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HomeMy Public PortalAboutr 08:098�Uovl ffan at 14Q ► axaxz a xxzexez, v� No. 08 -98 Date of Adoptio April 1( RESOLUTION OF THE BOROUGH OF CARTERET DESIGNATING VERIZON BUSINESS NETWORK SERVICES INC. AS REDEVELOPER OF A PORTION- OF THE FEDERAL BOULEVARD REDEVELOPMENT AREA AND AUTHORIZING THE EXECUTION AND DELIVERY OF A REDEVELOPMENT AGREEMENT WHEREAS, the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A -1 et seq., as amended and supplemented (the "Redevelopment Law") provides a process for municipalities to participate in the redevelopment and improvement of areas in need of redevelopment; and WHEREAS, the Borough Council has adopted an ordinance approving and adopting the Federal Boulevard Redevelopment Plan (the `Redevelopment Plan ") in accordance with the Redevelopment Law; and WHEREAS, the Redevelopment Plan relates to certain properties within the Borough, specifically Block 49.01, Lots 4, 9 and 11; Block 49.02; Lot 2, Block 64.01, Lots 1, 2, 3, 4.01, 4.03, 4.04, 5, 6.01, 6.02, 7 and 8; Block 64.02, Lots 1, 2.01, 2.02, 3 and 7 (collectively the `Redevelopment Area "); and WHEREAS, Verizon Business Network Services Inc. (the "Company"), is the fee title owner of that parcel of real property located within the Redevelopment Area designated on the Official Tax Map of the Borough as Block 64.02, Lot 7 (the `Project Area'); and WHEREAS, the Redeveloper desires to expand, or otherwise constmct one or more additions to, the existing building located within the Project Area, including any and all other improvements related thereto, all in accordance with the Redevelopment Plan; and WHEREAS, the Borough has negotiated a redevelopment agreement with the Redeveloper (the "Redevelopment Agreement ", attached hereto as Exhibit A in substantially final form) with the respect to the redevelopment of the Project Area; and NOW, THEREFORE, BE IT RESOLVED as follows: Section 1. The Redevelopment Agreement is hereby authorized to be executed and delivered on behalf of the Borough by either the Mayor, the Chief Financial Officer or the Director of law in substantially the form attached hereto as Exhibit A ' with such changes as the Mayor, Chief Financial Officer or Director of Law (each an "Authorized Officer "), in their respective sole discretion, after consultation with such counsel and any advisors to the Borough (collectively, the `Borough Consultants "), as such Authorized Officer deems necessary, desirable or convenient in such Authorized Officer's sole discretion. All actions of the Authorized Officers and the Borough Consultants taken prior to the date of adoption hereof in connection with the Project Area, including without limitation, the Redevelopment Agreement, are hereby ratified and approved. Section 21 The Borough Clerk, or the Deputy Borough Clerk, is hereby authorized and directed, upon the execution of the Redevelopment Agreement in accordance with the terms of Section 1 hereof, to attest to the Authorized Officer's execution of the Redevelopment Agreement and is hereby further authorized and directed to thereupon affix the seal of the Borough to the Redevelopment Agreement. Section 3. Upon the execution and attestation of and if required, the placing of the seal of the Borough on the Redevelopment Agreement as contemplated by Sections I and 2 hereof, the Authorized Officer is hereby authorized and directed to (i) deliver such fully executed, attested and sealed Redevelopment Agreement to the Company and (ii) perform such other actions as the Authorized Officer deems necessary, desirable or convenient in relation to the execution and delivery thereof. I, 2008 PAGE Section 4. The Authorized Officers are each hereby further authorized to perform any act, execute or acknowledge and deliver any other document, instrument or certificate, which the Authorized Officer, after consultation with the Borough Consultants, deems necessary, desirable or convenient* in connection with the Redevelopment Agreement, and the Borough Clerk, or Deputy Borough Clerk, is hereby further authorized and directed to attest to such execution or acknowledgement and to affix the seal of the Borough to any such document, instrument or certificate. Section 5. Upon the Company's execution and delivery of the Redevelopment Agreement, the Redeveloper shall be hereby deemed as the redeveloper of the Project Area for all purposes of law. Section 6. This resolution shall take effect at the time and in the manner prescribed by law. Section 7. Upon the adoption hereof, the Borough' Clerk shall .forward certified copies of this resolution to Matthew C. Karrenberg, Esq., DeCotiis, Fitzpatrick, Cole & wisler, LLP, Special Redevelopment Counsel to the Borough. Adopted this 10th day of April, and certified as a true copy of the original on April 11, 2008. KATHLEEN M. — BAR NEY MMC Municipal Clerk RECORD OF COUNCIL VOTE COUNCILMAN YES NO NV A.D. COUNCILMAN YES NO NV . A.B. X KRUM X COLON NAPLES X DIAZ... X qTTAR X - Indicate Vote AB- Absent NV - Not Voting XOR - Indicates Vote to Overmle Veto Adopted at a meeting of the Municipal Council z J Zoos 24� e%t—� /�Z— Rl. EXHIBIT A REDEVELOPMENT AGREEMENT REDEVELOPMENT AGREEMENT BY AND BETWEEN BOROUGH OF CARTERET, NEW JERSEY, as the Redevelopment Entity and VERIZON BUSINESS NETWORK SERVICES INC., as the Redeveloper Dated as of 2008 #3004159.03 (086027.149) TABLE OF CONTENTS Recitals ...................................................................... ............................... Article I Definitions and Interpretations Section 1.01 Definitions .............................................. ............................... Section 1.02 Interpretation and Construction ............. ............................... Article II Description of Project Area and the Project Improvements Section 2.01 Proposed Development Section 2.02 Change in Plans ............................. Section 2.03 Effect of Review of Plans ............. Section 2.04 Infrastructure Improvements......... Section 2.05 Project Schedule ............................ Section 2.06 Green Initiatives ............................ Article III Additional Project .....1 .2 .9 ............................... .............................10 ............................... .............................10 ............................... .............................10 ............................... .............................11 ............................... .............................11 ............................... .............................11 Section 3.01 Additional Project .......................................................... .............................11 Section 3.02 Additional Project Notice ............................................... .............................12 Section 3.03 Additional Project Supplemental Redevelopment Agreement ....................12 Section 3.04 Non - Binding; Condemnation .......................................... .............................13 Article IV Financial Obligations Section 4.01 Project Cost and Financing ............................................. .............................13 Section 4.02 Redeveloper's Fee ........................................................... .............................13 Section4.03 Impact Fee ....................................................................... .............................14 Section 4.04 Borough Fees .................................................................. .............................14 Section 4.05 Governmental Approval Fees ......................................... .............................14 Section4.06 Other Fees ....................................................................... .............................14 Article V Environmental Matters Section 5.01 Enviromnental Compliance in General ........................... .............................14 -i- #3004I59.03 (086027.149) Article VI Construction of Project Improvements Section 6.01 Constriction of Project hnprovements ........................... .............................15 .............................17 Section 6.02 Relocation of Utilities ..................................................... .............................15 .............................17 Section 6.03 Prevailing Wages ............................................................ .............................15 .............................17 Section 6.04 Project Labor ................................................................... .............................15 .............................17 Section 6.05 Affirmative Action .......................................................... .............................15 .............................17 Section 6.06 Nondiscrimination During Construction; Equal Opportunity ......................15 Section 6.07 Maintenance of Project Area .......................................... .............................15 Section 6.08 Traffic Impact Study ....................................................... .............................16 Section6.09 Traffic ............................................................................. .............................16 Section 6.10 Estoppel Certificates ....................................................... .............................16 Section6.11 Cooperation ..................................................................... .............................16 Article VII Project Oversight Section 7.01 Progress Meetings............ Section 7.02 Access to Property ........... ......................................... .............................16 ......................................... .............................16 Article VIII General Development Requirements Section 8.01 Scope of Undertaking ..................................................... .............................17 Section 8.02 Standards of Construction ............................................... .............................17 Section 8.03 Compliance With Applicable Law .................................. .............................17 Section 8.04 Payment of Project Costs ................................................ .............................17 Section8.05 Liens ................................................................................ .............................17 Article IX Approval of Applications For Governmental Approvals Section 9.01 Site Plan Approval .......................................................... .............................18 Section 9.02 Borough Cooperation ...................................................... .............................18 Section 9.03 Govermiental Approvals ................................................. .............................19 Article X Representations and Warranties; Redeveloper Covenants Section 10.01 Representations and Warranties by the Redeveloper .... .............................19 Section 10.02 Redeveloper Covenants ................................................ .............................21 Section 10.03 Borough Covenants ....................................................... .............................22 Section 10.04 Recording; Project Covenant ........................................ .............................22 Section 10.05 Effect and Duration of the Covenants ........................... .............................23 -ii— #3004159.03 (086027.149) Section 10.06 Enforcement of Covenants by the Borough........ .................23 Article XI Security for Construction of Project Improvements Section 11.01 Performance and Payment Bonds ............................ .............................24 Article XII Certificates of Occupancy and Completion Section 12.01 Certificate of Occupancy ........................... ............................... Section 12.02 Certificate of Completion .......................... ............................... Article XHI Transfers Section 13.01 Prohibition Against Speculative Development ............................... Section 13.02 Prohibition Against Transfers .......................... ............................... Section 13.03 Transfer of Interest in Redeveloper ................. ............................... Section 13.04 Transfer of Project Area or Project Improvements ......................... Section 13.05 Permitted Transfers .......................................... ............................... Section 13.06 Notice of Permitted Transfers .......................... ............................... Article XIV Indemnification; Insurance ...........24 ...........24 ...........25 ...........25 ...........25 ...........26 ...........27 ...........28 Section 14.01 Redeveloper Indemnification ........................................ .............................28 Section 14.02 Insurance Required ....................................................... .............................29 Article XV Mortgage Financing; Notice of Default to Mortgagee; Right to Cure Section 15.01 Mortgage Financing ...................................................... .............................30 Section 15.02 Notice of Default to the Redeveloper and Right to Cure ........................... 31 Section 15.03 No Guarantee of Construction or Completion by Holder ..........................31 Section 15.04 Borough's Option to Pay Mortgage Debt or Purchase Land .....................32 Article XVI Additional Termination Rights Section 16.01 Additional Ternination Rights ..................................... .............................33 Article XVII Events of Default Remedies — #3004159.03 (086027.149) Section 17.01 Events of Default .......................................................... .............................34 Section 17.02 Uncontrollable Circumstances ...................................... .............................35 Section 18.03 Section 17.03 Remedies Upon Events of Default by the Redeveloper .............................35 Lender Changes ............................................................ .............................38 Section 17.04 Remedies Upon Events of Default by the Borough ...... .............................35 .......................38 Section 17.05 Specific Performance .................................................... .............................36 Section 18.07 Section 17.06 Failure or Delay ............................................................ .............................36 Provisions Not Merged With Deeds ............................. .............................38 Section 17.07 Remedies Cumulative ................................................... .............................36 Section 17.08 Continuance of Obligations .......................................... .............................36 Section 18.11 Section 17.09 Litigation Costs ............................................................. .............................36 Modification of Redevelopment Agreement ................ .............................39 Section17.10 Section 18.13 Mitigation ...................................................................... .............................36 Article XVIH Miscellaneous Section18.01 Notices .......................................................................... .............................36 Section 18.02 Conflict of Interest ........................................................ .............................37 Section 18.03 No Consideration for Redevelopment Agreement ........ .............................38 Section 18.04 Lender Changes ............................................................ .............................38 Section 18.05 Non - Liability of Officials and Employees of the Borough .......................38 Section 18.06 Non- Liability of Officials and Employees of Redeveloper .......................38 Section 18.07 No Brokerage Commissions ......................................... .............................38 Section 18.08 Provisions Not Merged With Deeds ............................. .............................38 Section 18.09 Successors and Assigns ................................................. .............................39 Section 18.10 Titles of Articles and Sections ...................................... .............................39 Section 18.11 Severability ................................................................... .............................39 Section 18.12 Modification of Redevelopment Agreement ................ .............................39 Section 18.13 Execution of Counterparts ............................................ .............................39 Section 18.14 Prior Agreements Superseded ....................................... .............................39 Section 18.15 Waivers and Amendments in Writing ........................... .............................39 Section 18.16 Drafting Ambiguities; Interpretation ............................ .............................39 Section 18.17 Governing Law ............................................................. .............................39 - iv— #3004159.03 (086027.149) Exhibits Exhibit A Redevelopment Plan Exhibit Concept Plan Exhibit C Plans and Specifications Exhibit D Project Schedule -x— #3004159.03(086027.149) THIS REDEVELOPMENT AGREEMENT (the `Redevelopment Agreement' or "Agreement'), dated as of March 31, 2008, by and between THE BOROUGH OF CARTERET a municipal corporation of the State of New Jersey with offices at Carteret Borough Hall, 61 Cooke Avenue, Carteret, New Jersey 07008, acting in the capacity of a redevelopment entity pursuant to the provisions of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A -1 et seq., as amended and supplemented (the `Redevelopment Law ") and its respective successors and assigns (the `Borough "), and VERIZON BUSINESS NETWORK SERVICES INC., a corporation formed under the laws of the State of Delaware with offices at One Verizon Way, Basking Ridge, New Jersey 07920 and its successors and assigns (the "Redeveloper" and, together with the Borough, the "Parties "). RECITALS: WHEREAS, the Borough Council has adopted an ordinance approving and adopting the Federal Boulevard Redevelopment Plan (the `Redevelopment Plan ", a copy of which is attached hereto as Exhibit A) in accordance with the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A -1 et seq. (the "Act'); and WHEREAS, the Redevelopment Plan relates to certain properties within the Borough, specifically Block 49.01, Lots 4, 9 and 11; Block 49.02; Lot 2, Block 64.01, Lots 1, 2, 3, 4.01, 4.03, 4.04, 5, 6.01, 6.02, 7 and 8; Block 64.02, Lots 1, 2.01, 2.02, 3 and 7 (collectively the `Redevelopment Area "); and WHEREAS, the Redeveloper is the fee title owner of that parcel of real property located within the Redevelopment Area designated on the Official Tax Map of the Borough as Block 64.02, Lot 7 (the "Project Area "); and WHEREAS, the Redeveloper desires to expand, or otherwise construct one or more additions to, the existing building located within the Project Area, including any and all other improvements related thereto, all in accordance with the Redevelopment Plan; and WHEREAS, in order to set forth the terms and conditions under which the Parties shall carry out their respective obligations with respect to any such expansion of, or addition to, the existing building located within the Project Area in accordance with the Redevelopment Plan, the Parties have determined to execute this Redevelopment Agreement. NOW, THEREFORE, for and in consideration of the mutual promises, representations, covenants and agreements contained herein and the undertakings of each Party to the other and such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby and to bind its successors and assigns, do mutually promise, covenant and agree as follows: -1— #3004159.03(086027.149) ARTICLE I DEFINITIONS AND INTERPRETATIONS SECTION 1.01. Definitions hi this Redevelopment Agreement, unless a different meaning clearly appears from the context: " Additional Proiect means the redevelopment project to be constructed upon the Additional Project Site pursuant to the terms and provisions of the Additional Project Supplemental Redevelopment Agreement. " Additional Project Site is defined in Section 3.01 hereof. " Additional Project Notice is defined in Section 3.02 hereof. " Additional Project Supplemental Redevelopment Agreement means that supplemental redevelopment agreement for the Additional Project as set forth in Section 3.03 hereof. " Affiliate " means with respect to the Redeveloper, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with the Redeveloper. For purposes of this definition, the term "control" (including the eon•elative meanings of the terms "controlled by" and "under conrrnon control with ") shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of the Redeveloper, whether through the ownership of voting securities or by contract or otherwise. " Applicable Law means any statute, law, constitution, charter, ordinance, resolution, judgment, order, decree, rule, regulation, directive, interpretation, standard or similarly binding authority which, in any case, shall be enacted, adopted, promulgated, issued or enforced by any Governmental Authority, and /or court of competent jurisdiction that relates to or affects the Parties or either of them, the Project Area, the Project Site, the Redevelopment Area, the Project, the Project Improvements, the Additional Project, or any portion thereof, the performance by the Parties of their respective obligations or the exercise by the Parties of their respective rights under this Redevelopment Agreement, including without limitation, the Municipal Land Use Law and the Redevelopment Law. ` Borough Council means the governing body of the Borough. " Borough Covenants is defined in Section 10.03 hereof. " Borough Event of Default means, with respect to the Borough, an Event of Default, as such terns is defined in Section 17.01 hereof. " Borough hrderm ified Parties means the Borough and its officers, elected officials, agents, employees, contractors and consultants. -2— #3004159.03 (086027.149) " Borough " means the Borough of Carteret, a political subdivision of the State of New Jersey, and its permitted successors and assigns. " Building " means the building that currently exists within the Project Area and the proposed extension or addition thereto through the undertaking and constriction of the Project Improvements, all as set forth in the Plans. " Certificate of Completion means a certificate or certificates certifying that the Redeveloper has performed its duties and obligations under this Redevelopment Agreement with respect to the Project Improvements or certifying that the Project Improvements, or any portion thereof, have been Completed; row vided however to the extent that the Project Improvements, or any portion thereof, have been Substantially Completed, the Certificate to be provided shall certify that the Project Improvements, or any portion thereof, have been Substantially Completed. " Certificate of Occupancy means a permanent Certificate of Occupancy, as such term is defined in the New Jersey Administrative Code, issued with respect to all or a portion of the Project upon completion of all or a portion of the Project improvements. " Change in Law means the enactment, promulgation, modification or repeal of or with respect to any Applicable Law subsequent to the Effective Date, which establishes requirements affecting performance by the Party relying thereon as a justification for its failure to perform any obligation under this Agreement which are materially more burdensome than and adversely inconsistent with the requirements which are applicable to the performance of such obligations as of the Effective Date. Actions or inactions of the Borough shall not constitute a Change in Law giving rise to a suspension of any performance or other obligation of the Borough under this Agreement; provided however that the actions or inactions (including without limitation, any denial or conditional approval) of the Planning Board shall not be deemed to constitute a "Change in Law" for purposes of relieving the Redeveloper of any performance or other obligation under this Agreement. However, if the Planning Board action is appealed, the Redeveloper's performance obligations hereunder shall be tolled and /or extended by the amount of time during which such appeal of the Planning Board's action (whether approval, denial or conditional approval) is continuing. " Commence[ment of] Constriction means the undertaking by Redeveloper of any actual physical construction of any Project Inprovements. " Completfel, fed] or Pion] means with respect to the Project Improvements, or any portion thereof, that (a) all work related to the Project Improvements, or a portion thereof, or any other work or actions to which such tern is applied has been completed, acquired and/or installed in accordance with this Agreement and in compliance with Applicable Laws so that (i) the Project Improvements, or any portion thereof that have been Completed, as the case may be, may, in all respects, be used and operated under the applicable provisions of this Agreement, or (ii) with respect to any other work or action to which such term is applied, that the intended purpose of such work or action has been completed, (b) all permits, licenses and approvals that are required in order that a Certificate of Completion can be issued for the Project Improvements, or any portion thereof that have been Completed, or such other work or action to which such #3004159.03 (086027.149) 3— term is applied are in full force and effect, and (c) such "Completion" has been evidenced by a written notice provided by the Redeveloper (with respect to the Project hnprovements, or any portion thereof), which determination is reasonably acceptable to the Borough. " Concept Plan means that certain concept plan, dated as prepared by Sigma 7 Design Group and attached hereto as Exhibit B . " Control " (including the correlative meanings of the terns "controlled by" and "under conunon control with "), as used with respect to the Redeveloper, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of the Redeveloper, whether through the ownership of voting securities or by contract or otherwise. " Effective Date means the date on which this Agreement is executed, or such other date as may be agreed to by the Parties. " Eminent Domain Act means the law governing the acquisition of real property by the Borough, as codified at N.J.S.A. 20:3 -1 et seq. as the same may be amended or supplemented from time to tine. " Environmental Law or " Enviromnental Laws means any and all federal, State, regional, and local laws, statutes, ordinances, regulations, rules, codes, consent decrees, judicial or administrative orders or decrees, directives or judgments relating to pollution, 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 ( "CERCLA ") (42 U.S.C. sect. 9601- 9675); the Resource Conservation and Recovery Act of 1976 ( "RCRA ") (42 U.S.C. sect. 6901, et. seq.), the Clean Water Act (33 U.S.C. sect. 1251, 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 Substances 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 Environmental Rights Act ( N.J.S.A. 2A:35A -1, et. seq.); and the rules and regulations promulgated thereunder. " Estoppel Certificate is defined in Section 6.12 hereof. " Event of Defaul means the occurrence of any Redeveloper Event of Default or Borough Event of Default, as the case may be. "Exhibit(s)" means any exhibit attached hereto which shall be deemed to be a part of this Agreement as if set forth in full in the text hereof. " Foreclosure " is defined in Section 15.03 hereof. " Governmental Approvals means all necessary reviews, consents, permits or other approvals of any kind legally required by any local, county, state or federal governmental or -4— #3004159.03 (086027.149) quasi- goverrmrental entity, including without limitation the Borough and the Planning Board, required to be obtained in order to construct the Project hnprovements. " Governmental Authority means the federal govenmient, the State, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any other governmental entity with authority over the Project, the Project Improvements, the Additional Project, the Project Area or the Project Site, including without limitation, the Borough and the Planning Board. " Green Initiatives means those methods, initiatives and technologies to be utilized in the design, construction and operation of the Project Improvements in an effort to preserve, protect and eriliance the environment and shall include those items identified in Section 2.07 hereof. " Hazardous Substance or Hazardous Materials means any substance, chemical or waste that is listed as hazardous, toxic, a pollutant or contaminant, or dangerous under any applicable federal, state, county or local statute, rile, regulation, ordinance or order. " Holder Failure is defined in Section 15.04(b) hereof. " Holder " is defined in Section 15.01 hereof. " Infiashucture Improvements or " Project Site hrfrastructure Improvements or " Project Site hrfiastructure Improvements means the On -Site Infi Improvements. " Landscape Improvements means those improvements set forth in the Concept Plan. " Material Change ", means, with respect to the Plans, any change in the Plans that would result in any material change (a) in the placement, footprint or square footage of the Building by more than two (2 %) percent, (b) in the height of the building by more than two (2 %) percent, (c) in the type of material to be used for the exterior of the Building, (d) in the color, or any other change that would result in a change of the exterior appearance of the Building, (e) that would negate or elinunate any of the Green Initiatives, (f) that would otherwise alter the view or appearance of any of the Project Improvements from any and all of the surrounding Properties. " Municipal Land Use Law means N.J.S.A. 40:55D -1 et seq., as amended and supplemented. " -Site Infrastructure Improvements means any improvements within the Project Area, excepting the Vertical Improvements, all designed and to be constructed in accordance with the Plans, including, without limitation, (a) grading, site drainage, drainage outfalls, walkways, subsurface excavation and other site preparatory work for the Project, lighting within on -site parking areas, landscaping, fire hydrants and interior roadways, in each case; (b) water and sewer service lines for the Project Area, including hook -ups and service laterals fi - om a building to the curb for water, storm and sanitary sewers, and other utilities, including electric, gas, telephone and cable services (which are to be built underground); and (c) all other improvements which are or may be required to accommodate construction, occupancy and use of the Project; all in accordance with the Plans. -5— #3004t59.03 (086027.149) " Permitted Transfers is defined in Section 13.05 hereof. " Person " means any individual, sole proprietorship, corporation, partnership, joint venture, limited liability company, trust, unincorporated association, urban renewal entity, institution, or any other entity. " Planning Board means the Planning Board of the Borough. " Plans and Specifications means those certain plans and specifications attached hereto as Exhibit C "Plans" means collectively, the Concept Plan and the Plans and Specifications. " Prevailing Wage Act means N.J.S.A. 34:11 -56.25 et seq., as amended and supplemented. " Progress Meeting is defined in Section 7.01 hereof. " Proiect Area has the meaning given in the recitals and shall include the surface, subsurface, and airspace above the real property described in the recitals. " Project Costs means all costs of the Project, including, without limitation, the cost related to the design, permitting and construction of the Project Improvements and all fees due and owing to the Borough in accordance with Article IV hereof. " Project Improvements means, collectively, with respect to the Project Site, the Vertical hmprovements, the Infrastructure Improvements, and the Landscape Improvements, provided however that "Project Improvements" shall not be deemed to include any improvements to be undertaken by third -party utilities (i.e. electric, water, sewer, cable, telephone, etc.), regardless as to whether the cost of such improvements is to be paid by the Redeveloper, provided, however that third -party utilities shall not deemed to be those utilities undertaken, constructed, owned, operated or controlled by an Affiliate. " Project Schedule