HomeMy Public PortalAboutCarteret Landing Executed AgreementREDEVELOPMENT AGREEMENT
BY AND BETWEEN
BOROUGH OF CARTERET, NEW JERSEY
AND
CARTERET LANDING, LLC
Date: May Zr , 2004
TABLE OF CONTENTS
PREAMBLE
ARTICLE 1 DEFINITIONS AND INTERPRETATIONS ......................................... ..............................3
SECTION1.1 DEFINITIONS . ........................................................................................ ..............................3
ARTICLE 2 IMPLEMENTATION OF PROJECT .................................................... .............................10
SECTION 2.1 IMPLEMENTATION OF PROJECT ........................................................... ...............................10
SECTION 2.2 PHASES OF PROJECT . ............................................................................ .............................10
20
SECTION 2.3 PHASE III OPT ION .................................................................................. .............................10
21
SECTION2.4 PROJECT SCHEDULE . ............................................................................ .............................11
25
SECTION 2.5 COMMENCEMENT OF CONSTRUCTION ................................................ ...............................12
SECTION 2.6 GOVERNMENTAL APPROVALS . ........................................................... ...............................12
SECTION 2.7 GENERAL DEVELOPMENT PLAN; PROJECI' SCHEDULE; AND PRELIMINARY AND FINAL SITE
PLANS ............................................................................. ............................... _ ...............12
SECTION 2.8 EXISTENCE OF UTILITIES . ................................................................... ...............................14
SECTION 2.9 INFRASTRUCTURE IMPROVEMENTS AND PUBLIC IMPROVEMENTS . ..... ........................14
SECTION 2.10 DEDICATION OF PUBLIC IMPROVEMENTS . ........................................ ...............................15
SECTION 2.11 CONVEYANCE OF NON - DEDICATED PUBLIC IMPROVEMENTS . .......... ...............................15
SECTION 2.12 ENVIRONMENTAL AND GEOTECHNICAL DUE DILIGENCE AND OBLIGATIONS ...................15
SECTION 2.13 TRAFFIC IMPACT STUDY . ................................................................... .............................18
SECTION 2.14 CONDITION OF SITE ............................................................................ .............................18
SECTION 2.15 NEIGHBORHOOD IMPACTS . ............................................................... ...............................18
SECTION2.16 TRAFFIC ............................................................................................. .............................18
SECTION 2.17 CERTIFICATIONS ................................................................................ ...............................18
SECTION 2.18 CERTIFICATES OF OCCUPANCY AND CERTIFICATES OF COMPLETION ...............................18
SECTION 2.19 PROPOSED COMPLETION DATES .......................................................... ...............................19
SECTION 2.20 PROHIBITION AGAINST SUSPENSION, DISCONTINUANCE OR TERMINATION . ...................19
SECTION 2.21 RESTORATION OF PROJECT IMPROVEMENTS . .................................... ...............................20
SECTION2.22 COOPERATION . ................................................................................... .............................20
SECTION2.23 TERM . ................................................................................................ .............................20
ARTICLE 3 GENERAL REPRESENTATIONS AND WARRANTIES .................. .............................20
23
SECTION 3.1 REPRESENTATIONS AND WARRANTIES BY REDEVELOPER ................... ...............................20
SECTION 3.2 REPRESENTATIONS AND WARRANTIES BY BOROUGH .......................... ...............................21
ARTICLE 4 ACKNOWLEDGMENT OF RECEIPT OF COLLATERAL DOCUMENTS ...............22
25
SECTION 4.1 DELIVERY OF COLLATERAL DOCUMENTS . ......................................... ...............................22
SECTION 4.2 DOCUMENTS DELIVERED BY REDEVELOPER ........................................ ...............................22
SECTION 4.3 DOCUMENTS DELIVERED BY BOROUGH ............................................... ...............................22
ARTICLE 5 REDEVELOPER COVENANTS; DECLARATION OF COVENANTS AND
RESTRICTIONS............................................................................................................ .............................23
SECTION 5.1 REDEVELOPER COVENANTS . .............................................................. ...............................23
SECTION 5.2 DECLARATION OF COVENANTS AND RESTRI CTIONS ............................ ...............................25
SECTION 5.3 EFFECT AND DURATION OF REDEVELOPER COVENANTS ....................... .............................25
SECTION 5.4 ENFORCEMENT BY BOROUGI I ............................................................... ...............................25
ARTICLE 6 ASSEMBLAGE OF PROPERTY ........................................................... .............................26
SECTION 6.1 PRELIMINARY REAL PROPERTY APPRAISAL REVIEW . ........................ ............................... 26
SECTION 6.2 REDEVELOPERS ACQUIST'FION RESPONSIBILITY ............ .......................................... ............... 26
SECTION 63 PROPERTY NOTICE_. ................................................................................27
SECTION 6.4 CONDEMNATION PROCEDURES ............................................................27
SECTION 6.5 CONDEMNATION COSTS . ....................................................................29
SECTION 6.6 CONDEMNATION FUNDS . ....................................................................29
SECTION 6.7 CONDEMNATION OF EASEMENTS . ......................................................31
SECTION 6.8 NO WARRANTY OF SUITABILITY .........................................................31
SECTION 6.9 RELOCATION ASSISTANCE ...................................................................31
SECTION 6.10 TAX ABATEMENTS AND TAX ASSESSMENTS ......................................31
ARTICLE 7 PROJECT OVERSIGHT
SECTION 7.1 PROGRESS MEETINGS ..................................................................... .............................32
SECTION 7.2 PROGRESS REPORTS . ........................................................................... .............................32
SECTION 7.3 ACCESS TO PROJECT PREMISES . ......................................................... ............................... 32
ARTICLE 8 PERMITTED TRANSFERS
SECTION 8.1. PERMITTED TRANSFERS . ................................................................... ............................... 33
SECTION 8.2 NOTICE OF PERMITTED TRANSFERS . .................................................. ............................... 33
SECTION 8.3 TRANSFERS IN VIOLATION OF THIS AGREEMENT. .............................. ............................... 33
ARTICLE 9 REDEVELOPER'S FINANCIAL COMMITMENTS TO THE PROJECT;
PAYMENTSTO BOROUGH ................................................................... ...............................
SECTION 9.1 REDEVELOPER'S FINANCIAL COMMITMENT . ............
SECTION 9.2 FINANCING AND EQUITY CAPITAL . ..........................
SECTION 9.3 GOVERNMENTAL APPROVAL FEES . ........................
SECTION 9.4 PROGRESS PAYMENTS TO BOROUGH .........................
SECTION 9.5 PROJECT COSTS ......................... ...............................
SECTION 9.6 BOROUGH COSTS . ..................... ...............................
