenish said escrow. When the amount in escrow drops below the sum of Five Thousand Dollars ($5,000.00), Developer shall replenish the Escrow to the original amount. This escrow is separate and apart from the escrow fees to be paid by the Developer as part of the land use application process under the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
Developer shall have the option of transferring any balance in the redevelopment agreement escrow for the existing Xxxxxxx Square at Marlton redevelopment adjacent to the Project Site to the Redevelopment Agreement Escrow and crediting same against the required $10,000.00 initial deposit required hereunder.
“Escrow Agent” shall mean Surety Title Company, LLC..
“Fieldstone” shall have the meaning set forth in the Preliminary Statement. “Financial Agreement” shall have the meaning set forth in Part II, Paragraph 10.d.
“Force Majeure Event” means any event or condition where delays or failure to perform are the result of the following acts, events or conditions or any combination thereof that has had or may be reasonably expected to have a direct, material, adverse effect on the rights or obligations of the Parties to this Redevelopment Agreement; provided, however, that such act, event or condition shall be beyond the reasonable control of the Party relying thereon as justification for not performing an obligation or complying with any condition required of such Party under the terms of this Redevelopment Agreement (“Force Majeure”):
(a) An act of God, lightning, blizzards, hurricane, pandemic, tornado, earthquake, acts of public enemy, war (whether or not declared), terrorism, blockade, insurrection, riot or civil disturbance, sabotage or similar occurrence, but not including reasonably anticipated weather conditions for the geographic area of the Project, other than those set forth above (such events
being required to physically affect a Party’s ability to fulfill its obligations hereunder);
(b) A landslide, fire, explosion, flood or release of nuclear radiation not created by an act or omission of either Party;
(c) The order, moratorium, judgment, action or inaction and/or determination of any Governmental Body (other than the Township when acting in conformance with this Redevelopment Agreement) with jurisdiction within the Township, 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 in renewal or 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.or
(e) Strikes, lockouts, slowdowns, labor unrest, or similar labor action by trade unions or any of their members, equipment manufacturers, suppliers of material and/or transporters of same.
“Governmental Approvals” means all necessary reviews, consents, permits or other approvals of any kind legally required by any Governmental Body in order to implement the Project including but not limited to the Redevelopment Approvals as that term is defined in this Redevelopment Agreement.
No Governmental Approval shall be deemed to have been issued until all applicable times for appeal have expired without any appeal having been filed challenging the approval or, if an appeal has been filed, such appeal having been resolved fully in favor of Developer and the expiration of time for any further appeal having expired without the filing of such further appeal. No Governmental Approval also shall have been issued if such Governmental Approval is subject to any condition or conditions which would have a material adverse impact on the operations or the finances of the Project.
“Governmental Body” means any Federal State, County or Local Township, department, commission, authority, court, or tribunal, and any successor thereto, exercising executive, legislative, judicial, or administrative functions of or pertaining to government, including, without limitation, the Township of Evesham, the County of Burlington, the State of New Jersey, and the United States Federal Government.
“Hazardous Substance” or “Hazardous Materials” means any hazardous wastes or hazardous substances defined in any Environmental Laws, including, without limitation any asbestos, PCB, noxious or radioactive substance, methane, volatile hydrocarbons, industrial solvents or any other material or substance which would cause or constitute a health, safety or other environmental hazard to any person or property.
“Holder” shall have the meaning set forth in Part II, Paragraph 1.l. “Intersection” shall have the meaning set forth in Part II, Paragraph 1.c.
“Legal Requirements” means all laws, statutes, codes, ordinances, resolutions, binding conditions, orders, regulations and requirements, as amended from time to time, including all Environmental Laws and regulations of federal, state, county and municipal governments.
“Market Rate Units” is defined in in Part II, Paragraph 2.b.. “MLUL” shall have the meaning set forth in Part II, Paragraph 3.b.
“NJDEP” means the New Jersey Department of Environmental Protection and any successors in interest.
“NJDOT” means the New Jersey Department of Transportation and any successors in interest.
“Paragraph” means the numbered paragraphs in this Agreement and all subparagraphs thereof identified by lower case letters, numbers within parentheses, and lower case letters within parentheses.
“Parties” means the Township of Evesham/Evesham Township Council, as Redevelopment Entity and Xxxxxxx Square at Marlton II Urban Renewal, LLC, as Developer pursuant to this Redevelopment Agreement.
“Person” means any individual, sole proprietorship, corporation, partnership, joint venture, limited liability company or corporation, trust, unincorporated association, institution, public or governmental body, or any other entity.
“Planning Board” means the Township’s Planning Board which exercises all of the powers of a Planning Board pursuant to N.J.S.A. 40:55D-1 et seq.
“Project” includes the construction of the Project identified in the Developer’s Concept Plan (Exhibit “C”), as may be amended from time to time with the consent of the Township, fully funded by Developer, including any subdivision and redevelopment of the Property in accordance with a Township-approved Site Plan and adopted Redevelopment Plan, as amended from time to time, the posting of all required performance bonds, providing all required guarantees and insurance coverage, diligently seeking all permits and approvals, and construction of the Project pursuant to all laws, along with site preparation, and satisfaction of all financial obligations due and owing the Township hereunder, including but not limited to timely payment of all Deposits, Escrow and Project Payments.
“Project Site or Property” means that certain site comprising the parcels located within the Township of Evesham described in Exhibit “A” attached hereto.
“Purchase Price” shall have the meaning set forth in Part II, Paragraph 1.a. “Redevelopment Agreement” or “Agreement” means this Redevelopment Agreement by
and between the Township and Developer, all Exhibits to such Agreement, and any written Amendments executed by the Parties.
“Redevelopment Approvals” means: (i) any preliminary and final major subdivision approval subdividing any property of the Project Site into Lots required to implement the Project under the Township’s Redevelopment Plan, as amended from time to time by the Township, based reasonably upon the Developer’s Concept Plan or agreed amended Developer’s Concept Plan, and in accordance with approvals by all appropriate Governmental Bodies; (ii) preliminary and final major site plan approval for the Project issued by the Township’s Planning Board; (iii) Burlington County Planning Board approval of the Project components where required; (iv) written agreements with the governmental Township or utility company providing water service in Township for the construction, installation and operation of a potable water distribution system serving Project components with an adequate supply of potable water; (v) a written agreement with the governmental Township or utility company providing sewage treatment service in the Township for extension of the existing sanitary sewer system to serve Project components; (vi) “will serve” letters in form and substance acceptable to Developer from the providers of electric, natural gas, telephone and cable television to furnish such utilities to Project components; (vii) soil conservation review approvals and permits for Project components; (viii) sewer extension and treatment works approval permits as required for the construction and operation of sanitary sewer lines for the Project components; (ix) curb cut and access permits and approvals and traffic signal approvals for each phase required to be issued by the State of New Jersey, the New Jersey Department of Transportation, the County of Burlington and the Township or any subdivision or Township thereof for Project components; (x) Remediation Permits from the NJDEP (if any are necessary to construct the Project); (xi) any other approval, license, permit, consent or waiver required to be granted or issued by any federal, state, county or municipal Township, or any department, board, authority, Township official or officer thereof having jurisdiction as a prerequisite to securing building permits for all Project (on or off-site) to be constructed in connection with the Project; and, (xii) valid building permits from all governmental authorities having jurisdiction permitting the construction of the subject Project components and all on and off-site Project required to be constructed in connection therewith, and (xiii) State approval for any redevelopment on the Property by Developer, where required. It shall be the Developer’s obligation to diligently seek all Redevelopment Approvals/Governmental Approvals, at Developer’s sole expense.
No Redevelopment Approval shall be deemed to have been issued until all applicable times for appeal have expired without any appeal having been filed challenging the approval or, if an appeal has been filed, such appeal having been resolved fully in favor of Developer and the expiration of time for any further appeal having expired without the filing of such further appeal. No Redevelopment Approval also shall have been issued if such Redevelopment Approval is subject to any condition or conditions which would have a material adverse impact on the operations or the finances of the Project.
“Redevelopment Entity” means the Township Council of the Township of Evesham, Burlington County, New Jersey pursuant to the authority contained in the Act at N.J.S.A. 40A:12A-4.
“Redevelopment Law” means the State statute codified at N.J.S.A. 40A:12A-1 et seq. “Redevelopment Plan” is the Township’s adopted Redevelopment Plan which includes
standards designed to enable the type of development shown on the Developer’s Concept Plan, Exhibit C, as amended from time to time; that includes the Project covered hereunder, as revised and approved in writing by the Township and by Township Council. The current Redevelopment Plan is attached as Exhibit B.
“Remediation Plans” means all remediation plans prepared for, or required by, any governmental authority in connection with the presence, or suspected presence, of any Hazardous Substance or other contaminants on or emanating from any portion of the Property, and shall include remediation permits.
“State” means the State of New Jersey.
“Township” means Evesham Township or Township Council. “Township Covenants” are those set forth at Part II, Paragraph 7 hereof.
“Township Representative” shall mean either Xxxxxx Xxxxxxxx or his successor as manager of the Township or Xxxxxx Xxxxx or her successor as mayor of the Township.
“USEPA” means the United States Environmental Protection Agency.
“Zoning Ordinance” means the Township’s zoning ordinance and all related municipal land use regulations enacted pursuant to N.J.S.A. 40:55D-1 et seq. and N.J.S.A. 40A:12A-1 et seq.