means the schedule for the design, permitting, financing, construction and completion of the Project by the Redeveloper, as set forth in Exhibit D attached hereto. " Project Site means the property upon which the Project is to be constructed. " Project " means the design, permitting, undertaking, construction and operation of (a) the Infiastructure Improvements, (b) the Landscape Improvements and (c) the Vertical Improvements, all to be undertaken and constructed in accordance with the Plans. " Redeveloper Covenants is defined in Section 10.02 hereof. " Redeveloper Event of Default means, with respect to the Redeveloper, an Event of Default as defined in Section 17.01 hereof. " Redevelopment Area has the meaning given in the Recitals. -6— #3004159.03 (086027.149) " Redevelopment Law has the meaning given in the Recitals. " Redevelopment Plan has the meaning given in the Recitals. " Section " means a section or subsection of this Agreement. " Site Plan means a plan depicting those aspects of the Project Improvements required pursuant to the Borough's site plan ordinance and pursuant to N.J.S.A. 40:55D -7. " State " means the State of New Jersey. " Substantial Com 1e7� tion means that the requirements set forth in clauses (a) through (c), inclusive, of the definition of "Completion" have been satisfied, with the exception of certain irmnaterial portions of the work relating to the Project Improvements that have been Completed, or such other work remains to be Completed as long as the Redeveloper, with respect to the Project Improvements, has prepared and delivered to the Borough a "punch list" of items requiring completion or correction in order for the Redeveloper to firlly comply with the terms of this Agreement, and such "punch list" items are capable of being Completed within ninety (90) days of the date that Completion is certified, as set forth in the written notice provided under (c) of the definition of Completion, or such later date as is mutually acceptable to the Parties, as long as the public health, welfare or safety is not impaired by such additional time for Completion; and provided further however, that all such "punch list" items shall be Completed under all circumstances within (i) one hundred eighty (180) days following the date that Completion is certified, as provided above, with respect to the exterior of any buildings and (ii) three hundred sixty -five (365) days following the date that Completion is certified, as provided above, with respect to the interiors of any buildings. "Substantial Completion" shall be evidenced by issuance of a Temporary Certificate of Occupancy for the Project Improvements, or any portion thereof that has been Substantially Completed. " Temporary Certificate of Occupancy means a temporary Certificate of Occupancy issued with respect to the Project Improvements, or a portion thereof upon Substantial Completion of the Project hnprovements or such portion thereof. " Transfer " means (a) the change, directly or indirectly, in the ownership or control of the Redeveloper, (b) the assignment or attempt to assign this Redevelopment Agreement or any rights herein, or (c) any total or partial sale, transfer, lease, or conveyance of the whole or any part of the Redeveloper's interest in the Project Area. " Uncontrollable Circumstance means the events or conditions set forth below, or any combination thereof, that has (have) had or may reasonably be expected to have a material adverse effect on the rights or obligations of the Parties to this 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 obligation or complying with any condition required of such Party under the terms of this Agreement: (a) An act of God, suc h strike, earthquake, flood, hurricane, sea conditions affecting delivery #3004159.03 (086027.149) as severe natural conditions such as landslide, lightning blizzard, tornado or other severe weather conditions, severe of materials or similar cataclysmic occurrence, nuclear -7— catastrophe, an act of a public enemy, war, blockade, insurrection, riot, general unrest or general restraint of government and people; provided however that any question as to whether any such conditions should be deemed to constitute an Uncontrollable Circumstance shall be considered in light of good engineering practice and industry standards to protect against reasonably foreseeable severe weather conditions (such.as, but not limited to, seasonable temperature and precipitation), taking into account the geographic location and topographic and geoteclnical conditions of the Redevelopment Area. (b) "Change in Law ". (c) Action or inaction by any Governmental Authority which precludes or delays the Party relying thereon from performing its obligations under this Agreement; provided however that (i) such action or failure to act shall not be the result of the willful, intentional or negligent action or inaction of the Party relying thereon, (ii) such action, inaction, issuance, denial or suspension shall not be the result of the illegal or unlawful actions of the Party relying thereon, and/or (iii) decisions interpreting Federal, State and local tax laws that are generally applicable to all business taxpayers shall not constitute an Uncontrollable Circumstance under this paragraph (c). (d) The suspension, termination, interuption, denial, failure of or delay in the renewal or issuance of any Goverrnnental Approval; provided however that 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 (up to thirty (30) days following such suspension, termination, interruption or failure of renewal or issuance) shall constitute or be construed as a willful, intentional or negligent action or inaction by such Party. The Redeveloper's failure to timely and substantially complete submission for a Governmental Approval or failure of the Redeveloper to agree to any commercially reasonable condition to the issuance or renewal of such Governmental Approval shall not constitute an Uncontrollable Circumstance under this paragraph (d); provided however that failure of Redeveloper to agree to any unreasonable condition to the issuance or renewal of such Governmental Approval shall constitute an Uncontrolled Circumstance.. (e) The presence of environmental contamination or pollution or the discharge of hazardous material from or within the Project Area or the Project Site to the extent that the presence of such contamination or pollution or such discharge of such hazardous materials shall not have been caused by the actions or inactions of the Redeveloper, which for purposes of this paragraph (e) shall include the Redeveloper's predecessors in interest, its employees, agents consultants, contractors or subcontractors (regardless as to whether such action or inaction was willful or intentional or the result of negligence). (f) The intentional or unintentional damage or destruction of the Project improvements or any portion thereof or of the Project Area by contractors, as long as the Redeveloper has implemented and complied with customary and reasonable security measures and has maintained customary and reasonable insurance against the occurrence of such acts. -8— #3004159.03 (086027.149) (g) Delay caused by or arising out of legal action or lawsuits filed in challenge of the issuance or grant of any Governmental Approval, including, but not limited to, local Planning Board approval of the Redeveloper's Site Plans. (h) Delay caused by or arising out of the inability of any contractor or materials supplier to make timely delivery or materials of long -lead items due to strike, labor unrest, national emergency or generally recognized materials shortage, or other delays in the industry. The Parties acknowledge that the acts, events or conditions set forth in paragraphs (a) through (h) of this definition are intended to be the only acts, events or conditions which may (upon satisfaction of the criteria set forth above) constitute an Uncontrollable Circumstance. " Vertical Improvements means all buildings, structures, and other improvements within the Project Area, excepting the On -Site Infrastructure Improvements, all designed and to be constructed in accordance with the Plans. SECTION 1.02. Interpretation and Construction In this Redevelopment Agreement, unless the context otherwise requires: (a) The terms "hereby ", "hereof', "hereto ", "herein ", "hereunder" and any similar terms, as used in this Redevelopment Agreement, refer to this Redevelopment Agreement, and the term "hereafter" means after, and the term "heretofore" means before the date of delivery of this Redevelopment Agreement. (b) Words importing a particular gender mean and include correlative words of every other gender and words importing the singular number mean and include the plural number and vice versa. (c) Words importing persons mean and include firms, associations, partnerships (including limited partnerships), busts, corporations, limited liability companies and other legal entities, including public or governmental bodies, as well as natural persons. (d) Any headings preceding the texts of the several Articles and Sections of this Redevelopment Agreement, and any table of contents or marginal notes appended to copies hereof, shall be solely for convenience of reference and shall not constitute a part of this Redevelopment Agreement, nor shall they affect its meaning, construction or effect. (e) Unless otherwise indicated, all approvals, consents and acceptances required to be given or made by any Person or Party hereunder shall not be unreasonably withheld, conditioned, or delayed. (f) Each right of the Borough to review or approve any actions, plans, specifications, or other obligations of the Redeveloper hereunder shall be made by the Borough official(s) with legal authority to conduct such review or grant such approvals. Any review contemplated by this Agreement shall be made in a timely mummer. Upon request of the Redeveloper, the Borough shall inform the Redeveloper of all officials with the required authority. #3004159.03 (096027.149) -9— (g) All notices to be given hereunder and responses thereto shall be given, unless a certain number of days is specified, within a reasonable time, which shall not be less than ten (10) days nor more than twenty (20) days, unless the context dictates otherwise. (h) Unless otherwise indicated, any "fees and expenses" shall be required to be customary and reasonable. ARTICLE II DESCRIPTION OF PROJECT AREA AND THE PROJECT IMPROVEMENTS SECTION 2.01. Proposed Development The Project Improvements consists of (a) construction of the hlf Improvements; (b) construction of the Landscape Improvements and (c) construction of the Vertical Improvements. The Parties hereby expressly agree, covenant and warrant that the Project Improvements shall be undertaken and constructed in accordance with the Plans, the Redevelopment Plan, this Agreement and all Applicable Laws. SECTION 2.02. Change in Plans (a) If at any time there shall be any Material Change in the Plans, for any reason whatsoever, including without limitation, any Material Change as may be requested or desired by the Redeveloper, or otherwise required by any Governmental Authority, other than the Borough, or any contractor or sub - contractor, any such Material Change in Plans shall be subject to the approval of the Borough, in the Borough's sole, but reasonable, discretion. The Borough shall have ten (10) days to approve or disapprove of any such Material Change in the Plans, otherwise such Material Change shall automatically be deemed approved by the Borough. (b) In the event that the Redeveloper shall modify, amend, alter or otherwise change the Plans, and such modification, amendment, alteration or other change, in the good faith determination of the Redeveloper, shall not constitute a Material Change in accordance with Section 2.02(a) hereof, the Redeveloper shall submit such modified, amended, altered or changed Plans to the Borough. Nothing contained herein shall alter or limit the Borough's ability to challenge such modified, amended, altered or changed Plans as being Material Changes. (c) The Redeveloper hereby expressly acknowledges and represents that the Plans, particularly those items within the Plans, the change of which would be deemed a Material Change, is of the essence of this Agreement and is a material inducement to the Borough in entering into this Agreement. SECTION 2.03. Effect of Review of Plans The review and approval by the Borough of the Plans in accordance with the ternis hereof shall not constitute a representation, warranty or guaranty by the Borough that the Plans shall (a) meet or comply with any or all Applicable Laws, (b) be of sufficient quality, form or substance necessary to obtain any and all Government - 10— #3004159.03 (086027.149) Approvals, or (c) be of sufficient quality, form or substance necessary for the intended purpose of constructing the Project Improvements. THE BOROUGH DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS AND MERCHANTABILITY. SECTION 2.04. Infrastructure Improvements The Redeveloper shall provide for the timely implementation of the Infrastructure Improvements in order to complete the Project. Redeveloper shall cooperate with the Borough in all respects to insure that the implementation of the Infrastructure Improvements does not unreasonably interfere with the operation of the existing utilities. Redeveloper agrees to provide all performance and maintenance bonds as required by the Municipal Land Use Law. SECTION 2.05. Project Schedule The Parties agree and acknowledge that adherence to the time set forth in the Project Schedule attached hereto as Exhibit D and in Article XVI hereof is of the essence of this Agreement and is a material inducement to the Borough in entering this Agreement. If Redeveloper fails to meet a completion date set forth in the Project Schedule or in Article XVI hereof or determines that it will fail to meet a completion date, Redeveloper shall promptly provide notice to the Borough stating: (i) the reason for the failure to complete the applicable task; (ii) Redeveloper's schedule for completing such task; and (iii) the method or methods by which Redeveloper proposes to achieve subsequent tasks - by the relevant completion dates. This Section shall in no way limit the right of the Borough under Articles XVI, XVII or other applicable provisions of this Agreement. SECTION 2.06. Green Initiatives As further set forth in the Plans, the Redeveloper agrees that it shall undertake and/or constrict the following Green Initiatives it connection with the Project: (a) HVAC system utilizes various frequency drives that allows the equipment to run more efficiently. (b) Free Cooling system allowing for facility cooling without running chillers in the winter. ARTICLE III ADDITIONAL PROJECT SECTION 3.01. Additional Project The Parties hereto expressly represent and acknowledge that upon the completion of the Project Improvements in accordance with this Agreement, approximately 2 acres [need to confirvi acreagel of the Project Area, situated towards the northern and eastern boundaries of the Project Area (the "Additional Project Site "), will still be underutilized and undeveloped. The Redeveloper specifically represents, acknowledges and agrees that the Borough has a unified redevelopment policy and strategy for the redevelopment of the entire Project Area and that it is in the public interest that the entire Project Area be redeveloped. -11— #3004159.03 (086027.149) SECTION 3.02. Additional Project Notice At any time following the date which is sixty (60) months from the receipt of Final Site Plan approval from the Planning Board for the Project Improvements, the Borough shall have the right to send Redeveloper a written notice requesting whether or not the Redeveloper intends to redevelop the Additional Project Site. Redeveloper shall have ninety (90) days after receipt of such notice to deliver a notice of its intention to redevelop the Additional Project Site (the "Additional Project Notice "). In the event that the Redeveloper shall not deliver the Additional Project Notice to the Borough in accordance with the terms hereof, such failure shall automatically be deemed to mean that the Redeveloper does not intend to redevelop the Additional Project Site. SECTION 3.03. Additional Project