SECTION 9.7 PAYMENT OF BOROUGH COSTS .. ...............................
SECTION 9.8 GOVERNMENTAL PERMIT FEES. ...............................
SECTION 9.9 IMPACT FES . .............................. ...............................
ARTICLE 10 INDEMNIFICATION; INSURANCE
SECTION 10.1 INDEMNIFICA' HON ................. ...............................
SECTION 10.2 SURVIVAL OF INDEMNITY . ... ...............................
SECTION 10.3 INSURANCE REQUIREMENTS .. ...............................
34
38
39
39
ARTICLE I I EVENTS OF DEFAULT AND REMEDIES ....................................... .............................4u
SECTION 11.1 EVEN ' FSOFDEFAULI ............................................................................. .............................40
47
SECTION 11.2 REMEDIES UPON EVENT OF DEFAULT PRIOR TO REDEVELOPER'S ACQUISITION OF
PROJECTPREMISES ..................................................................................................... ...............................43
SECTION 11.3 REMEDIES UPON EVENTS OF DEFAULT OR TERMINATION AFTER COMMENCEMENT OF
PROPERTY ACQUISITION BY REDEVELOPER ................................................................ ...............................44
SECTION 11.4 TOLLING EVENTS; EVENT OF FORCE MAJEURE .................................... ...............................46
SECTION 11.5 NO WAIVER OF RIGI ITS AND REMEDIES BY DELAY ............................ ...............................46
SECTION 11.6 RIGHTS AND REMEDIES CUMULATIVE . .............................................. ...............................46
ARTICLE 12 MORTGAGE FINANCING; RIGHTS OF MORTGAGEE .............. .............................47
SECTION 12.1 MORTGAGE FINANCING ....................................................................... .............................
SECTION 12.2 NOTICE OF DEFAULT TO REDEVELOPER AND RIGHT TO CURE . ........ ...............................47
SECTION 12.3 GUARANTEE OF CONSTRUCTION OR COMPLETION . ............................ .............................48
SECTION12.4 FORECLOSURE .................................................................................... .............................48
SECTION 12.5 BOROUGH'S OPTION TO PAY MORTGAGE DEBT OR PURCHASE LAND . .............................48
ARTICLE 13 MISCE
SECTION13.1 NOTICES .............................................................................................. .............................49
52
SECTION 13.2 NON - LIABILITY OF OFFICIALS AND EMPLOYEES OF BOROUGH ........ ...............................51
SECTION 13.3 NON - LIABILITY OF OFFICIALS AND EMPLOYEES OF REDEVELOPER . ...............................51
SECTION 13.4 ESTOPPEL CERTIFICATES, ................................................................. ...............................51
SECTION 13.5 LENDER CHANGES . ............................................................................ .............................51
53
SECTION 13.6 NO BROKERAGE COMMISSIONS . ...................................................... ...............................51
SECTION 13.7 PROVISIONS NOT MERGED WITH DEEDS . ........................................ ...............................52
SECTION 13.8 NO CONSIDERATION FOR REDEVELOPMENT AGREEMENT . .............. ...............................52
SECTION 13.9 SUCCESSORS AND ASSIGNS . ............................................................. ...............................52
SECTION 13.10 EXHIBITS INCORPORATED . .............................................................52
SECTION 13.11 TITLES OF ARTICLES AND SECTIONS ................................................52
SECTION 13.12 SEVERABILITY ..................................................................................52
SECTION 13.13 ENFORCEMENT BY BOROUGH . ........................................................52
SECTION 13.14 MODIFICATION OF AGREEMENT . ....................................................53
SECTION 13.15 ExEcur1ON OF COLN"FERPART . ........................................................53
SECTION 13.16 DRAFTING AMBIGUFIIES; IN'I "ERPRETAT ION ..................................... ...............................53
SECTION 13.17 TIME PERIOD FOR NOTICES . ........................................................... ...............................53
SECTION 13.18 WAIVERS AND AMENDMENTS M WRITING . .............. :...........................................53
SECTION 13.19 CONFLICT OF INTEREST ................................................................... .............................53
PROJECT DESCRIPTION
SECTION 13.20 GOVERNING LAW ............................................................................. .............................53
PUBLIC IMPROVEMENTS
SECTION 13.21 WITHHOLDING OF APPROVALS . .....................................................................................53
SECTION 13.22 RECITALS INCORPORATED; DEFINITIONS INCORPORATED ............... ...............................53
EXHIBITS
EXHIBIT A CHROME WATERFRONT REDEVELOPMENT AREA
EXHIBIT B CHROME WATERFRONT REDEVELOPMENT PLAN
EXHIBIT C PROJECT PREMISES
EXHIBIT D PROJECT DESCRIPTION
EXHIBIT E PUBLIC IMPROVEMENTS
EXHIBIT F SUMMARY OF BUSINESS TERMS FOR LONG -TERM TAX EXEMPTION
PURSUANT TO N.J.S.A. 40A:20 -1 ET SEQ.
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This REDEVELOPMENT AGREEMENT ( " Redevelopment Agreement "),
dated as of 2004, by and between the BOROUGH OF CARTERET, NEW
JERSEY (` Borough "), a municipal corporation of the State of New Jersey with offices at
61 Cooke Avenue, Carteret, New Jersey 07008, and CARTERET LANDING, LLC
Redeveloper "), a New Jersey Limited Liability Company, with offices located at 90
Woodbridge Center Drive, Suite 60, Woodbridge, New Jersey 07095.