REPRESENTATIONS AND WARRANTIES OF PARTIES
1. Representations and Warranties by Developer. Developer hereby represents and warrants the following to the Township for the purpose of inducing the Township to enter into this Redevelopment Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the Effective Date, and which shall survive this Agreement:
a. Developer is an urban renewal limited liability company authorized to do business in the State of New Jersey. Developer is in good standing under the laws of this State, having all requisite power and authority to carry on its business, and to enter into and perform all of its obligations under this Redevelopment Agreement. Developer shall provide a Certificate of Good Standing to the Township within thirty (30) days of the execution of this Agreement.
b. Developer has the legal power, right and authority to enter into this Redevelopment Agreement and the instruments and documents referenced herein to which Developer is a Party, to consummate the transactions contemplated hereby, to take any steps or actions contemplated hereby, and subject to securing Governmental Approvals, to perform all of Developer’s obligations hereunder.
c. This Redevelopment Agreement is duly executed by Developer and is valid and legally binding upon Developer 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 other instrument to which Developer is a party, including its Operating Agreement.
d. No receiver, liquidator, custodian or trustee of Developer has been appointed, and no petition to reorganize Developer, or any of its members, pursuant to the United States Bankruptcy Code or any similar statute that is applicable to the Developer has been filed.
e. No adjudication of bankruptcy or liquidation of Developer, or any of its members, has been entered, nor has a voluntary, or involuntary, bankruptcy petition been filed by or against Developer, or any of its members, under the provisions of the United States Bankruptcy Code or any other similar statute applicable to the Developer.
f. No indictment has been returned against Developer or against any official of Developer, or any of its members.
g. There is no litigation pending or threatened against Developer.
h. There is no action, proceeding or investigation now pending or threatened, which:
(i) questions the authority of the Developer to enter into this Redevelopment Agreement or any action taken or to be taken by the Developer pursuant to this Redevelopment Agreement; (ii) is likely to result in a material adverse change in the Developer’s property, assets, liabilities or condition of Developer, or any of its members, which could materially
and substantially impair Developer’s ability to perform all obligations pursuant to the terms of this Redevelopment Agreement; or (iii) prevents Developer from complying with this Redevelopment Agreement or any related Agreement.
i. Developer’s execution and delivery of this Agreement, and its performance hereunder, will not constitute a violation of any operating agreement, company, corporate, partnership and/or stockholder agreement of Developer, or of any agreement, mortgage, indenture, instrument or judgment, to which Developer, or any of its members, is a party.
j. All information and statements included in any information submitted to the Township and its agents, including but not limited to Developer’s ownership structure, are true and correct in all material respects. Developer acknowledges that the facts and representations contained in the proposal and supporting information submitted by Developer regarding itself were material factors in the decision of the Township to enter into this Redevelopment Agreement.
k. Developer is financially and technically capable of acquiring/leasing the Property and redeveloping, designing, financing and constructing the Project, in accordance with this Agreement, the Township’s Redevelopment Plan, as amended from time to time, and complying with all Legal Requirements and Governmental Approvals.
2. Representations and Warranties by the Township. The Township hereby represents and warrants the following to Developer for the purpose of inducing Developer to enter into this Redevelopment Agreement, and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof, and all of which shall survive this Agreement:
a. The Township duly adopted Resolution No. 179-2016 on June 21, 2016, which designated the area as in need of redevelopment in accordance with law, as set forth above in the Preliminary Statement.
b. The Township duly adopted Ordinance No. No. 14-08-2019 on August 20, 2019 adopting a Redevelopment Plan in accordance with law, as set forth above in the Preliminary Statement.
c. , The Township duly adopted Resolution No. on , 2020 designating Developer as the redeveloper for the Project Site (subject to the execution of this Redevelopment Agreement) and authorizing the Township to enter into this Redevelopment Agreement
d. This Redevelopment Agreement is duly executed by the Township and is valid and legally binding upon the Township and enforceable in accordance with its terms. The execution and delivery thereof shall not constitute a default under nor violate the terms of any indenture, agreement or other instrument to which the Township is a party.
e. The Township will consider amendments or revisions to the Developer’s Concept Plan proposed by the Developer and required to ensure compliance with the Redevelopment Plan provided that they comply with the Redevelopment Plan.
3. Mutual Representations. The Parties make the following mutual representations:
a. The Township and Developer agree that the Project will be governed by the adopted Redevelopment Plan, as amended from time to time by Ordinance, the requirements of the Act, any provisions of the Township Zoning Ordinance, and this Redevelopment Agreement.
b. If requested in writing by Developer, the Township agrees that it will endorse and cooperate on certain applications for Governmental Approvals or grants concerning the Property, where appropriate, at no cost to the Township. Developer shall pay all fees and costs required to apply for any such Governmental Approvals or grants.
c. In the event that any contractual provisions required by Legal Requirements have been omitted, the Township and Developer agree that this Redevelopment Agreement shall be deemed to incorporate all such clauses by reference, and that such requirements shall become a part of this Redevelopment Agreement. If such incorporation occurs and results in a material change in the obligations or benefits of one of the Parties, the Township and Developer hereby agree to act in good faith to mitigate such changes in position.
PART II REDEVELOPMENT PROJECT
1. Terms of Purchase and Sale.
In consideration of the Purchase Price, the Township agrees to sell the Project Site to Developer and Developer agrees to purchase the Project Site from the Township as provided in this Redevelopment Agreement.
a. Purchase Price. One Million Five Hundred Twenty Thousand ($1,520,000.00) Dollars calculated based on obtaining Approvals to construct ninety-one (91) Market Rate Units at Sixteen Thousand ($16,703.33) per Market Rate Unit. In the event, more than ninety-one (91) Market Rate Units are approved, the Purchase Price shall increase by $16,703.33 per Market Rate Units. In the event, less than ninety-one (91) Market Rate Units are approved, the Purchase Price shall decrease by $16,703.33 per free market rental apartment units. (collectively, the “Purchase Price”) In the event, less than Eighty-two (82) Market Rate Units are approved, the Developer has the option to terminate this Agreement, the Deposit Funds and the balance of the Redevelopment Agreement Escrow shall be returned to Developer and neither party shall have any obligations to each other.
b. The Developer has agreed to provide fifteen percent (15%) Affordable Units within the Project as provided in Part II, Paragraph 2.c. There will be no compensation from Developer to Township with respect to the Affordable Units.
c. In addition to the Purchase Price, the Developer at its sole cost and expense agrees to perform a traffic study to determine if signalization is warranted at the intersection of Evesboro- Medford and Sharp Roads (the “Intersection”), In the event the signalization is determined to be warranted, the Developer at its sole cost and expense will obtain the permits and approvals and construct the signalization.
d. In the event the signalization is not warranted, the Purchase shall post security in the form of a bond in the amount of $300,000.00 for a period of five (5) years from the issuance of the first Certificate of Occupancy on the Property. In the event that NJDOT issues a determination that a traffic signal is warranted at the Intersection within said five (5) year period, Developer shall pay the sum of $300,000.00 to the Township towards the cost of installation of the traffic signal by the Township. If Developer fails to pay the aforesaid sum within ninety days of its receipt of notice of the NJDOT determination, the Township may draw down the full sum of the bond.
e. The Developer agrees to purchase the Property free of all debris, equipment and removeable items. The Developer at its sole cost and expense shall be responsible to demolish and remove all buildings on the Property.
f. Payment Terms:
i. Initial Deposit: Developer within five (5) days of both parties executing a Purchase and Sale Agreement (the “Effective Date”) shall deposit with the Escrow Agent Twenty- five Thousand ($25,000.00) Dollars.
ii. Second Deposit: Developer within five (5) days of the expiration of the Due Diligence Period or Extended Due Diligence Period shall deposit with the Escrow Agent
Seventy-five Thousand ($75,000.00) Dollars. The Initial and Second Deposits shall be referred to as the “Deposit Funds”. The Deposit Funds shall be held in escrow by the Escrow Agent in accordance with the terms of this Redevelopment Agreement.
iii. At Closing: The Developer shall pay the Purchase Price less the Deposit Funds and any applicable Extension Deposits and the Escrow Agent shall pay the Deposit Funds to the Township.
g. Due Diligence. Commencing from the Effective Date of this Agreement, the Township grants Developer and its agents, consultants and other representatives, access to the Property during regular business hours to investigate the Property and to conduct such environmental, geotechnical and other testing as Developer may deem to be required in its absolute discretion for a period of Sixty (60) days, as same may be extended as provided herein (the “Due Diligence Period”).
The Due Diligence Period shall be automatically extended until such time the Township adopts or obtains, and Developer accepts at Developers’ sole and absolute discretion the following with all appeal periods having expired without the filing of any appeals or, if an appeal is filed, the resolution of that appeal fully in favor of Developer and the time for any further appeals having expired without the filing of a further appeal.
i. A Redevelopment Plan that allows the Developer to obtain a Site Plan approval without variances and/or waivers consistent with Exhibit “C” (the “Developer’s Concept Plan”);
ii. A Financial Agreement with a long-term tax abatement, whereby the Annual Service Charge is based on the Project’s Annual Gross Revenue, including a Land Tax Credit;
iii. Confirmation by NJDEP of the presence or absence of wetlands on the Project Site in the form of a letter of interpretation;
Additionally, if the Phase 1 results of Developer’s environmental investigation recommends that Phase 2 testing be undertaken, the Due Diligence Period shall be extended until such date as the Phase 2 testing is completed and Developer has received a written report from its environmental consultant as to same.
In the event, the Developer is not satisfied with its investigations during the Due Diligence Period and any extensions at its sole discretion or for any reason, the Developer may either (1) accept the Property with such defects, which acceptance shall constitute a waiver of any and all recourse against Township with respect to all defects, or (2) terminate this Agreement by sending written notice thereof to Township prior to the expiration of the Due Diligence Period. Upon Township’s receipt of such notice, this Redevelopment Agreement shall be deemed terminated and the Deposit Funds and any balance in the Redevelopment Agreement Escrow shall be refunded to Developer. Such termination shall be Developer’s sole and exclusive remedy in the event it is not satisfied with its findings of the Property.
h. Developer agrees to maintain or cause each of its consultants, contractors or representatives to conduct any studies or investigations of the Property pursuant hereto and to maintain and have in effect commercial general liability insurance with limits not less than One Million and 00/000 ($1,000.000.00) Dollars for personal injury, including bodily injury and death, and property damage and naming Township as a additionally insured.
i. Conditions precedent to Closing. It is understood that the Developer’s obligation to proceed to Closing hereunder are contingent upon the following conditions (each a “Condition Precedent”), any or all which Developer shall the right to waive in whole or in part. If any such conditions have not been satisfied or waived before Closing, Developer may elect to terminate the Agreement, upon delivery of written notice to Township prior to the expiration of the Approval Period and any extension periods, in which event this Redevelopment Agreement shall terminate and the Deposit Funds shall be returned to Developer with interest and the parties shall be released from all obligations hereunder except those terms that expressly survive the termination.