Supplemental Redevelopment Agreement (a) Following delivery of the Additional Project Notice, and assuming such Additional Project Notice sets forth Redeveloper's desire and intention to redevelop the Additional Project Site, the parties shall act in good faith to negotiate and enter into the Additional Project Supplemental Redevelopment Agreement. To the extent applicable to the Additional Project, this Redevelopment Agreement shall be adapted and used as the model for the Additional Project Supplemental Redevelopment Agreement. Notwithstanding anything contained herein to the contrary, the Additional Project Supplemental Redevelopment Agreement shall contain all of the similar rights, benefits and protections afforded to the Borough herein, including, without limitation, (a) the right of the Borough to reasonably approve all designs, plans and specifications for the Additional Project, (b) the right of the Borough to impose and receive a redeveloper's fee proportionally consistent with the terms hereof based on the square footage of the building to be constructed on the Additional Project Site and reasonable legal and professional planner fees but no other additional fees, (c) a reasonable project schedule and completion dates, (d) inclusion of certain green initiatives consistent with the terns hereof, (e) inclusion of certain project labor commitments consistent with the terms hereof, (f) compliance with all Applicable Laws, (g) indemnification of all Borough indemnified Parties, (h) that the Additional Project Supplemental Redevelopment Agreement shall be recorded such that its shall constitute a project covenant punning with the Additional Project Site until a Certificate of Completion is issued, (i) limitation on Transfers, (j) Borough termination rights, (k) events of defaults and remedies, and (1) such other terms or provisions similar in form and substance to those set forth herein. It being understood and agreed that if the design, plans, specifications, labor incentives, and green incentives for the Additional Project Site are consistent with the Project Site, the Borough shall approve same with respect to the Additional Project Site. (b) In the event the parties are unable to reach agreement on the terns of the Additional Project Supplemental Redevelopment Agreement within nine (9) months fi - om the date of delivery of the Additional Project Notice, assuming such Additional Project Notice sets forth the Redeveloper's desire and intention to redevelop the Additional Project Site, the parties agree to retain a mutually acceptable arbitrator to aid in reaching such agreement. If the parties are still unable to reach agreement within three (3) months following the cormnencement of such non - binding arbitration, the Borough may terminate the Redeveloper's rights under this Article III if the Redeveloper rejects the reconmiendations of said arbitrator. Costs of said arbitration -12— #3004159.03 (086027.149) shall be shared equally. Other costs, including without limitation, the reasonable costs and fees of each party's attorneys', witnesses' and experts' and shall be paid by the party using such services. SECTION 3.04. Non-Binding, Condemnation (a) The Borough hereby represents and acknowledges that nothing contained in this Article 111 shall bind the Redeveloper to redevelop the Additional Project Site, undertake the Additional Project, or enter into the Additional Project Supplemental Redevelopment Agreement and the failure of Redeveloper to do any of the foregoing shall not be a default under this Agreement. (b) The Redeveloper hereby represents and acknowledges that in the event that the Redeveloper shall not undertake the Additional Project, redevelop the Additional Project Site or enter into the Additional Project Supplemental Redevelopment Agreement, all in accordance with the terms hereof, the Borough shall have all rights available to the Borough under the Redevelopment Law and the Eminent Domain Act solely with respect to the Additional Project Site. ARTICLE W FINANCIAL OBLIGATIONS SECTION 4.01. Project Cost and Financing (a) The Redeveloper represents that the estimated cost of the Project is $10,000,000.00. (b) The Redeveloper represents, covenants, warrants and agrees that all costs associated with the development and financing for the Project is the sole responsibility of the Redeveloper and all Project Costs shall be home by the Redeveloper. (c) The Redeveloper represents, covenants, warrants and agrees that it has obtained or can obtain and will connnit the requisite equity and debt financing in an amount necessary to implement and complete the Project and pay all Project Costs . SECTION 4.02. Redeveloper's Fee The Redeveloper shall pay to the Borough a redeveloper's fee in the amount of One Hundred Ninety Five Thousand and No/100 ($195,000.00) Dollars payable as follows: (i) $100,000.00 upon the execution of this Agreement by both parties; and (ii) $95,000.00 upon receipt of the Final Site Plan approval from the Planning Board and the issuance of a building permit. If Redeveloper does not receive Final Site Plan approval from the Planning Board, the Redeveloper Fee shall be promptly refunded to Redeveloper. -13— #3004159.03 (086027.149) SECTION 4.03. Impact Fee Payment of the Redeveloper's Fee in accordance with Section 4.02 hereof shall be deemed as payment of any impact fee that may have otherwise been due and payable in accordance with §160.46.4 of Code of the Borough or Borough Ordinance No. 07 -05. Provided that the Redeveloper shall pay the Redeveloper's Fee in accordance with Section 4.02 hereof, no impact fee as set forth in §160.46.4 of Code of the Borough or in Borough Ordinance No. 07 -05 shall otherwise be due. SECTION 4.04. Borough Fees Within twenty (20) days from the receipt of an invoice(s), the Redeveloper shall pay to the Borough, or alternatively, directly to the Borough's outside legal counsel and professional planner, respectively, the actual fees and costs of the Borough's outside legal counsel and professional planner, respectively, up to, and not in excess of, in the aggregate, Fifty -Five Thousand Dollars ($55,000.00). SECTION 4.05. Governmental Approval Fees The Redeveloper shall pay all fees for permits required by the Borough (in accordance with standard fees provided in the Borough's ordinances) and any other Governmental Authority for the constriction and development of the Project Improvements. Redeveloper shall pay all other permit fees, which include any permit fees payable by the Borough or Redeveloper to all required Governmental Authorities, other than the Borough, or for which the Borough is required to reimburse other Governmental Authorities, or is otherwise required to pay other third party contractors of such Governmental Authorities. SECTION 4.06. Other Fees Other than as set forth in Section 4.03 hereof, the Redeveloper shall pay all other fees required under the Code of the Borough of Carteret. ARTICLE V ENVIRONMENTAL MATTERS SECTION 5.01. Environmental Compliance in General. The Redeveloper hereby expressly agrees and specifically assumes any and all responsibility for the investigation and remediation of all environmental conditions, whether known or unknown, on, under or migrating to or from the Project Area or anything affected off -site, as may be required by applicable Environmental Laws and regulations, and the Redeveloper shall bear all costs for such investigation and remediation of the Project Site ARTICLE VI CONSTRUCTION OF PROJECT IMPROVEMENTS SECTION 6.01. Construction of Project Improvements The Redeveloper shall construct, or cause to be constructed, the Project Improvements in accordance with the Plans, the Project Schedule and Article XVI hereof at the Redeveloper's sole cost and expense. SECTION 6.02. Relocation of Utilities The Redeveloper acknowledges that utility providers may have certain rights with respect to the Project Area or Project Site and may own -14— #3004159.03 (086027.149) certain facilities located therein. The Redeveloper agrees that it is its sole responsibility to undertake the appropriate measures to negotiate with, acquire, relocate or otherwise address the existence of these utilities and improvements and easements therefore, in order to complete construction of the Project Improvements, as provided by this Redevelopment Agreement. To the extent reasonably requested by the Redeveloper, the Borough shall cooperate in facilitating the installation and /or relocation of any such affected utilities. SECTION 6.03. Prevailing Wages The parties hereby acknowledge that the Prevailing Wage Act applies only to the extent this Agreement is deemed to constitute a Public Works contract and the constriction of the Project hnprovements is deemed to constitute a "Public Work," as defined in the Prevailing Wage Act. The Redeveloper shall determine whether the Prevailing Wage Act applies and, to the extent that the Prevailing Wage Act applies, the Redeveloper shall be responsible for costs associated therewith. SECTION 6.04. Proiect Labor The Redeveloper agrees that it shall undertake union labor for the plumbing and concrete work. The Borough acknowledges that many of the trades in connection with the Project require specialized contractors and may not be union labor. SECTION 6.05. Affirmative Action Redeveloper represents and warrants that it has an affirmative action policy that is in compliance with all Applicable Laws and that it shall comply with such policy in connection with the Project. SECTION 6.06. Nondiscrimination During Construction; Equal Opportunity The Redeveloper for itself and its successors and assigns agrees that in the construction of the Project Improvements the Redeveloper will not discriminate against any employee or applicant for employment because of race, color, religion, creed, national origin, ancestry, physical handicap, age, marital status, affectional preference or gender. SECTION 6.07. Maintenance of Project Area Following commencement of physical construction of the Project Improvements, the Redeveloper will maintain all areas of the Project Area including any Project Improvements related thereto, including trash collection and receptacles, and all such issues identified in the Borough Property Maintenance Code, § 222. SECTION 6.08. Traffic Impact Study To the extent required by Applicable Law, the Redeveloper will provide the Borough and the Planning Board with a traffic impact study for the Project Improvements in connection with its application for approval of the Site Plan. SECTION 6.09. Traffic The Redeveloper and the Borough agree that the direction, flow and amount of traffic in and around the Project Area are issues to be addressed during the construction of the Project Improvements, as well as after its completion. To the extent required by Applicable Law, the Redeveloper will exert reasonable efforts to minimize the traffic effects of the Project Improvements upon the surrounding neighborhoods. SECTION 6.10. Estoppel Certificates Within thirty (30) days following written request therefore by a Party hereto, or of any Holder, purchaser, tenant or other party having an interest in the Project Area, the other party shall issue a signed certificate (`Estoppel Certificate ") either stating that this Redevelopment Agreement is in frill force and effect and that there is no default or breach under this Redevelopment Agreement (nor any event which, with #3004159.03 (086027.149) 15— the passage of time and the giving of notice would result in a default or breach under this Redevelopment Agreement), or stating the nature of the default or breach or event, if any. In the event the Estoppel Certificate discloses such a default, breach or event, it shall also state the manner in which such default, breach and/or event may be cured. No more than a reasonable number of Estoppel Certificates may be requested per year. SECTION 6.11. Cooperation The Parties shall fully cooperate with each other as necessary to effectuate the Project Improvements. ARTICLE VII PROJECT OVERSIGHT SECTION 7.01. Progress Meetings The Parties agree to attend and participate in progress meetings ( "Progress Meetings ") to report on the status of the Project Improvements and to review the progress under the Project Schedule. Progress Meetings shall be held no more frequently than quarterly, or as otherwise agreed to by the Parties. SECTION 7.02. Access to Property The Borough and its authorized representatives shall have the right to enter the Project Area to inspect the Project Improvements and any and all work in progress for the purpose of furthering its interest in this Redevelopment Agreement provided that any such inspection shall be upon prior reasonable notice to Redeveloper and such inspection shall be made with a representative of Redeveloper present at all times.. The Borough's inspection shall be on a mutually agreeable date and time and the parties shall seek to accommodate each other. During the inspection, the Borough shall comply with any security directives and procedures issued by Redeveloper. It is understood and agreed that the Borough's inspection rights under this Agreement shall be with respect to the new improvements being constructed and not the existing Building. Notwithstanding anything contained herein to the contrary, nothing contained herein is intended to, or does in fact, waive, surrender, renounce, abandon, or otherwise relinquish any power, authority, jurisdiction or right of the Borough and its authorized representatives to access or enter the Project Area, including the existing Building, as may be permitted by, and in accordance with, Applicable Law, including any notice requirements thereunder. In no event shall the Borough's inspection of the Project Improvements (or any construction activities related thereto) be deemed acceptance of the work or be deemed to waive any right the Borough has under this Redevelopment Agreement. The Borough acknowledges hereby that the Project Area will be an active construction site and that the Redeveloper shall not be liable or responsible to the Borough, its employees or agents for injury to person or property sustained in cormection with any such inspection, except to the extent that the Redeveloper violates the standard of due care owed to invitees. ARTICLE VIII GENERAL DEVELOPMENT REQUIREMENTS -16— #3004159.03 (086027.149) SECTION 8.01. Scope of Undertaking The services and responsibilities undertaken by the Redeveloper hereunder include all aspects of the design, development, construction and operation of the Project Improvements, including without limitation, all design, engineering, permitting and administrative aspects, the performance of or contracting for and administration and supervision of all physical work required in connection with the Project Improvements, arrangement for interim and final inspections and any other actions required to satisfy the requirements of any applicable Governmental Approvals, the administration, operation and management, or contracting for the administration, operation and management of the Project Improvements and all aspects of the funding of the Project Improvements, including without limitation, equity finding and construction, interim and permanent financing, all at the sole cost and liability of the Redeveloper. SECTION 8.02. Standards of Construction Without limitation, all work on the Project Improvements shall be performed in a good and workmanlike manner, with the materials called for under the Plans and the Governmental Approvals being of such quality as is required by the Plans and such Govemnnental Approvals. SECTION 8.03. Compliance With Applicable Law Notwithstanding anything contained herein to the contrary, including as may be set forth in the Plans, the Project Improvements and all materials, fixtures and equipment used or installed in connection therewith shall be in full compliance with all Applicable Laws. SECTION 8.04. Payment of Project Costs The Redeveloper shall pay (or cause to be paid), all costs and expenses, including, without limitation, all contractors' requisitions and the cost of materials and equipment incurred in connection with work on the Project Improvements and all fees and expenses of any consultants and professionals and like providers acting for (or on behalf of) the