WITNESSETH
WHEREAS, the Local Redevelopment and Housing Law, N.J.S.A 40A:12A -1,
et seg., as amended and supplemented (hereinafter referred to as the " Redevelopment
Law "), provides a process for municipalities to participate in the redevelopment and
improvement of parcel(s) of property designated as "areas in need of redevelopment ";
and
WHEREAS, in order to stimulate redevelopment, the Borough Council
hereinafter referred to as the "Governing Body ") by Resolution designated certain
parcels of property within the Borough as "an area in need of redevelopment ", identified
as the Chrome Waterfront Redevelopment Area in accordance with the Redevelopment
Law (hereinafter referred to as the " Redevelopment Area "); and
WHEREAS, the Redevelopment Area consists of the following parcels of real
property: Tax Block 4 Lots 1, 2 (C.O. 100, C.O. 200, C.O. 300, and C.O. 400), 3 and 4;
Tax Block 5.1 Lots 1, 1.02, 1.03, 2 and 6; Tax Block 5.02 Lots 1.01, 1.02, 1.03 and 2.1;
Tax Block 6.1. Lot 1; Tax Block 6.2 Lot 12 and various parcels within Tax Block 500
and any and all Improvements located thereupon and said Redevelopment Area is further
defined at Exhibit A attached and annexed hereto; and
WHEREAS, on February 20, 2003 the Borough Council by ordinance adopted
the Chrome Waterfront Redevelopment Plan (hereinafter referred to as the
Redevelopment Plan "), a copy of which is attached hereto as Exhibit B; and which sets
forth, inter alia, the plan for the redevelopment of the Redevelopment Area and a listing
of the goals and objectives to be achieved through the Redevelopment Plan; and
WHEREAS, Redeveloper desires to redevelop a portion of the Redevelopment
Area in accordance with the Redevelopment Plan and those parcels of property are
identified as Tax Block 4 Lots 1 and 2 (C.O. 100; C.O. 200; C.O. 300 and C.O. 400) and
Tax Block 5.02 Lots 1.01, 1.02, 1.03 and 2.01 upon the official Tax Maps of the Borough
of Carteret (hereinafter referred to as the " Project Premises "); and
WHEREAS, in response to a Request for Proposals ( "RFP "), published by the
Borough on February 21, 2003, the Redeveloper submitted a proposed plan for
redevelopment consisting of the construction of residential units that will be made
available on a for sale and for rental basis; a substantial amount of office space; large
scale and small scale retail space; and publicly accessible amenities, open spaces and
recreational areas, the development and construction of which shall occur in two (2)
phases and may include development in an optional third phase; and
WHEREAS, after reviewing the several responses received, the Borough
determined that the proposal submitted by the Redeveloper is the most conducive to
achieve the goals and objectives of the Redevelopment Plan and on that basis
commenced negotiations with the Redeveloper; and
WHEREAS, the Borough by duly adopted Resolution of its Governing Body had
designated the Redeveloper to serve as redeveloper of portions of the Redevelopment
Area; and
WHEREAS, specifically, the Redeveloper has received designation to serve as
the redeveloper for Tax Block 4 Lots 1 and Lot 2 (C.O. 100; C.O. 200; C.O. 300 and
C.O. 400) and Tax Block 5.02 Lot 1.01, 1.02, 1.03 and 2.01 containing approximately
one hundred twelve (112) acres and pursuant to the terms and conditions of this
Agreement some or all of these parcels of property will constitute the Project Premises
and the Project Premises is further defined and described at Exhibit C attached and
annexed hereto; and
WHEREAS, all of the parcels of property located within the area of designation
and identified above are presently owned by various third parties who are unrelated to the
Redeveloper and these parcels are located within the Redevelopment Area and are
designated within the Redevelopment Plan as "sites to be acquired" by either the
Redeveloper or by the Borough as set forth elsewhere in this Agreement for the purposes
of redevelopment; and
WHEREAS, upon acceptance of the valuations for the Project Premises as
provided for in this Agreement, the Redeveloper shall exercise its best efforts to acquire
each parcel of property privately and the Borough, in the event of Redeveloper's inability
to so do, shall use its powers of eminent domain to acquire the relevant parcels; and
WHEREAS, the Borough and the Redeveloper have engaged in extensive
negotiations and the Borough has determined that in furtherance of the Borough's goals
and objectives to implement the redevelopment contemplated in the Redevelopment Plan,
it is in the Borough's best interests to enter into this Redevelopment Agreement with the
Redeveloper for the development and construction of the redevelopment project; and
WHEREAS, the Redeveloper acknowledges and agrees that all uses to which the
Project Premises may be devoted are controlled by the Redevelopment Plan and this
Agreement, and that under no circumstances shall the Redeveloper undertake any
construction on or development of the Project Premises unless it is in accordance with the
Redevelopment Plan and this Agreement; and
WHEREAS, the Borough and the Redeveloper desire to enter into this
Agreement for the purpose of setting forth in greater detail their respective undertakings,
2
rights and obligations in connection with the development and construction of the
Project, all in accordance with the Redevelopment Plan, applicable law and the terms and
conditions of this Agreement hereinafter set forth.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the
Borough and the Redeveloper, the parties hereto each binding itself, its successors and
assigns as provided for herein and for the benefit of the parties hereto and general public,
and, further to implement the purposes of the Redevelopment Law and the
Redevelopment Plan, the Borough and the Redeveloper agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions Except as expressly provided herein to the contrary,
all capitalized terms used in this Redevelopment Agreement and its Exhibits shall have
the following meanings:
Affiliate " means with respect to any Person, any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common control with,
such Person. For purposes of this definition, the term "control" (including the correlative
meanings of the terms "controlled by" and "under common control with "), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of such Person, whether through
the ownership of voting securities or by contract or otherwise.
Agreement " means this Redevelopment Agreement.
Apartment Unit means a room or set of rooms that is leased for use as a
dwelling.
Borough " means the Borough of Carteret, County of Middlesex and State of
New Jersey, a municipal corporation of the State of New Jersey.
Borough Cost(s) shall have the meaning set forth in Section 9.6 of this
Agreement.
Borough Indemnified Parties means the Borough and its officers, agents,
employees, contractors, and consultants.
Certificate of Completion means a written certificate issued by the Borough
in accordance with Section 2.18 of this Agreement.
Certificate " shall have the meaning set forth in Section 2.17 hereof.
3
Certificate of Occupancy Shall mean the certificate provided for at N.J.S.A.
52:27D -133 indicating that the relevant construction has been completed in accordance
with the construction permit, the State of New Jersey Uniform Construction Code and
any other ordinance or regulation implementing the State of New Jersey Uniform
Construction Code.
Chrome Waterfront Redevelopment Area (or Redevelopment Area) shall
mean the redevelopment area within which the parcels of property for which Redeveloper
received designation are located and such parcels of property are more specifically
delineated in the Redevelopment Plan that is attached hereto as Exhibit B.
Commence. Construction (or " Commencement of Construction ") means the
undertaking by Redeveloper of any actual physical construction of any new structures
included in the Project Improvements, including any and all site preparation, utilities
improvements, geotechnical engineering procedures and environmental mitigation,
remediation or clean -up activities.
Condemnation Appraisal" shall mean the real property appraisal performed by
a licensed real property appraiser on behalf of the Borough and performed in response to
and with respect to all parcels of property identified in the Property Notice as this term is
used in Section 6.4, hereof.
Condemnation Costs shall have the meaning set forth Section 6.5, hereof.
Condemnation Funds shall have the meaning set forth Section 6.6, hereof.
Control " (including the correlative meanings of the terms "controlled by" and
under common control with "), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the
management policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
Declaration of Covenants and Restrictions is defined in Section 5.2 hereof.
Easement Property is defined in Section 6.7 hereof.
Effective Date means the date this Agreement is last executed by the
authorized representative of the Borough.