The Conditions Precedent are as follows:
i. The issuance of all Governmental Approvals;
ii. Issuance of (if required) a Remedial Action Outcome from an LSRP;
iii. Access and availability to all utilities including but not limited to, sanitary sewer, water for both potable and fire protection, electric, gas and communications;
iv. Clear and marketable title;
v. Upon proper application by the Developer of an approved Financial Agreement consistent with Part II, Paragraph 9.d hereof, executed by the Parties.
vi. Issuance of a wetlands letter of interpretation by the NJDEP, which does not materially interfere with the development of the Project or impose unreasonable financial obligations related to mitigation in the sole and reasonable judgment of the Developer.
j. Transfer of Ownership; Title. (i) At Closing, the Township shall give to the Developer a properly executed Bargain and Sale Deed With Covenants Against Grantor’s Acts for the Project Site (the “Deed”). The Township shall additionally give to the Developer an adequate affidavit of title, a properly executed Affidavit of Consideration or Exemption, a true copy of the Resolution of the Township Council authorizing the sale and conveyance, a Residency Certification, a certificate restating and reaffirming the representations, warranties and covenants of the Township set forth in Part I, Paragraphs 2 and 3 hereof, as of the Closing Date, a settlement statement to be executed by Developer and the Township and such other documentation as may reasonably be requested by Developer’s title insurance company.
(ii) The Township shall transfer and convey to the Developer clear and marketable title to the Project Site. For purposes of this Agreement, clear and marketable title shall be defined as insurable by Developer’s title insurance company, which shall be licensed to do business in the State of New Jersey and shall be reasonably acceptable to the
Township, at regular rates free of all claims and rights of others, except for: (a) normal utility easements servicing the Project Site which do not interfere with Developer’s intended use thereof, development, construction or operation of the Project; (b) ALTA 1992 preprinted exceptions, which are not customarily eliminated based upon an affidavit of title; and (c) any Permitted Exceptions (as hereinafter defined). Developer shall order a title report and title insurance commitment (the “Title Commitment”) within thirty (30) days of the Effective Date.
Developer shall provide the Township with a copy of the Title Commitment and of the survey of the Project Site upon receipt thereof and shall notify the Township in writing of any
objection to title within twenty (20) days following the receipt of the Title Commitment or receipt of the survey for the parcel in question, whichever comes later. Failure to notify the Township of an objection to title within such twenty (20) day period shall be deemed a waiver by Developer of all objections to any lien, encumbrances or other exception revealed by the Title Commitment (as waived, or as otherwise deemed acceptable by Developer, “Permitted Exceptions”). In the event Developer does raise title objections, the Township shall have fifteen
(15) days from the date of receipt of Developer’s written objections in which to decide whether to remedy the title defect(s) identified in such objection. If the Township does undertake to remedy the title defect(s) the Township shall be entitled to postpone the Closing Date for a reasonable period of time (not to exceed 90 days) in order to effectuate such remedy, or in the case of any liens or other unpermitted exceptions outstanding against the Project Site as of the Closing Date which involve only the payment of money for which the Township shall be responsible, elect to apply any portion of the Purchase Price to pay and satisfy those items. In the event the Township is unable to remedy such title defect(s) within the aforesaid time period, then Developer may either (a) waive the objection and proceed to Closing without an adjustment in the Purchase Price; or (b) terminate this Agreement, in which case Developer’s designation as “redeveloper” (as defined in the Redevelopment Law) shall simultaneously and automatically terminate and the Deposit Funds and the balance in the Redevelopment Agreement Escrow shall be returned to Developer.
If either the Township or Developer fails to comply with the requirements imposed upon it under the title policy requirements; then and in that event, either party may demand compliance in writing of the other. If a responding party still does not comply within three (3) business days of notification by the notifying party; then and in that event, the notifying party has the right to terminate this Redevelopment Agreement.
k. Physical Condition of the Designated Acquisition Parcels. The Project Site is being sold to Developer in “AS IS”, “WHERE IS” and “WITH ALL FAULTS” condition and with all existing defects (patent and latent) pursuant to such inspections and investigations as it alone considers necessary, prudent, appropriate and/or desirable. Developer acknowledges and agrees that, except as otherwise expressly elsewhere provided in this Agreement or in any document to be executed and delivered by the Township at Closing, Developer has not relied on and neither the Township, or any agent or employee of the Township nor any other party acting on behalf of the Township, has made or shall be deemed to have made, and shall not be liable for, responsible for, or bound in any manner by, any express or implied agreement, understanding, condition, warranty, representation, covenant, obligations, guarantee, statement, information, or inducement of any kind pertaining to the Project Site, including, without limitation, those with respect to: (a) the environmental conditions, soil conditions, groundwater conditions, tidelands claims, wetlands claims, or the presence or absence of Hazardous Materials on, beneath, or migrating from the Project Site; (b) warranties of habitability, merchantability or fitness for any intended or particular use or purpose; (c) the financial or physical (including, without limitation, environmental and/or geophysical) condition of the Project Site, or the areas surrounding the Project Site; (d) compliance with Environmental Laws; (e) the existence of availability of any permits or governmental or quasi-governmental approvals necessary to conduct any particular use on the Project Site; (f) the existence or absence of any underground storage tanks, septic tanks, or appurtenances related thereto on or beneath the Project Site; or (g) any other matter whatsoever, including, without
limitation, as to any permitted use thereof, the zoning classification thereof or compliance thereof with federal, state or local laws, as to the income or expense in connection therewith, or as to any other matter in connection therewith; provided that the Developer does not assume any responsibility for claims concerning natural resource damages which arise as a result of a spill or discharge of hazardous material prior to closing. In purchasing the Project Site, Developer agrees and acknowledges that it is solely relying on its own Due Diligence of the Project Site conducted in accordance with Section 13.2(g) below. At Closing, the Township shall deliver possession of the Project Site in the same condition as it is on the date of this Agreement, deterioration from ordinary and reasonable usage and exposure to the elements excepted. This Section shall the transfer of title to the Project Site, delivery of the Deed and termination of this Agreement.
l. Mortgage Financing; Notice of Default to Mortgagee; Right to Cure.
(i). Mortgage Financing. (a) Developer shall notify the Township in advance of any financing secured by a mortgage or other lien instrument which it proposes to enter into with respect to the Project or any part thereof (the mortgagee thereunder or its affiliate, a “Holder”) and, in any event, Developer shall promptly notify the Township of any encumbrance or lien (other than liens for governmental impositions) that has been created on or attached to any portion of the Project Area, whether by voluntary act of Developer or otherwise, upon obtaining actual knowledge or notice of same.
(b) To the extent reasonably requested by Developer, the Township shall execute such other agreements and/or documents (to the extent same are in form and content reasonably acceptable to the Township) as may be requested or required by any Holder; provided, however, that any such agreement or document shall not materially and adversely alter any of the rights or obligations of Developer or the Township under this Agreement.
(ii). Notice of Default to Holder and Right to Cure. (a) This Redevelopment Agreement is subject to the provisions of N.J.S.A. 55:17-1, et seq., with respect to the rights of a Holder and any rights of a Holder set forth herein shall be supplemental thereto. Whenever the Township shall deliver any notice or demand to Developer with respect to any breach or default by Developer under this Redevelopment Agreement, the Township shall at the same time deliver to each Holder a copy of such notice or demand, provided that Developer has delivered to the Township a written notice of the name and address of such Holder. Each such Holder 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 which is subject to being cured and to add the cost thereof to the debt and the lien which it holds. If the default cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced within such ninety (90) days period, such Holder shall be granted additional time as may reasonably be necessary to remedy or cure such default with diligence and continuity.
(b) To the extent that any Holder is required to foreclose against any lien it has with respect to the Project (as a result of a Developer Event of Default or a default by Redeveloper under any agreements executed by Developer and its Project lenders), the Township grees to forebear from the enforcement of any remedies provided under this
Agreement that it may have against Developer in order to permit such Holder to foreclose and assume or cause a third party to assume the obligations of Developer under this Agreement; provided, however, that the Township shall not be obligated to forebear from the exercise of any remedies available to it hereunder if such forbearance will result (or may result, in the reasonable judgment of the Township) in a waiver of the Township’s rights under this Agreement or a material and adverse effect on the Township’s rights or performance obligations hereunder or any material increase in the Township’s financial obligations hereunder.
(iii). No Guarantee of Development, Construction or Completion of the Project. A Holder shall have the right at its sole discretion to, but in no manner shall be obligated by the provisions of this Redevelopment Agreement to, develop, construct or Complete the Project (or portion to which its mortgage relates), or to guarantee such development, construction or Completion; nor shall any covenant or any other provisions be construed to so obligate a Holder. Notwithstanding the foregoing, nothing contained in this Redevelopment Agreement shall be deemed to permit or authorize such Holder to undertake or continue the development, construction or Completion of the Project, or portion to which its mortgage relates (beyond the extent necessary to conserve or protect the Holder’s security, including the improvements or construction already made), without the Holder first having expressly assumed Developer’s obligations to the Township going forward from and after the date of such assumption with respect to the Project (or portion to which its mortgage relates) by written agreement reasonably satisfactory to the Township and the Holder.
(iv). Foreclosure. If a Holder forecloses its mortgage secured by the Project Area (or portion to which its mortgage relates), or takes title to the Project Area (or portion to which its mortgage relates) by deed-in-lieu of foreclosure or similar transaction (collectively a “Foreclosure”), the Holder shall have the right, but not the obligation, at its option, to (1) sell the Project Area and the Project to a Person reasonably acceptable to the Township, which shall assume the obligations of Developer under this Redevelopment Agreement in accordance with Applicable Law or (2) expressly assume the obligations Developer under this Redevelopment Agreement. In the event of a Foreclosure, the Township shall not seek to enforce against the Holder or purchaser of such parcel any of the remedies available to the Township pursuant to the terms of this Redevelopment Agreement available in connection with the events preceding the Foreclosure. The Holder, or the Person exercising the option to assume the obligations of Developer under this Redevelopment Agreement as to the parcel affected by such Foreclosure or sale must agree to Complete the Project in the manner provided in this Redevelopment Agreement, but subject to reasonable extensions of the Project Schedule and scheduled Completion Date, and, in the case of a Person other than Holder, shall submit evidence reasonably satisfactory to the Township that it has the qualifications and financial resources necessary to perform such obligations. Any such Holder or Person assuming such obligations of Developer, properly Completing Project Improvements shall be entitled to a Certificate of Project Completion and Certificates of Occupancy in accordance herewith. Nothing in this Redevelopment Agreement shall be construed or deemed to permit or to authorize any Holder, or such other Person assuming such obligations of Developer, to devote the Project Area, or any part thereof, to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Redevelopment Agreement.