Redeveloper. SECTION 8.05. Liens. The Redeveloper shall indemnify and hold the Borough Indemnified Parties harmless from all liens, or claims or rights to enforce liens, against the Project Area, or the improvements arising out of any activities or work performed by (or on behalf of) the Redeveloper or labor or materials furnished to the Redeveloper under this Redevelopment Agreement. ARTICLE IX APPLICATIONS FOR GOVERNMENTAL APPROVALS SECTION 9.01. Site Plan Approval (a) The Redeveloper, shall at its own cost and expense cause to be prepared by a licensed architect, surveyor and/or engineer of the State of New Jersey a preliminary and /or final Site Plan and if necessary a Subdivision Plan (hereinafter collectively referred to as the "Preliminary Site Plan ", or alternatively, the "Final Site Plan") and shall, by the date set forth in the Project Schedule, submit same to the Planning Board and file the required Governmental Application(s) complete with any supporting documents as shall be required to obtain approval -17- 93004159.03 (086027.149) of the Preliminary or Final Site Plan in accordance with the ordinances of the Borough and the Municipal Land Use Law, N.J.S.A. 40:55D - 1 et sue., as the same may be amended from time to time. (b) Prior to its submission of the Preliminary or Final Site Plan to the Planning Board, the Redeveloper shall provide to the Borough the most current Estoppel Certificate along with a certification that the Preliminary or Final Site Plan is in compliance and conformity with this Redevelopment Agreement and the Plans. Under no circumstances shall the Redeveloper submit a Preliminary or Final Site Plan application to the Planning Board, except in compliance with this Section 9.01(b) SECTION 9.02. Borough Cooperation To the extent reasonably requested by the Redeveloper and, to the extent permitted by Applicable Law (and without violating its obligations as a governmental entity or regulatory body having competent jurisdiction over the Project), the Borough shall provide support and assistance to the Redeveloper in facilitating the review of all plans, issuance of all permits, request for inspections and the conduct of such inspections through the appropriate Borough board, body or department, including the Planning Board, as applicable. To the extent permitted by Applicable Law, and upon the reasonable request of the Redeveloper, the Borough shall use its best efforts to (i) cause the Planning Board to begin consideration of any application submitted by the Redeveloper within thirty (30) days following the Planning Board's determination that such application is administratively and technically complete, and (ii) cause the Planning Board to complete the Planning Board's hearings with respect to such applications within sixty (60) days of determination of completeness or as expeditiously as practicable in light of the scope and nature of questions/comments of the Planning Board and members of the public with respect to such applications, and, to (iii) cause the Planning Board to convene special meetings as frequently as is required and convenient (consistent with the requirements of Applicable Law) in order to complete such hearings. SECTION 9.03. Government Approvals The Redeveloper and the Borough shall cooperate and use diligent efforts to secure, or cause to be secured, any and all Governmental Approvals which may be required to be obtained Rom any governmental agency having jurisdiction over the Project hmprovements. The Borough agrees to fully cooperate with the Redeveloper in obtaining the Governmental Approvals, to the extent reasonably requested by the Redeveloper, including without limitation, execution (as a co- applicant) of any application relating to such Governmental Approvals. ARTICLE X REPRESENTATIONS AND WARRANTIES; REDEVELOPER COVENANTS SECTION 10.01. Representations and Warranties by the Redeveloper In addition to, but not limited by, any and all other representations and warranties of the Redeveloper - 18— #3004159.03 (086027.149) contained in this Agreement, the Redeveloper hereby represents and warrants the following for the purpose of inducing the Borough to enter into this Redevelopment Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof. (a) The Redeveloper is the fee title owner of the Project Area. (b) The Redeveloper is a corporation organized under the laws of the State of Delaware, is in good standing tinder the laws of the State of Delaware, and has all requisite power and authority to carry on its business as now and whenever conducted, and to enter into and perform its obligations under this Redevelopment Agreement. (e) The Redeveloper has the legal power, right and authority to enter into this Redevelopment Agreement and the instruments and documents referenced herein to which the Redeveloper is a party, to consummate the transactions contemplated hereby, to take any steps or actions contemplated hereby, and to perform its obligations hereunder. (d) This Redevelopment Agreement has been duly authorized, executed and delivered by the Redeveloper and is valid and legally binding upon the Redeveloper and enforceable in accordance with its terms. The execution and delivery thereof shall not constitute a default under or violate the terns of any indenture, agreement or other instrument to which the Redeveloper is a party. (e) No appointment of receiver, liquidator, custodian or trustee of the Redeveloper shall be effective as of the Effective Date, and no petition to reorganize the Redeveloper pursuant to the United States Bankruptcy Code or any similar statute that is applicable to the Redeveloper shall be effective as of the Effective Date; it being understood that the Redeveloper means the entity existing from and after the acquisition by Verizon Commiumications Inc. (f) From and after the acquisition of the Redeveloper by Verizon Communications Inc., no adjudication of bankruptcy of the Redeveloper or a filing for voluntary bankruptcy by the Redeveloper under the provisions of the United States Bankruptcy Code or any other similar statute that is applicable to the Redeveloper shall have been filed. (g) From and after the acquisition of the Redeveloper by Verizon Communications hic., no indictment has been returned against any partner, director or officer of the Redeveloper with respect to any transaction related to the transactions contemplated by the terms of this Redevelopment Agreement or otherwise. (h) There is no pending or, to the best of the Redeveloper's knowledge, threatened litigation that would prevent the Redeveloper from performing its duties and obligations hereunder. (i) There are no suits, other proceedings or investigations pending or, to the best of the Redeveloper's knowledge, threatened against the Redeveloper that would have a material adverse effect on the financial condition of the Redeveloper. #3004159.03 (036027.149) 19— 0) All materials and documentation, including without limitation, the Plans, submitted by the Redeveloper and its agents to the Borough and its agents were, at the time of such submission, and as of the Effective Date, materially accurate, and the Redeveloper shall continue to inform the Borough of any material and adverse changes in the documentation submitted. The Redeveloper acknowledges that the facts and representations contained in the information, including without limitation, the Plans, submitted by the Redeveloper are a material factor in the decision of the Borough to enter into this Redevelopment Agreement. (k) The Redeveloper is financially and technically capable of developing, designing, financing and constructing the Project Improvements. (1) Neither the Borough nor any of its agents, representatives, employees or officers have made any representations or warranties, expressed or implied, except as expressly set forth in this Agreement. Without limiting the generality of the foregoing, Redeveloper has not relied on any representations or warranties (except those representations, if any, expressly set forth in this Agreement) as to (i) the current or future real estate tax liability, assessment or valuation of any of its property, including without limitation, the Project Area, Project Improvements, and/or the Additional Project; (ii) the potential qualification of any of its property, including without limitation, the Project Area, Project huprovements, and/or the Additional Project for any and all benefits conferred by federal, state or municipal laws, whether for special real estate tax treatment, insurance or any other benefits; (iii) the compliance of any of its property, including without limitation, the Project Area, Project Improvements, and /or the Additional Project, in its current or future state, with applicable zoning ordinances and the ability to obtain a variance in respect of any such property's non- compliance, if any, with said zoning ordinances; (iv) the current or future use of any of its property, including without limitation, the Project Area, Project Irnprovements, and/or the Additional Project, including but not limited to the use of any such property for any commercial or residential purpose; (v) the physical condition, including, but not limited to, the environmental condition, of any of its property, including without limitation, the Project Area, Project Improvements, and/or the Additional Project; and (vi) the ability to obtain federal, state, county or municipal approvals for construction or alteration of any improvement on any of its property, including without limitation, the Project Area, Project Improvements and/or the Additional Project. (m) The Redeveloper is entering into this Agreement and shall perform all of its obligations hereunder and consummate the transaction(s) contemplated by this Agreement solely in reliance on and as a result of Redeveloper's own investigations and efforts and at Redeveloper's sole risk. Redeveloper acknowledges that this paragraph was a negotiated part of this Agreement and serves as an essential component of consideration for the same. SECTION 10.02. Redeveloper Covenants hn addition to, but not limited by, any and all other covenants and agreements of the Redeveloper contained in this Agreement, the Redeveloper hereby covenants and agrees to the following for the purpose of inducing the Borough to enter into this Redevelopment Agreement and to consummate the transactions contemplated hereby (collectively, "Redeveloper Covenants "): (a) The Redeveloper shall use diligent efforts to obtain all Govenmieunt Approvals necessary for the construction and development of the Project Improvements. The Redeveloper -20— #3004159.03 (086027.149) shall construct, improve, operate and maintain the Project Improvements in compliance with this Agreement, the Plans, all Governmental Approvals, and all applicable laws. (b) The Redeveloper shall (i) construct and develop the Project Improvements with due diligence and (ii) shall begin and Complete construction of each item in the Project Schedule and Article XVI hereof on or prior to the applicable date set forth therein (and for those items for which commencement dates only are given, such items shall be completed in a conunercially reasonable period). (c) The Redeveloper shall construct the Project Improvements in accordance with this Redevelopment Agreement, the Plans, the Redevelopment Law, the Redevelopment Plan, and all other Applicable Law and, in the event that the Redeveloper wishes to change or modify the Project Improvements, notwithstanding the fact that such change or modification is authorized by the Redevelopment Plan, such changes or modifications must, in all circumstances, comply with Section 2.02 hereof The Redeveloper acknowledges that the Borough has relied on the Plans, the Project Schedule and Article XVI hereof in entering into its obligations under this Redevelopment Agreement. (d) The Redeveloper shall fulfill its material obligations under any and all agreements it enters into with third parties with respect to the acquisition, construction, leasing, sale, financing and other matters relating to the Project Improvements; provided however that this covenant is not intended to prevent the Redeveloper from contesting the scope or nature of such obligations as and to the extent provided in such agreements and/or pursuant to appropriate legal procedures. (e) The Redeveloper shall complete the Project Improvements or cause same to be completed, on or prior to the date set forth in the Project Schedule and Article XVI hereof at its sole cost and expense. (f) The Redeveloper shall not discriminate against or segregate any person, or group of persons, on account of race, color, religion, creed, national origin, ancestry, physical handicap, age, marital status, affectional preference or gender in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project Improvements, nor shall the Redeveloper itself, or any Person claiming under or through the Redeveloper, 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, sublessees, or vendees of the Project Improvements. (g) The Redeveloper shall not restrict the sale, lease, sublease, rental, transfer, use, occupancy, tenure, or enjoyment of the Project Improvements on the basis of race, color, religion, creed, national origin, ancestry, physical handicap, age, marital status, affectional preference or gender of any person. SECTION 10.03. Borough Covenants In addition to, but not limited by, any and all other covenants and agreements of the Borough contained in this Agreement, the Borough hereby covenants and agrees to the following for the put of inducing the Redeveloper to enter into this Redevelopment Agreement and to consummate the transactions contemplated hereby (collectively, the "Borough Covenants "): -21— #3004159.03 (086027.149) (a) Provided that (i)(A) there shall not exist a Redeveloper Event of Default and (B) this Agreement has not otherwise been terminated, the Borough shall forbear from seeking to acquire or obtain title to the Project Area through the exercise of the Borough's power of condemnation in accordance with the Redevelopment Law and the Eminent Domain Act; provided however that if the Redeveloper and Borough have not entered into the Additional Project Supplemental Redevelopment Agreement in accordance with the terns hereof such forbearance by the Borough shall inmrediately cease with respect to the Additional Project Site and shall have no farther force and effect and the Borough shall have any and all rights provided to the Borough under the Redevelopment Law, the Eminent Domain Act and all other Applicable Law with respect solely to the Additional Project Site. (b) Upon the Completion of the Project hmprovements for the Project Site in accordance with the terms hereof the conditions that were found and determined to exist at the time the Project Area was determined to be in need of redevelopment shall be deemed to no longer exist, the Project Area (except the Additional Project Site) shall no longer be subject to eminent domain as a result and the conditions and requirements of N.J.S.A. 40A:12A -9 shall be deemed to have been satisfied. (c) Upon completion of the Additional Project with respect to the Additional Project Site in accordance with the Additional Project Supplemental Redevelopment Agreement the conditions that were found and determined to exist at the time the Project Area was determined to be in need of redevelopment shall be deemed to no longer exist, the Additional Project Site shall no longer be subject to eminent domain as a result and the conditions and requirements of N.J.S.A. 40A:12A -9 shall be deemed to have been satisfied with respect to the Additional Project. SECTION 10.04. Recordn I4, Project Covenant Upon the execution of this Agreement, a memorandum of this Agreement shall be filed and recorded with the Middlesex County Clerk by the Borough, at the Redeveloper's expense, such that this Agreement shall be reflected upon the land records of the County of Middlesex as a project covenant running with the Project Area, including any Project Improvements related thereto until the Certificate of Completion is issued. Upon the issuance of a Certificate of Completion for the Project Improvements, the covenants shall be released with respect to the Project Area (excluding the Additional Project Site). Upon