Eminent Domain Act means the New Jersey statute codified at N.J.S.A. 20:3-
1 et seq ., as amended and supplemented.
Environmental Due Diligence shall mean such soils analyses, site
investigations and /or other environmental evaluations commonly utilized in order to
determine soil conditions, subsurface conditions and the presence of any environmental
contaminants or other hazardous materials, wastes or substances.
Environmental Laws means any present or future applicable federal, state or
4
local law, rule, regulation, order or other requirement dealing with or related to
environmental protection and/or human health and safety.
Financial Institution shall mean a bank, savings bank, savings and loan
association, mortgage lender, insurance company, pension fund, real estate investment
trust, investment bank or similarly recognized reputable source of construction or
permanent financing for the Project or any phase or component thereof, chartered under
the laws of the United States of America and /or any State, thereof.
Force Maicure "(also referred to as an "Event of Force Maieure") As used
throughout this Agreement this term shall apply to all time limitations and other
obligations and shall mean any acts of God, fire, volcano, earthquake, hurricane, blizzard,
infectious disease, technological disaster, catastrophe, large scale infestation of any type,
tremors, flood, explosion, release of nuclear radiation, release of biotoxic or of
biochemical agent(s), the elements, war, blockade, riots, mob violence or civil
disturbance, any act or acts of terrorism or terroristic threat, an inability to procure goods
or services or a general shortage of labor, equipment, facilities, energy, materials or
supplies in the open market, failure of transportation, strikes, walkouts, actions of labor
unions, governmentally imposed moratoriums, Court orders, laws, rules, regulations or
other orders of governmental or public agencies, bodies and authorities or any other
similar cause not within the reasonable control of the Redeveloper including legal
inability to comply resulting from a change of law including municipal laws regulating
land use and construction, any legal requirements under any applicable environmental
laws, as well as all known and unknown federal Environmental Protection Agency (EPA)
and State of New Jersey Department of Environmental Protection (N.J.D.E.P.)
clearances, approvals or permits typical of the development process, any economic
conditions which adversely affect the real estate market or which may affect the
Redevelopment Area and the individual Phases of this Project, and any unreasonable
delays in the Redeveloper's receipt of any necessary Governmental Approvals. In the
event of an Event of Force Majeure based upon any adverse economic conditions of the
real estate market as it may affect this redevelopment project, the Borough may request
of the Redeveloper an independent market study in a form reasonably acceptable to the
Borough.
Foreclosure " means that event in which a Holder forecloses its mortgage
secured by the Project Premises, or any part thereof, or takes title to the Project Premises,
or any part thereof, by deed -in -lieu of foreclosure or similar transaction and as defined in
Section 12.4 hereof.
General Development Plan shall mean a plan depicting the number of
dwelling units, the amount of non - residential floor space, the residential density, and the
non - residential floor area ratio for each phase of the overall project and a schedule
identifying the timing and phasing of the overall redevelopment project and any other
aspect of the project required or requested pursuant to N.J.S.A. 40:55D -45.2 or by duly
adopted ordinance of the Borough.
Governmental Application(s) shall mean any and all submissions, supporting
L
documents, reports or other proofs transmitted to any state, federal or local governmental
office, agency, authority, department, officer or agent for the purpose of obtaining
authorization or approval of any aspect of the Project.
Governmental Approval(s) means all necessary reviews, consents, opinions,
permits or other approvals of any kind legally required by any federal, state or local
Governmental Body or quasi - governmental entity having jurisdiction over any aspect of
the development or construction of the Project.
Governmental Body means any federal, state, county legislative or executive
office or local agency, department, commission, authority, court, or tribunal and any
successor thereto, exercising executive, legislative, judicial, advisory or administrative
functions of or pertaining to government, including, without limitation, the Borough, the
County of Middlesex, the State of New Jersey and the United States of America.
Governing Body means the Borough of Carteret Borough Council.
Hazardous Substance 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, rule, regulation, ordinance or order.
Holder " is defined in Section 12.1 hereof.
Holder Failure shall have the meaning set forth in Section 12.5 hereof.
Improvements (also referred to as "Project")' shall mean the development
and phased construction of a series of separate mixed use structures that shall contain
residential townhouses; age restricted and non -age restricted rental apartment units; large
and small -scale office space; a variety of retail space venues; public amenities and public
access spaces and other public open spaces. This term is more particularly described in
Exhibit D — Project Description attached hereto and shall also include all other structures
constructed on or installed upon the Project Premises in accordance with the Construction
Plans, including all facilities and amenities shown in such Construction Plans and the
Final Site Plan of each phase of development approved by the the Borough of Carteret
Planning Board. As used in this Agreement the term Improvements shall also include all
facilities, amenities, on and off street parking, landscaping and fencing and enhancements
required to be made to the Project Premises and to the main thoroughfare streets which
shall be constructed and thereafter dedicated to the Borough and the internal roadways
and access points which shall remain vested in the Redeveloper or its successor in
interest. All Improvements constructed shall be in substantial compliance with the
Redevelopment Plan.
Infrastructure Improvements shall mean any improvement or utility
necessitated, associated with, desired or required by the implementation of the Project,
which is located on or off the Project Premises, including but not limited to electric
power transmission lines, sewer transmission conduits or pipes, water lines or pipes,
storm sewers, telephone transmission lines, television cable lines and other utilities, as
further described in Exhibit D — Project Description attached hereto, and specifically
ko
excluding the principal buildings and structures defined herein as "Improvements"
Interim Cost Agreement means the Agreement entered into by and between
the Borough and the Redeveloper on August 26, 2003, whereby the Borough's costs
incurred in the review of certain supplemental information provided and to be provided
by the Redeveloper shall be paid by the Redeveloper and in addition thereto, the
obligation that the Borough retain the services of a real property appraiser to perform
preliminary real property appraisals upon each parcel of property contained in the Project
Premises. Upon the Effective Date of this Agreement, the Interim Cost Agreement cease
to be operative and the terms and obligations contained therein shall be subsumed by the
terms contained herein, taking into account the payment to the Borough by the
Redeveloper in the amount of Thirty -Five Thousand ($35,000) Dollars pursuant to the
terms Interim Cost Agreement.
Legal Requirements means all laws, statutes, codes, ordinances, orders,
regulations and requirements of any Governmental Body, now or hereafter in effect, and,
in each case, as amended from time to time.
Offer Price shall mean the amount to be offered for the purchase or
conveyance of each parcel of property identified in the Redeveloper's Property Notice
pursuant to Section 6.3, hereof which amount shall have been established by the
Borough's Condemnation Appraisal.
Opt -Out Date is defined in Section 2.3 hereof.
Option Extension Fee is defined in Section 2.3 hereof.