(v) The Parties agree that this section 1(l) may be reasonably modified to allow for traditional mortgage financing of the Project on commercially reasonable terms.
2. Project Description. Developer shall redevelop the Project Site as a residential project as follows by:
a. Constructing a three building residential rental project, consisting of 91 Market Rate Units and 16 Affordable Units.
b. The Market Rate Units shall consist of 8 one-bedroom Units (of approximately 850 to 1,000 gross square feet per unit) and 83 two bedroom units (varying from 1,050 gross square feet to 1,400 gross square feet per unit.
c. The Affordable Units shall be comprised of the following unit types:
Very Low (35% or Less of Regional
d. The Affordable Units shall not be “Age-Restricted Units” within the meaning set forth in N.J.A.C. 5:80-26.1 for the Deed-Restriction Period (as hereinafter defined).
e. The Affordable Units shall be constructed as “adaptable” as such term is defined in
N.J.S.A. 52:27D-304 and 311a. and per N.J.A.C. 5:97-3.14 and the Barrier Free Subcode at N.J.A.C. 5:23-7.
f. The Affordable Units shall be evenly distributed among the three buildings within the Residential Portion of the Project with no more than five (5) Affordable Units in any one (1) building.
g. The Affordable Units phasing with market units shall comply with COAH rules at
N.J.A.C. 5:93-5.6(d), affordable housing units within inclusionary developments shall receive a certificate of occupancy (c.o.) in accordance with the following schedule:
Percentage of Market
Rate units completed (c.o.)
of Affordable Units completed (c.o.)
h. In accordance with UHAC, the Developer shall deed restrict the Affordable Units as very low, low or moderate income affordable units for a period of at least thirty
(30) years (“Deed-Restriction Period”) so that the Township may count the Affordable Units against its obligation to provide affordable housing. The form of such deed restriction shall be in a form reasonably satisfactory to the Parties and in accordance with UHAC and other Applicable Laws.
i. The Developer must have an experienced Administrative Agent per UHAC at
N.J.A.C. 5:80-26.14 to handle affirmative marketing, establishing pricing, reviewing the deed restriction and long-term administration of the affordable units including monitoring. Per the Township’s Fair Share Ordinance, the fees of the Administrative Agent shall be paid by the Developer. Developer shall reasonably cooperate with the Township regarding the administration of the Affordable Units during the Deed-Restriction Period and any affordable housing monitoring requirements imposed by the Council on Affordable Housing and/or the Court. The Developer shall address the new law enacted on July 1, 2020 requiring affirmative advertising/centralized
j. listing of affordable units on the HMFA Housing Resource Center website listing of affordable units.
k. On-site parking and other site improvements.
l. There shall be no retail or other commercial development on the Project Site.
3. Redevelopment. The Developer shall redevelop the Property as set forth herein.
a. Redevelopment Plan. The Township adopted a Redevelopment Plan by Ordinance. The Project shall be developed in accordance with the Redevelopment Plan Exhibit “B” and the Developer’s Concept Plan provided by the Developer and attached hereto as Exhibit “C”. If required, the Township shall amend the Redevelopment Plan to permit the uses identified in Paragraph above. The Developer may request that the Township further amend the Redevelopment Plan as appropriate and necessary to construct the Project without the requirement of any variances or deviations, however, the Township shall not be required to adopt any amendment that may be requested by Developer. However, if the Township does not adopt the necessary amendments to the Redevelopment Plan, Developer shall have the option to terminate this Redevelopment Agreement.
b. Redevelopment Approvals. Developer shall obtain all Redevelopment Approvals necessary for the development of the Project at its sole cost and expense, including, but not limited to, all engineering fees, attorney fees and other professional fees, all application and escrow fees, all connection fees, and any other costs related to the design, approval and construction of the Project. The Developer will cause to be prepared and submitted such applications as may be necessary and appropriate for the purpose of obtaining any and all Redevelopment Approvals for the undertaking of the Project, including, without
limitation, final site plan approvals; building permits for the Project; environmental approvals and any and all other necessary permits, licenses, consents and approval. All of the Redevelopment Applications shall be in general conformity with the Site Plan, the Redevelopment Plan and this Agreement and any and all federal, state, county, and municipal statutes, laws, ordinances, rules and regulations applicable thereto. Nothing contained herein shall be construed to limit the Developer’s rights under the Municipal Land Use Law, N.J.S.A. 40:55D-l et seq. (“MLUL”), including the right to apply for any bulk variances or design waivers deemed necessary or appropriate, provided, however, that the Developer acknowledges that its rights are subject to and constrained by the Redevelopment Plan and this Agreement.
All performance guarantees imposed upon the Project by any State, County or Township agency for the Project shall be posted by Developer. Any municipal performance or maintenance bonds shall be limited to those amounts allowed under MLUL.
It is anticipated that Developer will be required to obtain site plan and/or subdivision approvals from the Township Planning Board, the County Planning Board, Evesham Township Municipal Utilities Authority, County Soil Conservation District, and NJDEP for environmental approvals as needed.
c. Time for Redevelopment Approvals. Developer shall use reasonably diligent efforts to expeditiously secure, or cause to be secured, any and all Governmental Approvals, and shall carry out the Project in conformance therewith. Developer shall be required to provide the Township’s Community Development Director with a copy of all applications to, and permits for approval received, together with copies of significant substantive correspondence to or from, any Governmental Body. Prior to its submission of preliminary and/or final site plan application, as well as all other times reasonably requested by the Township, Developer shall be available to make a presentation to the Township Council regarding same.
4. Environmental Compliance. The following environmental provisions shall apply to the redevelopment of the Property.
a. Compliance with Laws. Developer shall comply with all Environmental Laws and shall design and construct the Project as agreed to hereunder and as authorized by the NJDEP at its sole cost and expense.
b. Contamination. In the event environmental contamination is identified on the Property, Developer shall retain an LSRP and remediate such contamination, if any, at, under or emanating from the Property, pursuant to all Environmental Laws and the Redevelopment Agreement. Developer shall be responsible for maintenance and monitoring of any Engineering and Institutional Controls currently existing or required in the future regarding the Property during the period from execution of this Agreement.
c. Remediation. If remediation is required, Developer shall proceed diligently in good faith to obtain the approval of the NJDEP or an LSRP, as appropriate, of any required Remediation Plans for the Property pursuant to applicable statutes, regulations and policies.
Whenever practicable, the Township shall be given at least two (2) week’s prior written notice of any meeting with NJDEP and the Township’s representatives shall be in attendance at such meetings unless the Township elects otherwise. Developer shall diligently conduct all remediation activities to the satisfaction of NJDEP or its LSRP as applicable, which satisfaction shall be evidenced by the issuance of a site-wide RAO which is consistent in the Developer’s sole discretion with the development of Project. Nothing herein shall require the Developer to remediate the Project Site to unrestricted clean-up standards, and the Township acknowledges that a Deed Notice and engineering and institutional controls may be required. Developer shall be solely responsible for all required maintenance and monitoring of all Engineering and Institutional Controls currently existing or required in the future regarding such area and imposed as a condition of obtaining a RAP, RAO, or equivalent and shall remediate to allow for implementation of the Township’s Redevelopment Plan at the Project Site.
d. Redevelopment and Remediation Planning. If remediation is required, Developer shall provide copies of all Remediation work plans in draft form to the Township for comment prior to submission of same to any governmental entity or approval by the Developer’s LSRP as the case may be; provided however that the LSRP shall have final and sole discretion as to the form and content of the final RAWP unless otherwise required by the DEP.
e. Limitation Notwithstanding the foregoing or anything to the contrary elsewhere herein, Developer shall not have any cleanup obligation with respect to the Property unless and until Developer closes title on its acquisition of the Property.
5. Declaration of Covenants and Restrictions. The Developer shall, at its expense, record a Declaration of Covenants and Restrictions (“Declaration”), imposing upon the Project Site the agreements, covenants and restrictions, pursuant to the Local Redevelopment and Housing Law,
N.J.S.A. 40A:12A-9, including the following Developer Covenants to be observed by the Developer, its successors and assigns and which shall run with the land. A reference to the Declaration shall be included in the deed or deeds by which the Project Site is conveyed to the Developer. The Developer will deliver to the Township the recorded Declaration as soon as it is available
a. Declaration. The following Covenants and Restrictions shall be set forth in the Declaration.
(1) Developer shall construct or cause to be constructed or renovated only those buildings and uses that are consistent with the Redevelopment Plan, as amended and adopted by the Township from time to time and the Redevelopment Agreement between Developer and the Township dated , as same may be amended from time to time [the “Redevelopment Agreement”] and in accordance with all Governmental Approvals.
(2) The Developer shall begin the building of the improvements for those uses within the time set forth herein, which the parties have determined is reasonable.
(3) Developer shall not convey, lease, or transfer, nor permit the conveyance, lease, or transfer of any portion of the subject Property, or a substantial interest in the Developer, to third parties prior to the issuance of a Certificate of Occupancy, without specific, written, advance approval by the Township, as set forth in Part II, Paragraph 9 of this Redevelopment Agreement, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, Developer may enter into residential leases which are contingent upon the issuance of a temporary or permanent certificate of occupancy without the consent of the Township.
(4) Any transfer or other transaction in violation of the Redevelopment Agreement by Developer shall be an Event of Default of Developer and shall be subject to the remedies set forth at Part II, Paragraph 11 of this Agreement. In the absence of specific written consent by the Township, no such transfer of the Project Site or portion thereof, or transfer of a controlling interest in Developer, shall be deemed to relieve Developer from any obligations under this Redevelopment Agreement. The Declaration shall contain a restriction against transfers as set forth in this Paragraph and, in addition, shall provide that in the event of any attempted transfer in violation of the restrictions in this Paragraph, the Township shall be entitled to the issuance of an injunction voiding or restraining such transfer, and the award of legal fees and related expenses of the Township in connection with any such legal action. Except as set forth hereunder, the Township agrees to record a Certificate of Completion upon issuance of the final Certificate of Occupancy for Developer’s Project covered by this Agreement, at Developer’s expense.