the issuance of a Certificate of Completion for the Additional Project, the covenants shall be released with respect to the Additional Project Site. SECTION 10.05. Effect and Duration of the Covenants Except as otherwise set forth herein, it is intended and agreed that the agreements and covenants set forth in Section 10.02 hereof and those elsewhere in this Redevelopment Agreement shall be covenants running with the Project Area until the Project Improvements shall be Completed, and such covenants shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Redevelopment Agreement, be binding, to the fullest extent permitted by Applicable Law and equity, for the benefit and in favor of, and enforceable by, the Borough, its successors and assigns, and any successor in interest to the Project Improvements, or any part thereof, the Redeveloper, its successors and -22— #3004159.03 (086027.149) assigns and every successor in interest therein, and any Party in possession or occupancy of the Project bmprovements, or any part thereof SECTION 10.06. Enforcement of Covenants by the Borough hi amplification, and not in restriction of the provisions of this Article X , it is intended and agreed that the Borough and its successors and assigns shall be deemed beneficiaries of the agreements and covenants set forth in this Redevelopment Agreement, both for and in their own right but also for the purposes of protecting the interests of the community and other parties, public or private, in whose favor or for whose benefit such agreements and covenants have been provided. Such agreements and covenants shall run in favor of the Borough for the entire period during which such agreements and covenants shall be in force and effect, without regard to whether the Borough has at any time been, remains, or is an owner of any land or interest therein, or in favor of which such agreements and covenants relate. The Borough shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant, to which it or any other beneficiaries of such agreement or covenant may be entitled, including all other rights as more specifically set forth in Article XVII hereof. This Section is not intended to confer standing to sue on any party other than the Borough. ARTICLE XI SECURITY FOR CONSTRUCTION OF PROJECT IMPROVEMENTS SECTION 11.01. Performance and Payment Bonds (a) The Redeveloper shall require its contractor(s) for the Project Improvements to furnish performance and payment bonds (the "Performance and Payment Bond(s) ") as security for the performance of the obligations of the contractor(s) under the contract(s) for the Project bmprovements to the extent required and in the form to be posted in compction with the Municipal Land Use Law. (b) The Redeveloper shall bear the cost of obtaining any Performance and Payment Bond(s), if issued. ARTICLE XII CERTIFICATES OF OCCUPANCY AND COMPLETION SECTION 12.01. Certificate of Occupancy Upon completion of the construction of any building that is included as part of the Project Improvements, the Redeveloper shall apply to the appropriate governmental officer or body for a Certificate of Occupancy for that building. The Redeveloper shall take all actions required for issuance of a Certificate of Occupancy and the Borough shall promptly process any applications for same. Upon satisfaction of the -23— #3004159.03 (086027.149) requirements set forth in the definition of "Substantial Completion," the Redeveloper may apply to the appropriate governmental officer or body for issuance of a Temporary Certificate of Occupancy which shall be effective until such time as a permanent Certificate of Occupancy is received. Notwithstanding the issuance of the Temporary Certificate of Occupancy, the Redeveloper shall not be deemed to have completed the Project Improvements, or portion thereof, as applicable, until the permanent Certificate of Occupancy is issued. As such, until such permarent Certificate is issued, the provisions of this Redevelopment Agreement shall remain in frill force and effect. SECTION 12.02. Certificate of Completion The completion of the Project hmprovements shall be evidenced by a certificate of the Borough in recordable form ( "Certificate of Completion ") accepting the terms of a certificate of the Redeveloper stating that: (a) the Project Improvements have been Completed (excluding any normal and customary tenant improvements) in accordance with the this Agreement, the Plans, Final Site Plan approval and all labor, services, materials and supplies used in connection therewith have been or will be paid for ; (b) other facilities necessary to achieve Substantial Completion and commence occupancy of a particular portion of the Project hnprovements has been acquired, constructed or improved in accordance with this Agreement, the Plans, and Final Site Plan approval and all costs and expenses incurred in correction therewith have been or will be paid; and (c) a Certificate of Occupancy, if required, and any other permissions required, if any, of Governmental Authority for the occupancy and use of all portions of the Project Improvements for the purposes contemplated by this Redevelopment Agreement, the Plans, and the Redevelopment Plan, have been obtained. The Borough shall not unreasonably withhold or delay the delivery of a Certificate of Completion. If the Borough determines that the Redeveloper is not entitled to a Certificate of Completion, the Borough shall, at the written request of the Redeveloper, within thirty (30) days of receipt of the written request, provide the Redeveloper with a written statement of the reasons the Borough refused or failed to furnish a Certificate of Completion. If the reason for the refusal is confined to the immediate availability of specific minor finish items, the Borough will issue its Certificate of Completion upon the receipt of a binding certification by Redeveloper to complete such work. A separate Certificate of Completion shall be issued for the Project Site and Additional Project Site. ARTICLE XM TRANSFERS SECTION 13.01. Prohibition Against Speculative Development The Redeveloper covenants that its undertakings pursuant to this Redevelopment Agreement shall be for the purpose of redevelopment of the Project Area and not for speculation in land holding. SECTION 13.02. Prohibition Against Transfers Subject to Section 13.05 hereof, the Redeveloper recognizes that, in view of (a) the importance of the redevelopment to the general welfare of the cormnunity; (b) the public assistance to be made available by law and by the Borough on the conditions stated herein, for the purpose of making such redevelopment possible; (c) the fact that a change in ownership or control of the Redeveloper, or any other act or -24— #3004159.03 (036027.149) transaction involving or resulting in a change in ownership or control of the Redeveloper to the degree thereof, is for practical purposes a transfer or disposition of the property interest then owned by the Redeveloper, no voluntary or involuntary Transfer of the Redeveloper, the Project Area or the Project Improvements shall occur or be permitted as except as expressly set forth in this Agreement. SECTION 13.03. Transfer of Interest in Redeveloper Subject to Section 13.05 hereof, in the event that there shall be a Transfer of the ownership or control of the Redeveloper, such Transfer shall not be deemed an Event of Default provided that the transferee shall, by instrument in writing reasonably acceptable to the Borough, for itself and its successors and assigns, and expressly for the benefit of the Borough, have expressly assumed all of the relevant obligations of the Redeveloper under this Agreement and agreed to be subject to all the relevant conditions and restrictions to which the Redeveloper is subject. Notwithstanding the foregoing, Transfers of the Project Site, or the Additional Project Site, are expressly permitted after the issuance of a Certificate of Completion for the Project Site, or the Additional Project Site, as applicable. SECTION 13.04. Transfers of Project Area or Project Improvements Prior to Issuance of Certificate of Completion (a) In the event that there shall be a Transfer of the title to all or a portion of the Project Area or the Project Improvements prior to the Certificate of Completion, such Transfer shall not be deemed an Event of Default provided that the proposed transferee satisfies the following conditions, as reasonably determined by the Borough: (i) the proposed transferee shall own and occupy the Project Area or the Project Improvements being transferred to it at least until the final Certificate of Completion for the Project Improvements is issued, and shall represent same in writing to the Borough. (ii) the proposed transferee shall have qualifications and financial responsibility necessary and adequate to fulfill the obligations undertaken in this Agreement with respect to the Project Improvements and the Additional Project, if applicable, by the Redeveloper and other obligations pursuant to Governmental Approvals (including, but not limited to, maintenance of remedial systems), or any part of such obligations that may pertain to the transferred interest or the transferred portion of the Project Area, the Project Improvements, and/or the Additional Project, as determined fiom: (1) Audited financial statements indicating (i) net worth or (ii) unencumbered lines of credit; or evidence of loan conumitments sufficient to carry out the Project Improvements and the Additional Project, if applicable, by the transferee or assignee; and (2) Submission of letters of recommendation from reputable parties for whom the prospective transferee has undertaken a comparable development, stating that the proposed transferee or assignee possesses the competence and integrity to undertake the Project Improvements and the Additional Project, if applicable, or part thereof. -25— #3004159.03 (086027.149) (iii) Any proposed transferee, by instrument in writing reasonably acceptable to the Borough, shall, for itself and its successors and assigns, and expressly for the benefit of the Borough, have expressly assumed all of the relevant obligations of the Redeveloper under this Agreement and agreed to be subject to all the relevant conditions and restrictions to which the Redeveloper is subject. (iv) The Redeveloper and its transferees shall comply with such other reasonable conditions as the Borough may find necessary in order to achieve and safeguard the purposes of this Agreement, the Plans and the Redevelopment Plan. (b) The transfer rights granted pursuant to this Section 13.04 are personal to the Redeveloper and will not nun to any transferee so long as this Agreement is in effect. In no event will the Redeveloper be permitted to carry out more than one (1) transfer pursuant to this Section 13.04. (c) Any transfer of the Project Area or Project Improvements in violation of this Section 13.04 shall be mill and void ab initio. Such default shall entitle the Borough to seek all remedies available under the terns hereof, and those available pursuant to law or equity, including termination of this Redevelopment Agreement. hi the absence of specific written consent by the Borough, no such sale, transfer, conveyance or assignment or approval thereof by the Borough, shall be deemed to relieve the Redeveloper from any obligations under this Redevelopment Agreement. hi the event of any attempted transfer in violation of this Section 13_04, the Borough shall be entitled to the ex parte issuance of an injunction restraining such transfer, and the award of legal fees and related expenses of the Borough in connection with any such legal action. Upon tine recording of this Agreement in the Office of the Middlesex County Register, the provision affording such injunctive relief shall have the same force and effect as a Notice of Lis Pendens. (d) Notwithstanding anything to the contrary set forth herein, there shall be no prohibition on any Transfer of the Project Site or Project Improvements after a Certificate of Completion has been issued for the Project Site and no prohibition on any Transfer of the Additional Project Site or project improvements related thereto or interest in the Redeveloper after a Certification of Completion has been issued for the Additional Project Site. SECTION 13.05. Permitted Transfers (a) The Redeveloper, without violating tine provisions of Section 13.02 Section 13.03 or Section 13.04 hereof, may effect the following Transfers, to which the Borough hereby consents upon receipt of notice thereof, without the necessity of further action by the Borough ( "Permitted Transfers "): (i) security for, and only for, the purpose of obtaining the financing necessary to enable the Redeveloper to perform its obligations under this Redevelopment Agreement with respect to completing the Project Improvements and the Additional Project, if applicable, and any other purpose authorized by this Redevelopment Agreement; -26— #3004159.03 (086027.149) (ii) a mortgage or mortgages and other liens and encumbrances (including mechanic's liens) for the purposes of financing costs associated with the acquisition, development and construction of the Project Improvements and the Additional Project, if applicable; (iii) utility and other development easements; (iv) environmental covenants and restrictions imposed by a regulatory agency as a condition of any permit or approval; (v) transfers among partners of the Redeveloper and /or trustees for their benefit; (vi) any contract or agreement with respect to any of the foregoing exceptions. (vii) transfers among Affiliates of Redeveloper; (viii) transfers to any successor entity which purchases all of the assets, stock or interests of Redeveloper (and/or Redeveloper's parent corporation and/or Affiliates); (ix) transfers resulting from the merger, consolidation or reorganization of Redeveloper (and/or Redeveloper's parent corporation and/or Affiliates) with any other entity. SECTION 13.06. Notice of Permitted Transfers (a) With respect to any Permitted Transfers as set forth in Section 13.05(a)(1)-(vi) hereof, the Redeveloper shall provide to the Borough written notice at least thirty (30) days prior to such Permitted Transfer, including a description of the nature of such Permitted Transfer, and the name(s) and address(es) of the transferee and any parties, individuals and/or entities comprising such transferee. No such Permitted Transfer set forth in Section 13.05(a)(i) —(vi) hereof shall become effective until the Borough has reviewed the supporting documentation provided by the Redeveloper and approved such supporting documentation. In the event of a Permitted Transfer in accordance with Section 13.05(a)(i -vi) hereof the Redeveloper shall cause the transferee to execute such documentation as is reasonably requested by the Borough in order to assure that the transferee has assumed all of the Redeveloper's obligations under this Redevelopment Agreement (if the Redeveloper's right, title and interest in the Project Improvements or Additional Project is being transferred) or any portion thereof (if the Redeveloper's right, title and interest in a portion of the Project Improvements or Additional Project is being transferred). The Redeveloper shall exercise its reasonable efforts with respect to the provisions of any documentation relating to the Permitted Transfer as the Borough may reasonably request. (b) With respect to the Permitted Transfers set forth in Section 13.05(a)(vii) -(ix) hereof, Redeveloper shall provide the Borough with notice after such Permitted Transfer and provide the Borough with the evidence of the transfer. No consent, approval or action by the Borough is required for such Permitted Transfers. -27— #3004159.03 (086027.149) ARTICLE XIV INDEMNIFICATION; INSURANCE SECTION 14.01. Redeveloper Indemnification (a) The Redeveloper covenants and agrees, at its expense, to pay and to indemnify, protect, defend and hold the Borough Indemnified Parties harmless from and against all liability, losses, damages, demands, costs, claims, lawsuits, administrative proceedings, fines, penalties, and expenses (including reasonable attorneys' fees and court costs) resulting from the constriction of the Project Improvements or the Additional Project, including but not limited to the death of any person or