Permitted Exceptions is defined in Section 6.4 hereof.
Permitted Transfers is defined in Section 8.1 hereof.
Person " means any individual, sole proprietorship, corporation, partnership,
joint venture, limited liability company or corporation, urban renewal entity, trust,
unincorporated association, institution, public or Governmental Body, or any other entity.
Phase " or " Phases " means the three (3) proposed phases (Phases 1, Il, and III)
in which the Project will be developed, taking into account the Redeveloper's option to
proceed with the development and construction ascribed to the Phase III component of
the overall project.
Borough Planning Board (or "Planning Board ") means the Planning Board
of the Borough of Carteret and any successors thereto.
Preliminary Site Plan shall mean a plan depicting those aspects of the project
required pursuant to the Borough's site plan ordinance and pursuant to N.J.S.A. 40:55D-
7.
Progress Report is defined in Section 7.2 hereof.
7
Project" (also referred to as "Improvements ") shall mean the development
and phased construction of a series of separate mixed use structures that shall contain
residential townhouses; age restricted and non -age restricted rental apartment units; large
and small -scale office space; a variety of retail space venues; public amenities and public
access space and other public open spaces. This term is more particularly described at
Exhibit D— Project Description which is attached hereto and shall also include all other
structures constructed on or installed upon the Project Premises in accordance with the
Construction Plans, including all facilities and amenities shown in such Construction
Plans and the Final Site Plan approved by the Borough of Carteret Planning Board. As
used in this Agreement the term Improvements shall also include all facilities, amenities,
on and off street parking, landscaping and fencing and enhancements required to be made
to the Project Premises and to the main thoroughfare streets which shall be constructed
and thereafter dedicated to the Borough and the internal roadways and access points
which shall remain vested in the Redeveloper or its successor in interest.
Project Agreement means any agreement to which Redeveloper is a party
relating to the Project and/or the leasing /sale /operation of the Improvements.
Project Premises shall mean those parcels of property specifically identified
in Exhibit C, attached hereto and contained with the designation of the Redeveloper.
Project Schedule shall mean the list of those material steps involved in the
overall project proposed completion dates for each such material step and those
Governmental Approvals known by the Redeveloper to be necessary for the
commencement and /or completion of this Project, which document shall be submitted to
the Borough for review and consent pursuant to Section 2.7, hereof.
Project Team is defined in Section 4.2 hereof.
Property Notice is defined in Section 6.3 hereof.
Property Owners Association is defined in Section 2.11 hereof.
Redeveloper " shall mean the Carteret Landing, L.L.C., 90 Woodbridge Center
Drive, Suite 60, Township of Woodbridge, County of Middlesex and State of New Jersey
07095, a Limited Liability Company formed pursuant to the Laws of the State of New
Jersey, or any permitted assignee or Transferee obtaining such interest in the Project
Premises, Improvements and this Agreement in accordance with the provisions of this
Agreement.
Redeveloper Covenants is defined in Section 5.1 hereof.
Redeveloper Fault means any breach, failure, non - performance or non-
compliance by the Redeveloper with the terms of this Agreement or the terms of any
Governmental Approvals applicable to the Redeveloper, caused by any negligent or
willful act or omission of any director, officer, agent, employee, contractor, subcontractor
of any tier or independent contractor of the Redeveloper which prevents or delays the
Borough or the Redeveloper from performing its obligations under the terms of this
M
Agreement in any event, to the extent, not caused by the occurrence of an Event of Force
Majeure or any other Tolling Event.
Redevelopment Agreement (or sometimes referred to as "Agreement ") means
this Redevelopment Agreement entered into by and between the Borough and
Redeveloper along with any written amendments, modifications, interpretations and
supplements hereto.
Redevelopment Area means those parcels of real property specifically
identified in Exhibit A attached hereto and located within the Borough of Carteret,
County of Middlesex and State of New Jersey collectively designated by the Governing
Body as "an area in need of redevelopment" pursuant to the Local Redevelopment and
Housing Law. See also "Chrome Waterfront Redevelopment Area ".
Redevelopment Law means the State of New Jersey Local Redevelopment and
Housing Law, N.J.S.A. 40A:12A -1 et seq, as this statute may be amended.
Redevelopment Plan means the Chrome Waterfront Redevelopment Plan duly
adopted by the Borough's Governing Body on December 5, 2003, along with any duly
adopted amendments thereto, a copy of which is attached and annexed hereto at Exhibit
B.
Remediation Costs is defined in Section 2.12 hereof.
Subcontractor " means a person or organization having a direct or indirect
contract with Redeveloper to perform or supply any of the Work, and includes sub -
subcontractors.
Survey " means the standard process by which a qualified land surveyor
licensed to perform such services within the State of New Jersey) selected by the
Redeveloper performs measurements of a parcel or parcels of real property in order to
ascertain the size and contents of same.
Title Insurer means a reputable title insurance company selected by the
Redeveloper and licensed to do business within the State of New Jersey, retained to
provide title insurance to the Redeveloper or to the Borough and to perform or cause to
be performed any of a number of related title search services.
Tolling Event is defined in Section 11.4 hereof.
Transfer " means any transaction by which a Transferee obtains an interest in the
Project Premises, the Improvements constructed thereupon or in this Agreement by
means of methods which include, but are not limited to, conveyance, transfer, lease,
encumbrance, acquisition or assignment through sale, merger, consolidation,
reorganization, foreclosure or otherwise, including the appointment of a trustee in
bankruptcy or assignee for the benefit of creditors, as defined elsewhere in this
Agreement.
is
Transferee " means any party to whom an interest in the Project Premises or any
portion thereof, the Improvements constructed thereupon or rights in or under this
Agreement is conveyed, transferred, leased, encumbered, acquired or assigned, by sale,
merger, consolidation, reorganization, assignment, foreclosure or otherwise, including a
trustee in bankruptcy or assignee for the benefit of creditors.
WRAP (also referred to as a "Workable Relocation Assistance Plan ") shall
have the meaning set forth in Section 6.9, hereof.
ARTICLE 2
IMPLEMENTATION OF PROJECT
SECTION 2.1 Implementation of Protect. The Redeveloper agrees to
implement and complete the Improvements including the Infrastructure Improvements as
described in the Project Description attached hereto as Exhibit D, in accordance with the
terms and conditions of this Agreement subject to any Event(s) of Force Majeure or other
Tolling Event. All activities specified in this Agreement shall be performed in
accordance with the level of skill and care ordinarily exercised by developers of first
class residential, commercial and retail developments. The implementation of the overall
Project shall be performed in a phased development process as specified herein at Section
2.2 and 2.3, hereof.