(5) Upon completion of the required improvement, the conditions determined to exist at the time the area was determined to be in need of redevelopment shall be deemed to no longer exist.
(6) Developer shall not discriminate against or segregate any person, or group of persons, on account of race, color, religion, creed, age, national origin, ancestry, physical handicap, marital status, affectional preference or gender, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer itself, or any affiliate claiming under or through Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use of occupancy of tenants, lessees, subtenants, sub lessees, or vendees at the Property or any property.
(7) In the sale, lease or occupancy of the Project, the Developer shall not effect or execute any covenant, agreement, lease, conveyance or other instrument whereby the Project Site and/or the Project is restricted upon the basis of age, race, color, creed, religion, ancestry, national origin, sexual orientation, gender or marital status, and the Developer, its successors and assigns shall comply with all State and local laws prohibiting discrimination or segregation by reason of age, race, color, creed, religion, ancestry, national origin, sex or marital status.
(8) The Declaration shall run in favor of the Township until completion of all improvements required under this Agreement and a determination by the Township that the Property is no longer in need of redevelopment
b. Effect of Declaration of Covenants and Restrictions. It is intended and agreed by the Parties that the Declaration of Covenants and Restrictions set forth in this Paragraph 5, and elsewhere in this Redevelopment Agreement designated for inclusion in a Declaration, shall be covenants running with the land, and that they shall be binding, to the fullest extent permitted by law and equity, for the benefit of and in favor of the Township, and shall be enforceable by the Township, its successors and assigns, and any successor in interest to the Property, against Developer, its successors and assigns and every successor in interest therein.
c. Certificate of Completion If Developer has performed all of its duties and obligations under this Agreement and Completed the Project in its entirety, the Township shall, as applicable, within thirty (30) days of the issuance of a Certificate of Occupancy for the Project and receipt of a written request from Redeveloper, issue a Certificate of Completion and such certificate shall not be unreasonably withheld, conditioned or delayed. The Certificate of Completion shall constitute a recordable, conclusive determination of the satisfaction and termination of the agreements and covenants in this Agreement, the Redevelopment Plan and Applicable Laws, with respect to the obligations of Developer to construct the Project, as applicable. The Certificate of Completion shall be substantially in the form attached hereto as Exhibit F.
In the event the Township does not issue any such Certificate of Completion, as applicable, within thirty (30) days after submission of written request by Redeveloper, the Township shall provide Developer with a written statement setting forth in detail the reasons why it believes that Developer has failed to Complete the Project in accordance with the provisions of this Agreement, the Redevelopment Plan and Applicable Laws and what measures or acts the Township deems will be necessary in its reasonable opinion in order for Redeveloper to be entitled to the applicable Certificate of Completion (the “Certificate Denial Statement”). Developer may rely on the Certificate Denial Statement in determining what action it must take in order to achieve the requested Certificate of Completion, as applicable. In the event of a dispute over issuance of a Certificate of Completion, the Parties shall cooperate in good faith to resolve such dispute and, thereafter, either Party may take such legal action as it deems appropriate.
Upon the issuance of the Certificate of Completion, the conditions determined to exist at the time the Redevelopment Area was determined to be an area in need of redevelopment shall be deemed to no longer exist with respect to the portion of the Redevelopment Area upon which the Project is located. The land and improvements within the Project shall no longer be subject to any covenant herein encumbering the Redevelopment Area and shall no longer be subject to eminent domain.
d. Termination of Declaration and Redevelopment Agreement. This Redevelopment Agreement and the Declaration of Covenants and Restrictions set forth herein shall remain in effect as to the Project until either the termination of this Redevelopment Agreement in accordance with
its terms, or the issuance of the final Certificate of Occupancy for the entire Project. Upon redevelopment of the Property and completion of the entire Project as determined by the Township and by the issuance of the final Certificate of Occupancy for the Project, this Redevelopment Agreement shall terminate, and the conditions that were found and determined to exist at the time the Property was determined to be in need of redevelopment shall be deemed to no longer exist, and the conditions and requirements of N.J.S.A. 40A:12A-1 et seq. shall be deemed to have been satisfied at that Property. .
6. Developer Covenants.
a. The Developer Covenants, and agrees that:
(1) Developer shall use commercially reasonable efforts to implement the Project, in accordance with the provisions of this Redevelopment Agreement, the Legal Requirements, all Governmental Approvals and all Environmental Laws.
(2) Developer shall undertake with due diligence: (i) to pursue and obtain the necessary financing for acquisition and redevelopment; (ii) redevelopment of the Project upon securing Governmental Approvals; and (iii) perform each item on or prior to the date set forth in the Project Milestones (for those items for which commencement dates only may be given, such items shall be completed in a commercially reasonable period).
(3) Developer shall Commence Construction of the Project in accordance with the Project Milestones /Timeline, Exhibit “D”.
(4) During redevelopment and construction, and upon completion of any building in the Project, Developer shall use diligent efforts to obtain Certificates of Occupancy for completed buildings.
(5) Developer shall notify the Township of any change from the information previously provided to the Township regarding Developer’s financial capability to acquire the Property if such change will affect the Developer’s ability to redevelop, finance and construct the Project.
(6) The undertakings pursuant to the Redevelopment Agreement are for the purpose of redevelopment, and not for speculation in land holding.
(7) Developer shall acquire the Property, obtain all Redevelopment Approvals and Governmental Approvals, perform any environmental investigation and remediation, and construct the Project at its sole cost and expense.
(8) Developer shall provide performance bonds or other surety required by the Municipal Land Use Law or any other relevant law. Developer shall provide all inspection escrows as required by the Municipal Land Use Law or any other relevant law.
(9) Developer shall, at its sole cost and expense, satisfy the low and moderate income housing obligation as set forth in the Redevelopment Plan and as may be imposed on by law, including the Fair Housing Act, N.J.S.A. 52:27D-301 et seq., and any regulations that have been, or may be, adopted by the State of New Jersey pursuant thereto, any regulations of the Council on Affordable Housing, or its successor, that may be applicable to the affordable units included within the development.
Notwithstanding the foregoing, under no circumstances shall Developer be required to construct any affordable units other than the units described in the chart in Part II, Paragraph 2.c.
b. Enforcement of Declaration of Covenants by the Township. In amplification, and not in restriction of the provisions of this Paragraph, it is intended and agreed that the Township and its successors and assigns shall be deemed beneficiaries of the agreements and covenants set forth in this Redevelopment Agreement. 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 remains or is an owner of any land or interest therein. The Township shall have the right, in the event of any material breach of any such agreement or covenant by Developer, to exercise all rights at law and equity provided for by the Courts of the State of New Jersey.
7. Township Covenants. The Township covenants and agrees that:
a. The Township agrees to reasonably and lawfully assist Developer in the implementation of the Project. The Township agrees that it will use its best efforts, but in all cases without any expense to the Township, to provide non-privileged and non- confidential information in its possession to Developer when such information is needed by the Developer to obtain necessary Approvals, including, but not limited to executing applications for permits necessary for the Redevelopment Project. To the extent permitted under applicable law, the Township agrees to reasonably support any applications of Developer that are in accordance with this Agreement.
b. The Township agrees to schedule reasonably expedited Township meetings for action on the Developer’s applications for the Project upon timely written notice from Developer to Township of the necessity of such meetings.
c. The Township shall not take any action intended to delay or prevent Developer from implementing the Project in accordance with the Redevelopment Plan, as amended, the Zoning Ordinance, the Redevelopment Law, and this Redevelopment Agreement.
d. The Township has reasonable assurances that sufficient public sewer and water capacity is available from the Evesham Municipal Utilities Authority (EMUA) as of the Effective Date of this Agreement to serve the Project and that the EMUA will make such capacity available to Developer upon timely application for such services. The Township agrees to reasonably notify Developer if it becomes aware of other applications received
by the EMUA for use of available public sewer and water capacity which precede Developer’s application.
8. Implementation of the Project. The Developer shall construct the Project described in this Agreement.
a. Approvals. Developer shall obtain all Redevelopment Approvals and shall obtain all required building permits for the Project which shall not be unreasonably delayed or withheld by the Township.
b. Time for Completion of Project. The construction of the Project for the Property shall be substantially completed within the time set forth in the Project Milestones / Timeline, Exhibit “D”. The Developer may request revisions to the Milestones / Timeline, from time to time. The Township agrees that it shall not unreasonably withhold, condition or delay its consent to such requests. For purposes of this Redevelopment Agreement, a Certificate of Occupancy shall evidence and constitute substantial completion.
c. Inspection. Developer shall permit authorized representatives of the Township to inspect and audit all data and records of the Developer relating to its performance under this Agreement upon at least ten (10) days written notice to Developer.
d. Utility Providers. Developer is responsible for all infrastructures, including utilities, water, sewer, electric, gas, storm drains, telephone and cable, and infrastructure completion shall be constructed as required to serve the Project, as directed by the Township. Developer shall be solely responsible to enter into service agreements with those public utilities having jurisdiction to provide water, sewer, electric, gas and telephone services to the Project. The Parties acknowledge that local public utility providers may have certain rights with respect to the Project Site. Developer agrees that it is responsible to undertake the appropriate measures to negotiate with, and attempt to acquire, relocate or otherwise address the existence of utilities and Project and easements therefor, in order to complete the Project pursuant to law. Developer shall consult local public utility providers with respect to all construction, and shall take all reasonable and customary precautions to prevent personal injury, property damage and other liabilities related to all utilities above, at and under the Project Site. All actual water and sewer connection and user fees shall be due and timely payable to the proper entities that supply such services at the Project Site. The Township shall endorse all sewer/water connection permits for the Project, and reserve sufficient capacity to the extent that the Township has authority to do so at no cost to the Township. If in connection with the improvements to be erected on the Property any property owned or used by any public utility must be removed and/or relocated and/or reconstructed, then the cost of such removal and/or relocation and/or reconstruction shall be borne by the Developer if such property owned by such utility is located on the Property, except to the extent that said utility work has been assumed, and guaranteed, by other entities.