any accident, injury, loss, and damage whatsoever to any person or to the property of any person which shall occur on or adjacent to the Project Area and which results, wholly or partially, from any negligence or willful misconduct of Redeveloper, its agents, servants, employees, or contractors, but excluding damage, liability, costs and expenses to the extent that same may result from gross negligence or willful misconduct of the Borough, its employees, representatives or agents. (b) Ili any situation in which a Borough Indemnified Party is entitled to receive and desires indemnification by the Redeveloper, the Borough Indemnified Party shall give prompt notice of such situation to the Redeveloper. Failure to give prompt notice to the Redeveloper shall not relieve the Redeveloper of any liability to indemnify the Borough Indemnified Party, unless such failure to give prompt notice materially impairs the Redeveloper's ability to defend such party. Upon receipt of such notice, the Redeveloper shall resist and defend any action or proceeding on behalf of the Borough Indemnified Party. All of the Borough Indemnified Parties shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of the indemnified party. The Redeveloper shall not be liable for any settlement of any such action effected without its consent. The Redeveloper shall have the right to settle any such action on terms it deems appropriate provided that a full release of the Borough Indemnified Party is obtained and no admission of liability by the Borough Indemnified Party is required. In the event the Borough refuses to provide a release of such action, and a final judgment is rendered against the Redeveloper, the Borough shall be responsible for the Redeveloper's counsel fees and costs incurred subsequent to the Borough's refusal to release the action and for that amount of the judgment which is in excess of the sum for which the Redeveloper would have otherwise settled the action. (c) The Redeveloper's indemnity provided under this Section 14.01 shall survive the termination of this Redevelopment Agreement. SECTION 14.02. Insurance Required (a) Prior to Commencement of Construction, the Redeveloper shall fiunish or shall cause to be furnished, to the Borough, certificates of commercial general liability insurance, insuring the Redeveloper and the Borough against losses, costs, liabilities, claims, causes of action and damages for bodily injury and property damage on all property in the Property or related to the construction thereon, in- the amount of at least Ten Million Dollars 03004159.03 (086027.149) g eneral liability and umbrella/exeess liaUilty i ($10,000,000.00) combined single limit coverage. Such coverage and limits may ce s enced b a combination of primary conmlercial g ro e rt damage, personal injury and other covered insurance. Such insuran to all bodily include l y property darria liability coverage. All suchpo ides shall be written to app1Y during the policy temp, shall be endorsed to add the primary and that loss, however occasioned, occurring Borough as an addition Uy the Borough vide elxcess insures c onlyl Elbe Redeveloper shall any insurance and l provided certificates of insurance evidencing such require any and all contractors and subcontractors to obtain and maintain msurauce m accordance with this Agreement and p insurance. (b) Builder's during I the to m of constr ction,suffici nt v protect (subject against loss or interests of any Holder), ercent 100 /o) of tine replacement cost (to current building damage resulting from fire and extended coverage, and vandalism, and malicious mischief on an All -Risk form equal to one hundred p materials couriect,ol code) of the Project Improvements, used as part l of the pemiancut con t a ction but excluding flhe ngs whether in transit or and foundations. ( The Redeev tl e Bo shall a s fur s R developerto b7r S1rm° ke's' eo nsatioh evidence satisfactory insurance as required by law, and employer's liability insurance with customary limits. B ion shall All in A insurance policies required by thus Sect - in obtained from insurance companies authorized in the State of New Jersey and rated ably acceptable to at least Best's Insurance Guide t is proposed by the Redeveloper and is reason or such lesser rated provider ' ovider tha r such ired hereunder shall be kept in force until a Certificate of the Borough. All insurance policies requ C is issue h shall remain hpeffectfmlaccordance will Section C c) o—, inereofn Section 14.02 herein which shall ( All insurance policies required he b this are pri n oryaand noncontributing it h any contaii language to be carri ed the effect that (a) Borough, (b) tine policies cannot be canceled Borough shall not d by the orou insurance that may es ritten notice to the Borough, and (c) changed except a ft er thirty sments. (30) s w days b liable for any p' ARTICLE XV MORTGAGE ORTFINANCING; AGE GRGHT TO CURE FAULT SECTION 15.01. M"_ t_ ¢ale Finan cing. ssor in ( Neither the Redi vvel e o any ally other e ansa t n creati ogtlal Y r mortgage or other thereof, shall engage in any -29– 83004159.03 (086027.149) or suffer any encumbrance or lien (other liens For encumbrance or lien upon the Project Area. or the Pror A than lie r a the Project Improven ezuts, agreement or operation of law, ercent of Project Costs, except as may be approved by the Borough (which govenmieutal impositions) to be made or attach to the roJ in excess of 90 p witlilieid) for the purpose of obtaining fiends in connection approval t be shall no unreasonably o> —tion with the consti'uctiorr of the Project Improvements; pr ovided, 110' that upon tile parcel o land longer apply with respect to the corresponduig 1 a Certificate of Completion for the Project Improvements or Additional Project, or any thereof, such prohibition shall no long th Borough n advance ter to u with r respec financing secured Pr e oj t and i m shall notify provements. Pr idvanc or to the issuance of a Certificate of Completion, the Redeye oiler, or its successor in interest, sha proposes to and, in arty event, the mortgage or other lien a th reof thermortgage thereunder, a "Holder ) hnprovements, or any part theref Redeveloper shall promptly if no tif y the Borough of any encumbrance or ion o the l Project 1 �•ea governmental impositions) that has been created on or attached to any POI the Redeveloper may voluntary act of th Redeveloper or othe"W'se, e upon e e notice of same. Notwithstanding the foregoing, or the Project Improvements whether , Y orate trust indenture involving obtaining kno�vledg genera core finance or create a mortgage in connection with a g without notice to or the consent assets of the Redeveloper or Verizon in the State of New Jersey by the Borough. change(s) or modifications) to th tern -Is ters of If the Holder reasonably requires any cooperate with the Holder and the this Redevelopment Agreement, the Borough shall reasona bly co °p or modification(s); provided and approving such proposed Chang O y alter Redeveloper in reviewing e or the Borough, as provided in this that any such proposed a tiors of tile1Redevelop shall not materially and adverse however, tits and oblig or modify the rig Redevelopment Agr eement. the Redeveloper, the Borough shall execute To the extent reasonably requested by (c) nested n required by any Holder (or any equity such other agree"" and/or documents (to the extent same are hi form and content reasonably be requested or document shall such agreement acceptable to the Borough) as U ay b ed , however, that any participant of the Redeveloper); p ---- not materially and adversely alter any of the rights or obligations of the Redeveloper or the Borough under this Redevelopment Agreement. SECTION 15.02. Notice of Default to the Redevelo er and Ri ht to Cure. notice or demand to the Redeveloper (a) Whenever the Borough shall Red veloper under this Redevelopment Agreement, deliver ally of such notice or demand; with respect to any a t tale a default h the Borough shall at the sam ha de s delivered r to t e the Bo - ong a written notice of the name and a copy provided that the Redevelop insofar as the rights of the Borough are address of such Holder. ht at its option withni ninety (90) days after the receipt of such notice Each such Holder shall ( or to commence to cure or concerned) have the rig applicable cure periods), to cure or remedy, (and the expiration of all app cured and to add true cost thereof to the debt remedy, any such default which is subject to being and the lien whiclu it holds. -30— #3004159.03 (086027.149) To the extent that any Holder is required to foreclose against any lien it has mil--11 (U) project Imp' a reements executed by the Redevelop er respect to the ,ovements or the Additional Project (as a result of a Redeveloper vea�t of Default or a default by the Redeveloper under any g' the Borough agrees to forebear from the amstrthe Redevelop i x oad e1 and its Project Lenders), Bement that it may have ag provided under this Redevelopment Agr' ,owever, that the Borough shall not be obligated to forebear fi om t1Z to permit such Holded, 1 assume the obligations of the Redeveloper under this Re eve op>ne:nt Agreement; nrovrde , - -- exercise of any remeddie lent r o fthe Borough) m o waiverofth f Borough'surightsnu der his su in the reasonable lu gn Redevelopment Agreement or a material and adverse effect of the Boroughs rig - its or performance obligations hereunder or any material increase in the Boroughs financial obligations hereunder. nr Comp letionletion bye, - -' SECTION 15.03. No ter` ^` "° -- the provisions of this (a ) A Holder shall n, no mauler be obligated m covenant e any other Redevelopment Agreement to construct or complete the Project Improvements, the Additional Project, or tog contained in this Redevelopment uarantee such construction or completion; nor shat any provisions be conshued so to obligate a Holder. Nothing Agreement shall be deemed to permit or authorize such Holder to undertake or continue the le of the Pro or p ject Improvemt the Holder's security, including ents or the Additionatl tile (b cons t r uction or comp iotec extent necessary to conserve " coushuction already made) without the Holder or lia todthe ha expres assumed the Redevel Borough satisfactory to the Borough. oper's obligations to the written agreement reasonably and the Additional Project by e secured by the Project Area, the Project (b) If a Holder forecloses its mortgag b deed A ffili a te ) of e project Improvements, or the Additional Project, y Improvements, or the Additional Project or takes title (in its nam the Holder its Affiliate shall the Project Area, Project Improvements, or the Additional foreclosure or sill" transaction (collectively a aForeclosure" > have the option to either (i) sell the Project Area, the Pro gh, which project, as applicable obl oossoflthe Redevelope der this Redevelopment Agr exeent in Person shall assume Applicable Law. In the nd / . or (ir)aernent accordance d with App 1 accordance with Applicable Law, a i obligations of the ment Agr urchaser is in compliance with this Redeveloper under this Redevro vded the Holder or the p event of a Foreclosure an i pursuant to the terms of Redevelopment Agreement' t of the oeom�dieslavailable t the Borough p gain the Holder or d p purchaser of such parcel any g the this Redevelopment Agreement available in c the l obl gationisloflthe Redeve le oper as the Foreclosure. The Holder, or the entity assuming agree to complete the Project parcel affected by suet, Foreclosure or sale, in that event must Iinproverrients and the Additional Project in the m and shall provided in this Redevelopment Agreement, but subject h threasonable rte qualifi ati ing such obligations of the c oi and financial respo i evidence ibility necessa y to to the Boroug assum satisfactory suh Holder, or other entity perform such obligation cos. Any the Project Improvem Certificates and the Additional Project shall be Redeveloper, prompleting entitled, upon written request made to the Borough, to ficates of Complet,on. Nothing in -31— #3004159.03 (086027.149) (b) To the extent that any Holder is required to foreclose against any lien it has with respect to the Project Improvements or the Additional Project (as a result of a Redeveloper Event of Default or a default by the Redeveloper under any agreements executed by the Redeveloper and its Project Lenders), the Borough agrees to forebear from the enforcement of any remedies provided under this Redevelopment Agreement that it may have against the Redeveloper in order to permit such Holder to assume the obligations of the Redeveloper under this Redevelopment Agreement; provided however that the Borough 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 Borough) in a waiver of the Borough's rights under this Redevelopment Agreement or a material and adverse effect on the Borough's rights or performance obligations hereunder or any material increase in the Borough's financial obligations hereunder. SECTION 15.03. No Guarantee of Construction or Completion by Holder (a) A Holder shall in no manner be obligated by the provisions of this Redevelopment Agreement to construct or complete the Project Improvements, the Additional Project, or to guarantee such construction or completion; nor shall any covenant or any other provisions be construed so to obligate a Holder. Nothing contained in this Redevelopment Agreement shall be deemed to permit or authorize such Holder to undertake or continue the construction or completion of the Project Improvements or the Additional Project (beyond the extent necessary to conserve or protect the Holder's security, including the improvements or constriction already made) without the Holder or Affiliate of Holder first having expressly assumed the Redeveloper's obligations to the Borough with respect to the Project Improvements and the Additional Project by written agreement reasonably satisfactory to the Borough. (b) If a Holder forecloses its mortgage secured by the Project Area, the Project Improvements, or the Additional Project or takes title (in its name or the name of an Affiliate) to the Project Area, the Project Improvements, or the Additional Project, by deed -in -lieu of foreclosure or similar transaction (collectively a "Foreclosure "), the Holder or its Affiliate shall have the option to either (i) sell the Project Area, the Project Improvements, or the Additional Project, as applicable, to a responsible Person reasonably acceptable to the Borough, which Person shall assume the obligations of the Redeveloper under this Redevelopment Agreement in accordance with Applicable Law, and/or (ii) itself, or its affiliate, assume the obligations of the Redeveloper under this Redevelopment Agreement in accordance with Applicable Law. In the event of a Foreclosure and provided the Holder or the purchaser is in compliance with this Redevelopment Agreement, the Borough shall not seek to enforce against the Holder or purchaser of such parcel any of the remedies available to the Borough pursuant to the terms of this Redevelopment Agreement available in correction with the events preceding the Foreclosure. The Holder, or the entity assuming the obligations of the Redeveloper as to the parcel affected by such Foreclosure or sale, in that event must agree to complete the Project Improvements and the Additional Project in the manner provided in this Redevelopment Agreement, but subject to reasonable extensions, and shall submit evidence reasonably satisfactory to the Borough that it has the qualifications and financial responsibility necessary to perform such obligations. Any such Holder, or other entity assuming such obligations of the Redeveloper, properly completing the Project Improvements and the Additional Project shall be entitled, upon written request made to the Borough, to Certificates of Completion. Nothing in -31- 43004159.03 (086027.149) this Redevelopment Agreement shall be construed or deemed to permit or to authorize any Holder, or such other entity assuming such obligations of the Redeveloper, 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, the Plans and the Redevelopment Plan. The Holder or such other entity that assumes the obligations of the Redeveloper shall be entitled to develop the Project Area, the Project hnprovements or the Additional Project