SECTION 2.2 Phases of Project The Project shall consist of three (3) Phases
1, II and III). Pursuant to Section 2.7, hereof, within six (6) months of its completion of
its Environmental Due Diligence and Geotechnical Due Diligence studies the
Redeveloper shall submit a Project Schedule to the Borough for its review and approval.
The Project Schedule shall consist of a detailed listing of all material steps involved in
this project including all Governmental Approvals known to the Redeveloper to be
necessary and the target dates for the completion of each. The Borough and the
Redeveloper acknowledge and agree that the overall Project shall proceed in two (2)
phases and may include development and construction aspects contained in an optional
Phase III component.
SECTION 2.3 Phase III Option Redeveloper agrees to construct Phase I and
Phase II in accordance with the Project Schedule. The Redeveloper reserves the right to
proceed with the implementation and redevelopment of those Improvements including
the Infrastructure Improvements contained in the Phase III component of the overall
Project. Redeveloper shall retain this option for a period not to exceed two (2) years
from the Effective Date of this Agreement (hereinafter the " Opt -Out Date "). Not later
than thirty (30) Days prior to the Opt -Out Date, the Redeveloper may request in writing
that the Borough extend the Opt -Out Date in annual increments not to exceed four (4)
additional years provided Redeveloper pays the Borough an Option Extension Payment
of Two Hundred Fifty Thousand ($250,000) Dollars for each additional year for which
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the Phase III option shall be extended, which shall be paid not later than thirty (30) days
prior to the termination of the previous option extension date. The Borough shall not
unreasonably refuse to consent to the Redeveloper's request to extend the Opt -Out Date
described in the preceding sentence.
In the event that the Redeveloper elects to proceed with the Phase III component
of the Project, any monies placed with the Borough as and for an Option Extension
Payment shall be applied by the Borough only towards those Impact Fees payments
required to be made by the Redeveloper to the Borough in connection with the Phase III
component of the overall project as set forth at Section 9.9, hereof. Should Redeveloper
fail to extend the Opt -Out Date and to pay the option extension payment within thirty
30) days prior to the termination of the previous option extension date, Redeveloper
shall be deemed to have elected to proceed with the Phase III component. The
development and construction of the Phase III component shall be in accordance with the
requirements of this Agreement and the Project Schedule.
In the event Redeveloper elects not to proceed with the implementation and
redevelopment of Phase III, Redeveloper agrees to provide to the Borough a revised
General Development Plan within ninety (90) days after it has notified the Borough of its
election not to proceed with Phase III. If necessary, the Redeveloper shall also submit
amended preliminary and /or final site plans for Phase I and/or Phase II, respectively as
the case may be. In the event Redeveloper determines not to proceed with the Phase III
component the Borough shall be free to make any other arrangements or enter into any
contracts with respect to the future use of the Phase III properties provided that said
determination to do so by the Borough does not unreasonably interfere or obstruct the
Redeveloper's ability to proceed with or complete the Phase I and/or Phase II
components of its Project. The Redeveloper shall cooperate with Borough in the latter's
efforts in connection with same.
SECTION 2.4 Project Schedule The Redeveloper will diligently implement
and complete Phase I and Phase II of the overall project by the proposed completion
dates set forth in the Project Schedule, subject to the occurrence of an Event of Force
Majeure or other Tolling Event. In the event that the Redeveloper elects to proceed with
the Phase III component of the overall project, the Redeveloper will diligently implement
and complete same in material compliance with the Project Schedule, taking into account
any extensions of the Opt -Out Date previously agreed to by the parties. The parties to
this Agreement acknowledge and agree that in the event the Redeveloper elects to
proceed with the Phase III component, that the overall Project shall be complete not later
than fifteen (15) years from the Effective Date of this Agreement.
The parties agree and acknowledge that material compliance with the Project
Schedule serves the respective interests of both parties. The Redeveloper shall attempt
but is not obligated to implement any component of the overall project earlier than the
dates set forth in the Project Schedule. If Redeveloper fails to meet a proposed
completion date set forth on the Project Schedule or determines that it will be unable to
meet any proposed completion date, Redeveloper shall promptly provide notice to the
Borough stating: (a) the reason for the inability to complete the applicable task, (b)
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Redeveloper's proposed method for correcting the inability to do so, (c) Redeveloper's
schedule for completing such task and (d) the method or methods by which the
Redeveloper proposes to achieve subsequent material steps set forth in the Project
Schedule. Upon a showing of good cause that practical considerations, circumstances
and/or conditions prevail which make completion of any aspect of the overall project
within the proposed completion dates set forth in the Project Schedule infeasible or
unreasonable, the Redeveloper shall request of the Borough an extension of the relevant
proposed completion date(s). The Borough may not unreasonably refuse to consent to
the Redeveloper's request for such extension, and said extension granted shall be for not
more than ninety (90) days.
SECTION 2.5 Commencement of Construction The Redeveloper shall
Commence Construction of Improvements or Infrastructure Improvements in the
sequence set forth in the Project Schedule within ninety (90) days or as soon as possible
after the Redeveloper's receipt of all necessary Governmental Approvals applicable to
the relevant phase or aspect of the Improvements or the Infrastructure Improvements of
the relevant phase or aspect of the Project.
SECTION 2.6 Governmental Approvals Redeveloper shall use diligent efforts
to secure, or cause to be secured any and all Governmental Approvals and shall carry out
the Project in conformance therewith. Redeveloper shall have the right to appeal a denial
or unfavorable ruling as to any Governmental Approval and agrees that, as to any
approval of the Project by the Planning Board, in the event such approval is overturned
on appeal, Redeveloper will reapply to the Planning Board with such modifications as are
required to obtain preliminary and /or final site plan approval provided that such
modifications do not materially and negatively impact the economic feasibility or
marketability of the Project or the relevant phase thereof. Borough shall fully cooperate
with Redeveloper in obtaining all Governmental Approvals
SECTION 2.7 General Development Plan; Project Schedule; and
Preliminary and Final Site Plans. Within four (4) months of the completion of its
Environmental Due Diligence and Geotechnical Due Diligence studies the Redeveloper
shall prepare and submit to the Borough a General Development Plan for review and
comment and said General Development Plan shall include a concept plan in sufficient
detail for Borough to review and comment upon the Phase I, Phase II and optional Phase
III components of the overall project. The General Development Plan shall conform in
all material respects with the provisions of the Municipal Land Use Law and the legal
requirements of the Borough Planning Board for same and shall be in substantial
compliance with the Redevelopment Plan and the Project Description attached and
annexed hereto as Exhibit D. The Borough shall have forty -five (45) days from the date
of its receipt of the General Development Plan to review and provide written comments
to the Redeveloper. The Redeveloper shall use reasonable efforts to incorporate the
Borough's comments into the General Development Plan, provided that any
modifications to the General Development Plan arising from the written comments of the
Borough do not materially effect the cost considerations of the project, or the financial
feasibility of the Project and that such modifications will not cause an unreasonable delay
in the completion of the project or any phase thereof.