e. Project Parking. The Developer shall be responsible for providing all required and approved parking for its proposed redevelopment in accordance with the standards set forth in the adopted Redevelopment Plan and Township Ordinances, as amended by the
Township, and as approved in writing in the form of final Site Plan approval by the Township Planning Board.
f. Project Signage. Developer shall be responsible for a unified Sign Plan, to be approved by the Township. The sign plan shall ensure that all signs are integral to the architecture and provide continuity throughout the community.
g. Condition of Site. Developer shall keep the Project Site free from any substantial accumulation of debris or waste materials, and shall maintain in good condition any landscaping and amenities as required under the approved final site plan.
h. Neighborhood Impacts. Developer shall comply with all Access Agreements regarding the Project Site, all Township Ordinances, and the construction conditions set forth in the Redevelopment Plan in order to minimize any potential negative effects that construction of the Project may produce upon Evesham citizens or the neighborhood. Developer shall make itself available to assist the Township as the Township deems reasonably necessary for community outreach programs regarding the Project.
i. Certificate of No Default. At either Party’s request, the performing Party shall deliver to the requesting Party a Certificate to the effect that the performing Party is not aware of any condition, event or act that constitutes a violation of this Redevelopment Agreement or that would constitute an Event of Default hereunder, and, that no condition, event or act exists that, with notice or lapse of time, or both, would constitute such a violation, or Event of Default, or, if any such condition, event or act exists, the Certificate shall so state.
j. Certificate of Occupancy. The Developer shall comply with the building codes in effect at the time a Permit is issued, and the Township will not impose additional building standards beyond those required. Upon completion of any building in the Project, as determined by the Township, and upon a determination of compliance with the Redevelopment Plan, the Codes, Governmental Approvals and Legal Requirements, the Township agrees to issue a Certificate of Occupancy for such building. The Township agrees to undertake all inspections in an expeditious manner.
k. Tolling Events. The Project Schedule is subject to day for day relief from all Project Milestone requirements, except as stated in this Agreement, resulting from the occurrence of an event of Force Majeure or the imposition of an injunction, moratorium or other action beyond the control of the Developer which prevents the Developer from proceeding (a “Tolling Event”). The Developer shall notify the Township in writing of any proposed tolling of a Project schedule date necessitated by a Tolling Event.
l. Execution of Documents. Developer and the Township shall make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions with any other persons, firms or corporations, and, in general, do all things which may be requisite or proper for the acquisition, construction and redevelopment of the Project in accordance with all necessary Redevelopment Approvals, and other agreements as applicable, and shall
perform all obligations thereunder, including being financially able to perform all obligations under the agreements in a commercially reasonable manner.
m. Compliance with Redevelopment Agreement. Developer shall use reasonable efforts to ensure that all consultants, professionals, employees, agents, contractors engaged by Developer, and any of their subcontractors, shall possess the requisite character, skill and judgment necessary to implement the Project in compliance with the terms and conditions of this Redevelopment Agreement.
n. Cooperation. The Parties shall work together, as appropriate, necessary and reasonable, to accomplish the Project, including entering into additional agreements that may be required, and seeking available grants/loans for the Project, provided however, that such actions shall not result in a material increase in the Parties’ respective obligations hereunder, or a material decrease in the Parties’ respective rights hereunder.
o. Access to Property. Developer hereby agrees to allow Township and its agents, officials and professionals, reasonable access to all portions of the Property for the duration of the Redevelopment Agreement, upon forty-eight (48) hours advance Notice to Developer. Developer, or its designated agent may accompany the Township representatives. This provision shall not waive or alter the exercise of police or regulatory powers of the Township in any way.
9. Prohibitions Against Assignment and Transfer. Pursuant to N.J.S.A. 40A:12A-9.a, the Developer shall not sell, lease or otherwise transfer the Redevelopment Area or Project, or any part thereof, without the written consent of the Township during the term of this Agreement which consent shall not be unreasonably delayed, conditioned or withheld. The Developer represents and agrees that its undertakings pursuant to the Agreement, are, and will be used, for the purpose of redevelopment of the Property and not for speculation in land holding.
a. The Developer represents and agrees for itself, and its successors and assigns, that except (i) by way of security for, and only for, the purposes of obtaining financing necessary to enable the Developer or any successor-in-interest to the Property, or any part thereof, to perform its obligations with respect to the Project under this Agreement; and/or,
(ii) any of the purposes set forth in this Agreement, Developer has not made or created, and that it will not, prior to the issuance of a Certificate of Occupancy, make or suffer to be made or created, any total or partial sale, assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with respect to this Agreement or the Property, or any part thereof or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of the Township which will not be unreasonably delayed or withheld.
b. The following transactions are not subject to the prohibition set forth in this part II, Paragraph 9 and shall not require approval by the Township:
(1) mortgages and other liens and encumbrances for the purposes of financing the costs associated or incurred in connection with the acquisition, financing,
refinancing, development and construction of the Project or the conveyance of the Project to any such mortgagee or purchaser at foreclosure or otherwise; or
(2) utility and other development easements; or
(3) any lease or sale of all or any portion of the improved Property for which a Certificate of Occupancy has been issued, with occupancy of the relevant portion of the Project to end users as permitted by the Amended Redevelopment Plan,
Zoning Ordinance, and this Redevelopment Agreement; or
(4) any contract, agreement or assignment with respect to any of the foregoing transactions (including, but not limited to, any assignment of the Developer designation that may be required in connection with such a conveyance).
(5) any residential lease which is conditioned upon issuance of a temporary or permanent certificate of occupancy;
(6) transfers to an Affiliate of the Developer, provided the transferee is subject to the applicable terms of this Redevelopment Agreement.
(7) a deed in lieu of foreclosure to a mortgagee;
(8) transfers to immediate family members or trusts established for the benefit of same for estate planning purposes
c. Controlling Interest in Developer. Developer recognizes that it is because of Developer’s personal representations, qualifications, and the qualifications of the members of the Developer, that the Township is entering into this Agreement with Developer, and in so doing, the Township is relying on the obligations of Developer for the faithful performance of all undertakings and covenants to be performed by Developer hereunder. The Township considers any transfer of this Redevelopment Agreement which has been pre-approved in writing by the Township, the Township considers that a transfer of the controlling ownership of Developer, or any other act or transaction involving or resulting in a significant change in the controlling ownership of or with respect to the identity of the persons in control of Developer, as a transfer that requires written approval by the Township.
d. Notice of Permitted Transactions. Developer shall provide the Township with written notice of Developer’s intent to complete an assignment or transfer as identified in Paragraph 8.b, at least forty-five (45) days prior to such transaction which notice shall include a description of the nature of such transactions, and the name(s) and address (es) of any and all persons, individuals and other entities involved, along with the ownership structure(s) of the assignee or transferee.
Notwithstanding the foregoing, Developer shall not be required to provide the Township with notice of any residential lease which is conditioned upon issuance of a temporary or permanent certificate of occupancy.
e. Transfers Void. Any transfer or other transaction in violation of this Redevelopment Agreement by Developer shall be an Event of Default of Developer and shall be subject to the remedies set forth at Part II, Paragraph 11 of this Agreement. In the absence of specific written consent by the Township, no such transfer of the Project Site or portion thereof, or transfer of a controlling interest in Developer, shall be deemed to relieve Developer from any obligations under this Redevelopment Agreement. The Declaration shall contain a restriction against transfers as set forth in this Paragraph and, in addition, shall provide that in the event of any attempted transfer in violation of the restrictions in this Paragraph, the Township shall be entitled to the issuance of an injunction voiding or restraining such transfer, and the award of legal fees and related expenses of the Township in connection with any such legal action. Except as set forth hereunder, the Township agrees to record a Discharge of the Declaration upon issuance of the final Certificate of Occupancy for Developer’s Project.
10. Developer’s Financial Commitments. Developer shall complete the Project at its sole cost and expense. Developer also agrees that Developer shall submit satisfactory documentation to the Township evidencing Developer’s plan to secure the requisite capital and/or financing in an amount necessary to acquire, remediate and redevelop the Property upon commercially reasonable terms, pursuant to the Project Milestones / Timeline as set forth in Exhibit “D”, in accordance with this Agreement (the Township acknowledging that financing commitments may not be able to be secured prior the issuance of certain Governmental Approvals).
a. Project Costs. All costs of acquisition, Governmental Approvals, Redevelopment Approvals, constructing the Project and redeveloping the Property, including application fees, development application escrow fees and COAH fees, if any, and otherwise completing Developer’s Project, shall be borne by Developer, unless otherwise set forth herein. Developer’s estimated Project Costs are set forth in Exhibit “E.”
b. Timely Municipal Payments. Developer shall pay all deposits, escrows, reimbursements, and municipal contribution payments, for the Property to the Township.
c. Redevelopment Agreement Escrow. The Developer has established the Redevelopment Agreement Escrow with the Township. Activities to be funded by the Redevelopment Agreement Escrow shall include, but not be limited to: in-house professionals, as well as engineer, planner, consultant and attorney fees and costs expended on Township’s behalf, for preparation of this Redevelopment Agreement and for the oversight, enforcement and implementation of the Redevelopment Agreement and Redevelopment Plan going forward, and any additional deposits required to replenish said escrow. The Township shall provide a monthly statement of account with regard to Redevelopment Agreement Escrow funds, with copies of applicable invoices. Developer shall replenish the Redevelopment Agreement Escrow no later than fifteen (15) days from receipt of a notice of Redevelopment Agreement Escrow or Escrow deficiency, including documentation and accounting establishing any deficiency. Failure of Developer to replenish said account shall constitute a default, and unless this Agreement provides otherwise, any remaining Redevelopment Agreement Escrow shall be returned to Developer after completion the Project, as determined by the Township.
d. Real Estate Tax Abatement. The Township and Developer shall use good faith efforts to enter into a Financial Agreement (the “Financial Agreement”) for the Property pursuant to the Long-Term Tax Exemption Law, N.J.S.A. 40A:20-1 et seq. providing for a thirty (30) year property tax exemption for the Project improvements and calling for a payment-in-lieu-of-taxes equal to a percentage of the annual gross revenue (the “AGR”) from the Project according to the following schedule-
% of AGR
1 – 11
12 – 16
17 – 20
21 – 24
25 - 28
29 - 30
Developer shall prepare a timely Application for a Financial Agreement requesting an agreement with the Township for a payment in lieu of taxes or other tax treatment for the Project. Developer shall provide to the Township an Application, a proposed Financial Agreement and all necessary information I support thereof within ninety (90) days of the execution of this Redevelopment Agreement. The Township shall promptly review and act upon such application. Should the Township determine that Developer’s application is deficient in one or more respects, the Township agrees to notify Developer within fifteen
(15) days of such deficiency and to allow Developer reasonable time to submit an amended draft application. An approved Financial Agreement shall be in place no later than ninety
(90) days from submission of a complete final Application by Developer unless the Township extends that date. Should the parties fail to reach agreement on a Real Estate Tax Abatement within the aforementioned timeframe, the Developer may cancel this Agreement on written notice to the Township. This cancellation shall be the only remedy for a failure to reach agreement on a Tax Abatement.