in accordance herewith. SECTION 15.04. Borough's Option to Pay Mortgage Debt or Purchase Land In any case where, subsequent to an Event of Default by the Redeveloper under this Redevelopment Agreement and/or Foreclosure, the Holder: (a) has, but does not exercise, the option to construct or complete the Project hnprovements and the Additional Project, or to which it has obtained title, and such failure continues for a period of sixty (60) calendar days after the Holder has been notified or informed of the Event of Default; or (b) undertakes construction or completion of the Project Improvements or the Additional Project but does not complete such work within a reasonable period, and such default shall not have been cured within one hundred eighty (180) calendar days after written demand by the Borough to do so ((a) and (b) each constituting a "Holder Failure "); then the Borough shall have the option of paying to the Holder the amount_ of the mortgage debt and obtaining an assignment of the mortgage and the debt secured thereby, or, _ in the event ownership of the Project Improvements or the Additional Project, has vested in such Holder by way of foreclosure or action in lieu thereof, the Borough shall be entitled, at its option, to a conveyance to it of the Project Area, Project Improvements and Additional Project upon payment to such Holder of an amount equal to the sum of: (i) the mortgage debt at the time of foreclosure or action in lieu thereof (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (ii) all expenses with respect to the foreclosure, including reasonable attorney's fees and expenses; (iii) the net expense, if any (exclusive of general overhead), incurred by such Holder in and as a direct result of the subsequent management of the mortgaged property; (iv) the costs incurred by such Holder in making any the Project Improvements or the Additional Project; and (v) an amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage debt and such debt had continued in existence. Every mortgage instrument made prior to completion of the Project Improvements and the Additional Project shall provide for the foregoing. ARTICLE XVI ADDITIONAL TERMINATION RIGHTS SECTION 16.01. Additional Termination Rights of Borough This Redevelopment Agreement shall terminate upon notice by the Borough to the Redeveloper of its decision to so terminate, after any applicable cure periods as set forth in Article XVH hereof, if applicable, notwithstanding whether or not any other Event of Default by the Redeveloper has occurred, if: -32— 0004159.03 (086027.149) (a) On or before twelve (12) months from the Effective Date, the Redeveloper has not received the Governmental Approvals necessary to commence construction of the Project Improvements; (b) On or before twelve (12) months from the Effective Date, the Redeveloper has not commenced construction on the Project hnprovements; (c) On or before thirty -six (36) months fi•om the Effective Date, a final Certificate of Completion for the Project Improvements has not been issued; Nothing in this Section 16.01 shall prevent the Borough from declaring that a Redeveloper Event of Default by the Redeveloper hereunder has occurred nor from pursuing any of its other remedies hereunder. ARTICLE XVII EVENTS OF DEFAULT AND REMEDIES SECTION 17.01. Events of Default Any one or more of the following shall constitute an Event of Default hereunder (with none of the following to be construed as a limitation on any other): (a) Failure of the Redeveloper or the Borough to observe and perform any covenant, condition or agreement under this Redevelopment Agreement, and continuance of such failure for a period of thirty (30) days, after receipt by the defaulting party of written notice from the non - defaulting party specifying the nature of such failure and requesting that such failure be remedied; provided however if the failure is one which cannot be remedied within the thirty (30) days after such written notice has been given, it shall not be an Event of Default as long as the defaulting party is proceeding with due diligence, and in good faith, to remedy the same as soon as practicable but in no event later than on hundred eighty (180) days after such written notice. (b) (i) The Redeveloper shall have applied for or consented to the appointment of a custodian, receiver, trustee or liquidator of all or a substantial part of its assets; (ii) a custodian shall have been legally appointed with or without consent of the Redeveloper; (iii) the Redeveloper (A) has made a general assignment for the benefit of creditors, or (B) has filed a voluntary petition in bankruptcy or a petition or an answer seeking an arrangement with creditors or has taken advantage of any insolvency law; (iv) the Redeveloper has filed an answer admitting the material allegations of a petition in any bankruptcy or insolvency proceeding; or (v) the Redeveloper shall take any action for the purpose of effecting any of the foregoing; (vi) a petition in bankruptcy shall have been filed against the Redeveloper and shall not have been dismissed for a period of ninety (90) consecutive days; (vii) an order for relief shall have been entered with respect to or for the benefit of the Redeveloper under the Bankruptcy Code; (viii) an order, judgment or decree shall have been entered, without the application, approval or consent of the Redeveloper by any court of competent jurisdiction appointing a receiver, trustee, custodian or liquidator of the Redeveloper or a substantial part of its assets and such order, -33— #3004159.03 (086027.149) judgment or decree shall have continued unstated and in effect for any period of ninety (90) consecutive days. (c) The Redeveloper shall abandon or substantially suspend constriction work (unless such suspension arises out of an Uncontrollable Circumstance), and any such abandonment or suspension shall not be cured, ended, or remedied within ninety (90) days after written demand by the Borough to do so; provided however that if the default or violation is one which cannot be completely remedied within the ninety days after such written notice has been given, it shall not be an Event of Default as long as the Redeveloper is proceeding with due diligence, and in good faith, to remedy the same as soon as practicable but in no event later than one hundred twenty (120) days after such written notice. (d) The filing of a complaint in Foreclosure against the Redeveloper or the issuance of a deed in lieu of Foreclosure for any financing in connection with the Project. (e) The Redeveloper or its successor in interest shall fail to pay any real estate taxes or assessments on any real property or any part thereof owned by it in the Borough when due, or shall place thereon any encumbrance or lien unauthorized by this Redevelopment Agreement, or shall suffer any levy or attachment to be made, or any materialman's, mechanics' or construction lien, or any other unauthorized encumbrance or lien to attach and such real estate taxes or assessments shall not have been paid, or the encumbrance or lien removed or discharged or provision satisfactory to the Borough made for such payment, removal, or discharge, within sixty (60) days after written demand by the Borough to do so; provided the foregoing shall not constitute a default if Redeveloper diligently and in good faith contests the amount or validity of any of the foregoing by appropriate legal proceedings. SECTION 17.02. Uncontrollable Circumstance Performance by either party hereunder shall not be deemed to be in default where delays or failure to perform are the result of an Uncontrollable Circumstance 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; rop vided 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 tinder the teens of this Redevelopment Agreement. SECTION 17.03. Remedies Upon Events of Default by the Redeveloper If an Event of Default by the Redeveloper occurs, then the Borough may take whatever action at law or in equity as may appear necessary or desirable to enforce the performance or observance of any rights, remedies, obligations, agreements, or covenants of the Redeveloper, as applicable, under this Redevelopment Agreement, including the seeking of actual damages (including reasonable attorneys' fees and costs) but not consequential damages or loss of profits. Subject to any cure provisions afforded the Redeveloper hereunder, the Borough shall have the right, in its sole and absolute discretion, upon sixty (60) days' notice to the Redeveloper and any Holder, to terminate this Redevelopment Agreement and the Redeveloper's designation as the redeveloper of the Project Improvements. -34— #3004159.03 (086027.149) In the event that this Redevelopment Agreement is terminated by the Borough pursuant to this Sectio n 17_03, the Borough shall terminate the Redeveloper's designation as the redeveloper of the Project Area. Notwithstandurg anything contained in this Agreement to the contrary, nothing contained herein shall h preclude, exercise of the Borough's power gl of t ondem ation obtain accordance the Project Are g Redevelopment Law and the Eminent Domain Act if an Event of Default by the Redeveloper occurs or this Agreement shall be terminated for any reason whatsoever. SECTION 17.04. Remedie on E ve nts then t e D efault Redev op y take w hateaer action that an Event of D by the Borough Occurs at law or in equity as may appear necessary or desirable to enforce the performance or ghts, remedies, obligations, agreements, or covenants of the Borough, as observance of any ri applicable, under this Redevelopment Agreement, including the seeking of damages (including reasonable counsel fees and costs). SECTION 17.05. Specifi P e1f0r'manee /CO usecllent" I Damage If an Event of of Default occurs, or a party hereto threatens to take an action that will r esult shall r have the light and an Event of Default, the non - defaulting (or non - threatening) party remedy, without posting bond or other security, to have the p osi i or t being acknowledged ons l i to the Agreement specifically enforced by any court having equity jurisdiction, and agreed h e Redev Lope ally such and thatwhoaey damages breach may provide an adequate remedy Borough o' t thereto. No Party may recover consequential damages from the other Party with respect o an Event of Default under this Agreement. SECTION 17.06. Failureslay Except as otherwise expressly provided in h this any of its en ed es asrto ny shall n t ate delay s a waiver any default, or rof ally such lights or r 1e edie, or deprv may such necessaryrttorprotect, asserttor enforcertany such or any proceedings remedies. SECTION 17.07. Remedies Cumulative. No remedy conferred by any of the to and each and evrerRedevelopment ren remedy shall be cumulative ulative and slat very other re be in addition to -very The and given hereunder one noo erremedies existing not no t cons titute a equity b or ow ereafter waiver of the r light to Pursue he e l ec tion available remedies. In no event, however, shall a party be entitled to recover more than its actual damages. o f ns. ,, of an SECTION 17.08. Coutinuan tsOobhgati ns he thhis RedevelopmenttAgreemaent shall not relieve the defaulting party unless this Redevelopment Agreement is terminated as a result of such Event of Default, as an to the extent permitted hereunder. -35— 43004159.03 (086027.149) r emed y provided in this Article, that SECTION 17.09. Liti ration Co sts. In the event that a party to this Redevelopmen Agreement successfully pursues an action to enforce any reasonable p" party shall be entitled to payment by the other party of all reasonably costs and expenses incurred in connection with such action. SECTION 17.10 a . Miti p ti on . The parties shall act reasonably to mitigate any damages that may be incurred as a result of an Event of Default hereunder. ARTICLE XVIII MISCELLANEOUS SECTION edevelope shall hall be deemed given d emands f dispatched to the forth below Borough and the id, return receipt requested, or by a commercial by registered or certified mail, p ostage prepa r hacking capability and for which proof of delivery is overnight delivery service with packaging available• and oonma nicat o rs maybe eut the same manner to such other addresses as either demands party may from time to time designate by written notice. Copies of all notices, demands and comm�inications shall be sent as follows: If to the Borough: Borough of Carteret Municipal Building 61 Cooke Avenue Carteret, New Jersey 07008 Borough Clerk and Construction Code Officia Attn: Mayor, Director of Law, with copies to Matthew C. Karrenberg, Esq. DeCotiis, FitzPatrick, Cole & Wisler, LLP 500 Frank W. Burr Blvd. Teaneck, New Jersey 07666 If to the Redeveloper: Michael T. Swengros Verizon Business 2400 North Glenville Drive Richardson, Texas 75082 with copies to: -36— #7004159.03 (086027.149) Steven D. Cohen, Esq. Verizon Legal Department VC33E214 One Verizon Way Basking Ridge, New Jersey 07920 Laurie E. Meyers, Esq. Wilerrtz, Goldman & Spitzer, P.A. 90 Woodbridge Center Drive Woodbridge, New Jersey 07095 SECTION 18.02. Conflict of Interest. No member, official or employee of the Borough shall have any direct or indirect interest in this Redevelopment Agreement, nor participate in any decision relating to this Redevelopment Agreement which is prohibited by law. SECTION 18.03. No Consideration For Redevelopme Agreement. The Redeveloper warrants it has not paid or given, and will not pay or give, any thud pe 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, planners, financial consultants and attorneys. The Redeveloper further warrants it has not paid or incurred any obligation to pay any officer or official of the Borough, any money or other consideration for or in connection with this Redevelopment Agreement. SECTION 18.04. Lender Changes If the Redeveloper's lender requires a change in the terms of this Redevelopment Agreement, the Borough shall reasonably cooperate with the Redeveloper in approving such change, so long as such change, if any, does not modify or change the substantial rights or obligations of the Parties as set forth in this Redevelopment Agreement. In addition, the Borough agrees to enter into such agreements as the Redeveloper's lender (or its equity participants) may reasonably require provided that such agreement shall not be inconsistent with the terms of this Redevelopment Agreement (i.e. shall not increase the Borough's responsibilities or decrease its benefits hereunder). SECTION 18.05. Non- Liability of Officials and Employees of the Borough. No member, official, employee or consultant of the Borough shall be personally liable to the Redeveloper, or any successor in interest, in the event of any default or breach by the Borough, or for any amount which may become due to the Redeveloper or its successor, or on any obligation under the terms of this Redevelopment Agreement. SECTION 18.06. Non Liability of Officials and Employee of Redevel No member, officer, shareholder, director, partner or employee of the Redeveloper shall be personally liable to the Borough, or any successor in interest, in the event of any default or breach by the Redeveloper or for any amount which may become due to the Borough, or their successors, on any obligation under the terns of this Redevelopment Agreement unless such liability is separately assumed under a separate document. -37— #3004159.03 (086027.149) IN WITNESS WHEREOF, the parties hereto have caused this Redevelopment Agreement to be executed, all as of the date first above written. VERIZON BUSINESS NETWORK SERVICES INC. By: ATTEST: BOROUGH OF CARTERET Un Kathleen M. Barney, Borough Clerk Daniel J. Reiman, Mayor [SEAL] -40— #3004159.03 (086027.149) STATE OF ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2008, by VERIZON BUSINESS NETWORK SERVICES INC., a Delaware corporation (the "Company "), by its , on behalf of the Company. Notary Public Conunission Expiration: -41— #3004159.03 (086027.149) STATE OF NEW JERSEY ) COUNTY OF MIDDLESEX) The foregoing instrument was acknowledged before me this _ day of 2008, by the Borough of Carteret (the `Borough "), a municipal corporation of the State of New Jersey, by Daniel J. Reiman, its Mayor, on behalf of the Borough. Robert J. Bergen, Esq. Attorney at Law State of New Jersey -42— #3004159.03 (086027.149)