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After the Borough has had the opportunity to review and provide comments to the
General Development Plan as described in the preceding paragraph the Redeveloper will
submit a complete Governmental Application to the Borough Planning Board for
approval of the General Development Plan, within sixty (60) days pursuant to N.J.S.A.
40:55D39 (c)(1).
At the time that the Redeveloper submits its General Development Plan, the
Redeveloper shall submit a Project Schedule to the Borough for its review and approval
pursuant to Section 2.2. The Project Schedule shall consist of a sufficiently detailed
listing of all material steps involved in the overall project, the proposed completion dates
for same and those Governmental Approvals known by the Redeveloper to be necessary
to the commencement and completion of the project. The parties hereto acknowledge
and agree that the list of necessary Governmental Approvals may be updated or otherwise
modified, as the need to do so arises.
Within four (4) months of the Redeveloper's receipt of the Planning Board's
approval of the General Development Plan, the Redeveloper shall submit a combined
Governmental Application and Preliminary and Final Site Plan prepared by a State of
New Jersey licensed architect, Surveyor and/or Engineer for the development and
construction of the Improvements and the Infrastructure Improvements for the Phase I
component of the overall project to the Borough Planning Board. The Preliminary and
Final Site Plan shall be consistent with the approved General Development Plan, the
Project Description and the Redevelopment Plan.
Pursuant to the relevant proposed completion dates contained in the Project
Schedule, the Redeveloper shall cause to be prepared by a State of New Jersey licensed
architect, Surveyor and/or Engineer, Preliminary and Final Site Plan for the development
and construction of the Improvements and Infrastructure Improvements for the Phase II
component of the overall project. The Preliminary and Final Site Plan shall be consistent
with the approved General Development Plan, the Project Description and the
Redevelopment Plan. The Redeveloper shall submit a Governmental Application to the
Borough Planning Board for a combined Governmental Approval of the Preliminary and
Final Site Plan for the Phase II component of the project.
In the event that the Redeveloper elects to proceed with the Phase III component
of the overall project as provided for herein and pursuant to the relevant proposed
completion dates contained in the Project Schedule, the Redeveloper shall cause to be
prepared by a State of New Jersey licensed architect, Surveyor and /or Engineer, a
Preliminary and Final Site Plan for the development and construction of the
Improvements and Infrastructure Improvements for the Phase III component of the
overall project. The Redeveloper shall submit a Governmental Application to the
Borough Planning Board for a combined Governmental Approval of the Preliminary and
Final Site Plan for the Phase III component of the project.
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SECTION 2.8 Existence of Utilities Redeveloper acknowledges that local
public utility providers may have certain rights with respect to the Project Premises and
may own certain facilities located thereupon. 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 the Project as provided by this Redevelopment
Agreement, provided that Borough shall provide any appropriate order to accomplish
such relocation, consistent with the provisions of N..I.S.A. 40A:12A -10.
Notwithstanding this, the Borough shall use its best efforts to cooperate with and assist
the Redeveloper in its efforts to achieve positive results with regard to the local public
utilities. Any costs incurred by Borough in connection with same shall be deemed a
Borough Cost. Redeveloper shall consult local public utility providers with respect to all
site work, preparation and construction, and shall take all precautions to prevent personal
injury, property damage and other liabilities related to utilities above, at or under the
Project Premises.
SECTION 2.9 Infrastructure Improvements and Public Improvements As a
component of its Preliminary Site Plans, the Redeveloper shall submit to the Planning
Board for approval drawings, plans and /or renderings that sufficiently depict all
reasonably necessary utilities installations, repairs and /or upgrades in order to provide the
overall project (or any phase thereof), such utilities services required by or associated
with the proposed mixed -use development. In addition thereto, the Redeveloper
represents that, it shall seek Planning Board approval for certain upgrades and
improvements to Carteret Boulevard and Roosevelt Avenue, respectively. In the event
that the Redeveloper elects to proceed with Phase III of the overall project, it shall
propose to the Planning Board certain upgrades and improvements to Middlesex Avenue.
The development and construction of the roadways set forth in the preceding sentence
shall be deemed to be a "Public Improvement." In addition thereto any other publicly
accessible space developed and constructed as a component of the overall Project shall
also be deemed to be a "Public Improvement ", to the extent that the Borough has agreed
to accept such improvements.
In preparation of the above - described utility plans, the Redeveloper will assess
those utilities connections (ie; sewer systems, sewer lines, water pipes, gas lines,
electrical power lines, etc.) presently providing utilities services to the Project Premises.
The Redeveloper will make such repairs, replacements or upgrades as is deemed
reasonably necessary by the relevant utility provider in consultation with the
Redeveloper's professional consultants and the Borough Engineer. The Redeveloper
shall only be responsible to make such repairs, replacements or upgrades that will directly
be associated with but not necessarily exclusively benefit the completed project or any
phase thereof. The parties hereto acknowledge and agree that such repairs, replacements
or upgrades may confer an ancillary benefit upon the Carteret community outside of the
Project.
If the Borough requests that the Redeveloper make repair(s), replacement(s) or
upgrade(s) to any sewer and /or water systems, supply systems or devices that are
intended to provide additional capacity to service a new development or redevelopment
14
project other than this project, the Redeveloper and the Borough hereby agree to share the
costs and expenses for such repairs, replacements or upgrades on a pro -rata basis that is
consistent with the relative benefits conferred upon the Project and the new development
or redevelopment project. The pro -rata sharing of costs and expenses described in the
preceding sentence shall be consistent with the recommendations of the Redeveloper's
professional consultants and the Borough Engineer.
Redeveloper shall design and construct the Infrastructure Improvements, in a
good and workmanlike manner and in accordance with all applicable Legal
Requirements. Redeveloper shall provide a maintenance bond in a form generally
acceptable to Governmental Bodies in the State of New Jersey guaranteeing that the
Infrastructure Improvements when completed will remain in compliance with the
accepted condition for a period of two (2) years following the date of acceptance. All
contractor warranties for the Infrastructure Improvements shall be assigned to Borough or
enforced by Redeveloper on behalf of the Borough.
SECTION 2.10 Dedication of Public Improvements The Redeveloper shall
dedicate and convey the Public Improvements to the Borough or its designee, without
charge, upon request of the Planning Board or the Borough. Attached and annexed
hereto as Exhibit E is a listing of those Improvements deemed by the parties to be Public
Improvements, that have been accepted by the Borough. The listing of Public
Improvements contained in Exhibit E shall be amended to include any and all publicly
accessible space that the Borough elects to accept after the Effective Date of this
Agreement.