Notwithstanding anything to the contrary above or elsewhere herein, any Financial Agreement shall be acceptable to Developer in its sole and absolute discretion.
11. Default. The Parties shall have the rights set forth in this Paragraph in the event of Default.
a. Developer’s Default Events. The Township shall have the right to declare the Developer in default of this Agreement in the event of the occurrence of any of the following (each, an "Event of Default"):
(1) Developer's failure to substantially perform, or a substantial defect in performance by the Developer, of any obligations under this Redevelopment Agreement;
(2) Failure of Developer to make any Project Payment required pursuant to this Redevelopment Agreement;
(3) The filing of a Complaint with a Court of competent jurisdiction seeking a determination that Developer is insolvent or the appointment of a receiver;
(4) The filing of a voluntary (or involuntary as permitted by law) petition for bankruptcy for Developer;
(5) A notice to the Township by Developer, indicating that Developer has determined not to proceed with the Project, unless Developer has the right not to proceed under the terms of this Agreement;
(6) Abandonment of the Project by the Developer or by Developer’s successor, assignee, affiliate or guarantor;
(7) Failure of the Developer to meet any Project Milestone;
(8) Failure of the Developer to submit any Progress Report when required by this Redevelopment Agreement or to attend any Progress Meeting scheduled pursuant to this Redevelopment Agreement;
(9) Failure of the Developer to replenish the Redevelopment Agreement Escrow when required pursuant to this Redevelopment Agreement; or
(10) A Transfer of all, or part of the Property, or a controlling interest in Developer, without the prior written consent of the Township when required pursuant to this Redevelopment Agreement.
b. Default Notice. Upon the Township’s recognition of an occurrence of an Event of Default, the Township shall notify the Developer in writing that it has declared Developer in default (hereinafter "Default Notice"). The Default Notice shall be given by the Township to Developer, addressed to the individual(s) and address(es) provided in Paragraph 12.a herein, and shall state the basis for determining that an Event of Default has occurred. Upon receipt of the Default Notice, the Developer shall have forty-five (45) days to cure such failure or defect. In the event that Developer does not cure the Default as set forth herein, the Township shall have the right to exercise, in addition to all remedies available at law and equity, the remedies set forth below.
Notwithstanding the foregoing, in the event that the Default cannot practicably be cured within the aforesaid forty five (45) day period, the time for cured shall be extended, provided that Developer commences a cure within that period and diligently and continuously pursues same until the cure is accomplished.
c. Default Rights and Remedies. In addition to all other rights and remedies which the Township may have at law or in equity upon the occurrence of a Default which has not been cured, the Township shall, to the fullest extent permitted by law, be entitled to the following rights and remedies:
(1) Right to Injunction. In the event of a breach by either party of any of the agreements, conditions, covenants or terms hereof and the running of the applicable
cure period, the other party shall have the right of injunction to restrain the same, and the right to invoke any remedy allowed by law or in equity, whether or not other remedies, indemnity or reimbursements are herein provided.
(2) Restoration to Status. In case the Township shall have proceeded to enforce its rights under this Redevelopment Agreement and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Township, then and in every such case, the Developer and the Township shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Developer and the Township shall continue as though no such proceedings had been taken.
(3) Documents to be Delivered on Termination. In the event this Agreement is terminated for any reason, except solely as a result of the Default of Township, Developer shall deliver and assign to the Township, at Developer’s expense, within thirty (30) days after such termination, true and correct copies of all final reports, studies, data, plans, surveys, title reports, subdivision maps and specifications prepared by Developer and by third parties with respect to the Project, including environmental reports and data, any and all documents, reports, permits and approvals obtained by Developer relating to the Remediation Plans relating to the Project Site, such reports “as is” without representation or warranty.
(4) Hold Harmless. Developer shall indemnify and hold harmless the Township against all liability, losses, damages, demands, costs, claims, actions or expenses (including attorneys’ fees, disbursements and court costs) of every kind, character and nature, arising out of, resulting from or in any way connected with the Default of Developer and concerning the transfer of any Property to the Township or its purchaser or Developer as a result of such default.
(5) Survival Upon Termination. Notwithstanding termination as provided for herein, all of the Township’s rights that specifically survive closing or termination shall remain enforceable by the Township.
d. Rights and Remedies of Township Cumulative. The rights and remedies of the Township whether provided by this Agreement or by law, shall be cumulative, and except as otherwise specifically provided by this Agreement, the exercise by the Township of any one or more of such rights or remedies shall not preclude the exercise, at the same or at different times, of any other such rights or remedies for the same Default, or for the same failure in respect to any of the terms, covenants, conditions or provisions of this Agreement or any of its remedies for any other Default or breach. No delay by the Township in asserting any rights or exercising any remedy shall operate as a waiver of such rights or remedy or otherwise deprive it of, or limit such rights and remedies in any way (it being the intent of this provision that the Township shall not be constrained, so as to avoid the risk of being deprived of or limited in the exercise of the remedy provided in this Paragraph because of concepts of waiver, laches, or otherwise, to exercise such remedy at a time when it may still hope otherwise to resolve the problems created by the default involved); nor shall any waiver by the Township with respect to any specific Default by the Developer
under this Paragraph be considered or treated as a waiver of the rights of the Township with respect to any other Defaults by the Developer under this Paragraph or with respect to the particular Default except to the extent specifically waived in writing.
e. Township Default In the event of a Default by the Township, Developer shall be entitled to all remedies available at law or at equity.
12. Miscellaneous. a. Notices. Formal notices, demands and communications between the Township of Evesham and Developer Development, Inc. shall be deemed sufficiently transmitted if dispatched to the addresses set forth below, by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed delivered upon receipt. Developer shall be responsible for providing whatever notices it receives from the Township to Developer’s successors or assignees, where applicable. Notices may also be sent by a commercial overnight delivery service with package tracking capability and for which proof of delivery is available.
Notices, demands and communications shall be sent as follows:
If xx Xxxxloper:
If xx Xxxxxxxx:
b. Non-Liability of Representatives. No official, officer, professional, employee, agent or representative of the Township shall be personally liable to Developer, Developer’s assignee or successor in interest, in the event of any default, breach or violation by the Township, or for any amount which may become due to Developer, its assignee, or successor, or anyone with regard to any obligation under the terms of this Redevelopment Agreement.
Similarly, no official, officer, professional, employee, agent or representative of the Developer shall be personally liable to the Township in the event of any default, breach or violation by the Developer, or for any amount which may become due to the Township with regard to any obligation under the terms of this Redevelopment Agreement.
c Brokerage Commissions. The Township and Developer each represent to the other that no real estate broker initiated, assisted, negotiated or consummated this Redevelopment Agreement as broker, agent, or otherwise acting on behalf of either the Township or Developer and each Party shall indemnify and hold the other harmless from any claims of a commission claimed through it.
d. No Consideration for Redevelopment Agreement. Developer warrants it has not paid or given, and will not pay or give, any third person any money or other consideration in connection with obtaining this Redevelopment Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers, financial consultants and attorneys retained by Developer. Developer further warrants it has not paid or incurred any obligation to pay, and will not pay, any officer, official, agent or representative of the Township, any money or other consideration for or in connection with this Redevelopment Agreement or this Project.
e. Successors and Assigns. This Redevelopment Agreement shall be binding upon and inure to the benefit any successors and assigns of the Parties hereto.
f. Exhibits. The Exhibits attached hereto and/or referred to in this Redevelopment Agreement, shall be incorporated herein as though set forth in full.
g. Titles of Articles and Paragraphs. The titles of the Articles and Paragraphs of this Redevelopment Agreement are inserted for the convenience of reference only, and shall be disregarded in construing or interpreting any Agreement provisions.
h. Severability. If any term or provision of this Redevelopment Agreement or the application thereof shall, to any extent, be held to be invalid or unenforceable, the remainder of this Redevelopment Agreement shall not be affected thereby, and each remaining term and provision of this Redevelopment Agreement shall be valid and shall be enforced to the extent permitted by law.
i. Enforcement by the Township. It is intended and agreed that the Township and its successors and assigns shall be deemed beneficiaries of the Redevelopment Agreements and covenants set forth in this Redevelopment Agreement. Such agreements and covenants shall run in favor of the Township for the period set forth in Part II, Paragraph 4.c of this Redevelopment Agreement The Township shall have the right, in the event of any breach of any such agreement or covenant, to exercise all rights and remedies set forth in Part II, Paragraph 11 hereof.
j. Enforcement by Developer. It is intended and agreed that Developer and its successors and assigns shall be deemed beneficiaries of the agreements and covenants set forth by the Township in this Redevelopment Agreement. Such agreements and covenants shall run in favor of Developer for the period set forth in Part II, Paragraph 4.c of this
Redevelopment Agreement. Developer shall have the right, in the event of any breach of such covenant or agreement, to exercise the rights and remedies set forth in Part II, Paragraph 11 hereof.
k. Modification of Redevelopment Agreement. No modification, waiver, amendment, discharge, or change of this Redevelopment Agreement shall be valid unless the same is in writing, duly authorized, and executed by both Parties.
l. Execution of Counterparts. This Redevelopment Agreement may be executed in one or more counterparts and such counterparts shall constitute one and the same instrument.
m. Drafting Ambiguities; Interpretation. In interpreting any provision of this Redevelopment Agreement, no weight shall be given to, nor shall any construction or interpretation be influenced by, the fact that counsel for the Township drafted the initial proposed Redevelopment Agreement, each Party acknowledging that it and its counsel have had an opportunity to review this Redevelopment Agreement and to contribute to the final form of same.
n. Time Period for Notices. All notices to be given hereunder shall be given in writing and, unless a certain number of days is specified, within a reasonable time.
o. Conflict of Interest. No official, officer, or employee of the Township shall have any direct interest in this Redevelopment Agreement, nor participate in any decision relating to the Redevelopment Agreement where prohibited by law.
p. Governing Law. This Redevelopment Agreement shall be governed by and construed in accordance with the applicable laws of the State of New Jersey. Any legal action undertaken to enforce this Redevelopment Agreement shall be filed with the Superior Court of New Jersey, Burlington County.
q. Withholding of Approvals. All approvals, consents and acceptances required to be given or made by either Party hereunder to implement the Project shall not be unreasonably withheld or delayed, unless specifically stated otherwise herein.
r. Rights Cumulative. All rights and remedies herein or granted to the Parties are cumulative, non-exclusive and in addition to any and all rights and remedies that the Parties may have or be given by reason of any law, statute, ordinance or otherwise.
s. Entire Agreement. This Agreement shall constitute the entire agreement between the Parties hereto and shall supersede all negotiations, agreements and understandings, written or oral, formal or informal, between the Parties with respect to the Project Site, the Property or the Project, except as may otherwise be provided herein, and any prior agreements are deemed to be merged herein.
t. No Other Reliance. Each Party represents by execution of this Redevelopment Agreement that it has not relied upon any representations, oral or otherwise, of the other
Party or its officers, officials, agents, affiliates, employees or representatives, except for those representations explicitly set forth in this Redevelopment Agreement.
u. Term. Unless otherwise terminated as provided herein, this Redevelopment Agreement shall remain in full force and effect from the Effective Date hereof until issuance of a final Certificate(s) of Occupancy for the Project, and receipt of all payments required of the Developer have been received by the Township, subject to any survival as set forth in this Agreement, unless the Parties agree in writing to terminate the Agreement, or it terminates by operation of law.
v. Calculation of Time. Whenever in this Redevelopment Agreement a period of time is stated as a number of days, it shall be construed to mean calendar days; provided, however, that when any period of time so stated would end on a Saturday, Sunday or legal holiday, such period shall be deemed to end on the next day following that which is not a Saturday, Sunday or legal holiday.
w. Preservation of Police Powers. Nothing set forth in this Redevelopment Agreement shall be construed to constitute waiver of any right of Evesham Township to exercise its legitimate police powers to the extent necessary to protect the health, safety and welfare of the citizens of the Township.
x. No Contributions. Developer has not made any contributions to the Township, nor to its officials, that would cause a violation of ethics law, pay-to-play practices, or similar laws.
y. Connection Fees. Connection fees shall be assessed in accordance with the rules and regulations of the Evesham Municipal Utilities Authority in force at the time an application for a connection permit is filed and shall not be subject to negotiation. Connection fees shall be due and payable, in full, prior to the issuance of Building Permits, provided that Developer may pay for connection fees and capacity at any time prior thereto to the proper entity which collects such connection fees.
z. Project Names. The Township and Developer have consulted and agreed upon a name for the Project, whicx xxxxx xx xxown as Barclay Chase at Marlton II. In the event that either party wishes to change said name, the parties shall consult with one another, but the name shall not be changed except by mutual agreement of the parties.
aa. Interaction. Township and the Developer shall interact with each other in all appropriate respects and shall use their best efforts to effectuate the purposes of this Agreement.
bb. Challenges. In the event any proceeding is commenced by any third party challenging the validity of this Agreement, Redevelopment approvals, remediation, any PILOT or other Financial Agreement, designation of Developer as the “Developer,” or any aspect of the Township’s Redevelopment Plan as it pertains to the Property to be redeveloped or acquired by Developer, the Parties shall interact as appropriate and lawful in defending such action or proceeding, but each Party shall be responsible to pay for its own costs and legal fees associated with such defense.
cc. No Joint Venture with Township. Nothing contained herein shall be construed as making the Township and Developer partners, joint ventures or agents of each other. The parties have no relationship to each other except as Redevelopment Entity and Developer for the Project. However, the Township reserves the discretion to allow Developer to form a Joint Venture with another Developer(s) of the Property, upon prior written permission by the Township, which Co-Developer would first be required to execute a Redevelopment Agreement with the Township.
dd. Survival of Covenants. Each covenant and agreement contained herein shall survive any Closing(s) of title, until issuance of a final Certificate(s) of Occupancy for all of the buildings in the Project.
ee. Interpretation and Construction. In this Redevelopment Agreement, unless the context otherwise requires:
(1) The terms "hereby", "hereof", "hereto", "herein", "hereunder" and any similar terms, as used in this Redevelopment Agreement, shall refer to this Redevelopment Agreement.
(2) Words importing a particular gender mean and include correlative words of the other gender.
(3) Words importing persons or entities mean and include firms, associations, partnerships (including limited partnerships), trusts, corporations, limited liability companies and other legal entities, including public and governmental bodies and natural persons.
(4) Any headings preceding the texts of the several Articles and Paragraphs of this Redevelopment Agreement shall be solely for convenience of reference and shall not constitute a part of this Redevelopment Agreement, nor shall they affect its meaning, construction or effect.
(5) Unless otherwise indicated, any fees, costs and/or expenses shall be required to be customary and reasonable.
ff. Party Representatives (i) Any consent or approval of the Developer to be issued pursuant to this Redevelopment Agreement may be issued by the Developer Representative, provided same is issued in writing or by e-mail, and the Township may rely upon same.
(ii) Any consent or approval of the Township to be issued pursuant to this Redevelopment Agreement may be issued by the Township Representative, provided same is issued in writing or by e-mail, and Developer may rely upon same.
IN WITNESS WHEREOF, the Parties hereto have caused this Redevelopment Agreement to be executed on the day above written.
Xxxxxxs or Attest: BARCLAY SQUARE AT MARLTON II URBAN RENEWAL, LLC
Witness or Attest: TOWNSHIP OF XXXXXXX
Xx: Xame: Robert Corrales
Title: Township Manager
EXHIBIT A PROPERTY DESCRIPTION
[TO BE PROVIDED BY TOWNSHIP]
EXHIBIT B REDEVELOPMENT PLAN
EXHIBIT C CONCEPT PLAN
Phase2 - Concept Plan-107-rev.pdf
1. During the Due Diligence Period commencing upon the signing of an Agreement of Sale for Developer will obtain all necessary studies, environmental investigations, financial estimates, etc. During the Due Diligence Period, the Township and Developer would execute and deliver a Financial Agreement acceptable to Developer at its sole and absolute discretion with a long-term tax abatement (a PILOT) whereby the Annual Service Charge is based on the Project’s Annual Gross Revenue, including a Land Tax Credit. Any delay in finalizing the Financial Agreement will automatically extend the Due Diligence Period.
2. Developer will file a preliminary and final site plan application with all necessary accompanying plans and documents within sixty (60) days of the expiration of the Due Diligence Period.
3. The Township will review and issue a “completeness” determination within forty-five (45) days of Developer’s submission of a preliminary and final site plan application.
4. The Township will schedule and conduct a hearing on our preliminary and final site plan applications within sixty (60) days of the issuance of completeness of such site plan applications.
5. If approved, a Resolution of Approval will be issued for the site plan applications within one hundred thirty-five (135) days of the submission of the site plan applications by Developer
The Developer may request revisions to the Milestones / Timeline, from time to time. The Township agrees that it shall not unreasonably withhold, condition or delay its consent to such requests.
EXHIBIT E PROJECT COSTS
EXHIBIT F CERTIFICATE OF COMPLETION
Datx: , 002_
Project: Barclay Square at Marlton II (the “Project”).
Location: Block 16, Lots 1.03 in the Township of Evesham, Burlington County, New Jersey as shown on the tax maps of the Township (the “Property”)
Pursuant to Part II, Paragraph 5.c of the Redevelopment and Purchase and Sale Agreement by and between the Township of Evesham (xxx “Xxwnship”) and Barclay Square at Marlton II Urban Renewal, LLC (the “Developer”), dated as of , 2020 (the “Redevelopment Agreement”), the undersigned, an authorized representative of the Township, certifies as of the date hereof that (all undefined terms used herein shall have the same meaning ascribed to them in the Redevelopment Agreement):
(i) the Project in its entirety has been completed as of , in accordance with the Redevelopment Agreement and in compliance with Applicable Laws so that the Project in its entirety may, in all material respects, be used and operated under the applicable provisions of the Redevelopment Agreement;
(ii) all permits, licenses and approvals that are required in order for the Developer to Complete the Project or such other work or action to which such term is applied are, to the extent so required, in full force and effect;
(iii) the Project is being operated in accordance with the terms and provisions of the Redevelopment Agreement, the Redevelopment Plan and Applicable Laws; and
(iv) a copy of the Certificate of Occupancy issued with respect to the Project is attached hereto as Exhibit A.
The conditions determined to exist at the time the Redevelopment Area was determined to be an area in need of redevelopment no longer exist with respect to the Property. The Property shall no longer be subject to any covenant running with the land covered by this Certificate of Completion for the benefit of the Township.
The Declaration of Covenants and Restrictions recorded in the office of the Burlington County Clerk on in Deed Book , Page is hereby discharged of record and is void and of no further force and effect.
This certificate is given without prejudice to any rights against third parties which exist on the date hereof or which may subsequently come into being.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Completion to be executed as of the day of .
WITNESS OR ATTEST: TOWNSHIP OX XXXXXXX
Xxxx Xxx Xxrgh Robert Correales
Township Clerk Township Manager
STATE OF NEW JERSEY :
: SS COUNTY OF BURLINGTON :
On this day of before me, xxxxxxxxxx xxxxxred Robert Correales, the Manager of the Township of Evesham, a public body corporate and politic organized and existing under and by virtue of the laws of the State of New Jersey, who I am satisfied is the person who executed the foregoing instrument; and (s)he acknowledged that (s)he executed the foregoing instrument as the act of the corporation and that she was authorized to execute the foregoing instrument on behalf of the Township of Evesham..