SECTION 2.11 Conveyance of Non - Dedicated Public Improvements The
Redeveloper shall form or provide for the formation of a Property Owner's Association,
in the manner prescribed by law, to which the Redeveloper shall convey all those Public
Improvements not dedicated to the Borough under Section 2.10, hereof. The Property
Owner's Association shall be responsible for garbage collection and removal, removal of
snow from the non - dedicated roadways, recycling services, street lighting of the non -
dedicated roads, and shall, from the time of such conveyance, be and remain responsible
for the maintenance, repair and replacement of such non- dedicated Public Improvements
and the provision of such services as required by Borough ordinances, state and federal
laws, rules and regulations and/or this Agreement and such other Agreements as entered
into by the Borough and the said Property Owner's Association. No assignment of these
obligations may be made without the Borough's written approval, which shall not be
unreasonably withheld. The obligations set forth in this Section shall survive the
completion of the Project and termination of this Agreement.
SECTION 2.12 Environmental and Geotechnical Due Diligence and
Obligations The Borough and the Redeveloper acknowledge and understand that given
the historical uses of each parcel of property within the Project Premises that it is likely
that some level of negative environmental impact or contamination will be identified by
an Environmental Due Diligence study. Further, the parties acknowledge and agree that
in the event of a finding of such negative environmental impact or environmental
15
contamination that mitigation, remediation or clean up may be necessary in order to
render the property developable.
a) The Borough agrees that with respect to the Project Premises, the
Redeveloper reserves the right to conduct such soil analyses, site investigations and other
environmental evaluations necessary to determine the conditions of the soils, subsurface
conditions and the presence of Hazardous Substances (hereinafter referred to as the
Environmental Due Diligence "). It shall be the sole responsibility of the Redeveloper to
undertake and pay for the costs of any and all Environmental Due Diligence studies.
Pursuant to Section 6.1 hereof, after having reviewed and accepted the preliminary real
property appraisals of each parcel of property contained in the Project Premises, the
Redeveloper shall use its best efforts to obtain access to each. In the event the
Redeveloper is unable to obtain access to each parcel of property or to any of them, the
Redeveloper shall notify the Borough in writing and to the extent of its rights under the
applicable law, the Borough agrees to furnish the Redeveloper, its agents or designees,
with such access, provided the Redeveloper furnishes the Borough with satisfactory
evidence of sufficient liability insurance as required by Section 10.3 hereof, insuring the
Redeveloper and the Borough against claims for bodily injury, death and property
damage arising from or attributable to such entry.
b) The Redeveloper may also conduct such geotechnical soil analyses that
include but are not limited to analyzing the load bearing capabilities and construction
capabilities of such soils. Such geotechnical soil analyses shall be hereinafter referred to
as " Geotechnical Due Diligence." It shall be the sole responsibility of the Redeveloper to
undertake and pay for the costs of any and all Geotechnical Due Diligence studies or to
correct any conditions found to exist which may be adverse to the construction of the
Project. Pursuant to Section 6.1 hereof, after having reviewed and accepted the
preliminary real property appraisals of each of the parcels of property contained within
the Project Premises, the Redeveloper shall use its best efforts to obtain access to each.
In the event the Redeveloper is unable to obtain access to each parcel of property or to
any of them, the Redeveloper shall notify the Borough in writing. Pursuant to the extent
of its rights under the applicable law, the Borough agrees to provide the Redeveloper, its
agents or designees with such access provided the Redeveloper furnishes to the Borough
satisfactory evidence of sufficient liability insurance as required in Section 10.3 hereof,
insuring the Redeveloper and the Borough against such claims for bodily injury, death
and property damage arising from or attributable to such entry.
c) The Redeveloper shall complete both its Environmental Due Diligence
and Geotechnical Due Diligence studies of the Project Premises within six (6) months of
the date upon which the Redeveloper obtains access to each parcel of property contained
within the Project Premises. At the conclusion of the Due Diligence periods set forth
herein the Redeveloper shall have the right to terminate this Agreement on the basis of
the identification of material environmental or of material geotechnical impediments,
identified during the Environmental Due Diligence or Geotechnical Due Diligence
studies. Such investigation shall include, at a minimum, a Phase I environmental
investigation by a qualified consultant, and, if additional investigation is recommended
by such Phase I environmental investigation, a Phase II environmental investigation
16
supplemented to comply with the Technical Regulations for Site Investigation
promulgated by the New Jersey Department of Environmental Protection ( "Phase II
Investigation "). If the Redeveloper elects to terminate this Agreement as set forth in this
Section, the Redeveloper shall pay all Borough Costs and the Borough shall be entitled to
retain all other payments made to the date of termination. Thereafter, the parties shall no
longer be obligated to each other under this Agreement. Nothing herein contained shall
prevent the parties from negotiating a modification to this Agreement that may include
the deletion of a parcel of property or any portion thereof or the reconfiguration of the
project or any phase thereof. If a Notice of Termination is not received by Borough
within thirty (30) days of the completion of the Environmental Due Diligence and
Geotechnical Due Diligence studies, this right to terminate shall be waived and this
Agreement shall be in full force and effect.
d) In the event that an interruption in the Redeveloper's access to any
of the parcels of property within the Project Premises or any portion thereof jeopardizes
Redeveloper's ability to make a reasoned determination concerning its right to terminate
this Agreement in accordance with this Section, Redeveloper may request reasonable
extensions of the time to complete either the Environmental or the Geotechnical Due
Diligence studies, or both. The Borough's consent to such extensions shall not be
unreasonably withheld, provided that the interruption of the Redeveloper's access to the
relevant parcel(s) is not the result of unreasonable actions or inactions on the part of the
Redeveloper. Such extensions shall not be for a period longer than the period of such
interrupted access.
e) In the event that this Agreement is not terminated in accordance
with the provisions of this Section on the basis of the Environmental Due Diligence or
Geotechnical Due Diligence studies, then Redeveloper shall, at its own cost and expense,
reserving any and all rights against third parties, undertake, perform and complete all
environmental investigation, remediation, wetlands delineation and mitigation and other
activities for the cleanup or containment of Hazardous Substances at, in or under the
parcels of property contained within the Project Premises as necessary for fulfillment of
its obligations under this Agreement. Redeveloper shall also, at its own cost and
expense, remedy or otherwise address any geological, geotechnical, geophysical or other
unfavorable conditions in a manner selected that will insure the successful completion of
the Project. Borough shall have no obligation with respect to the investigation of
environmental or geotechnical conditions on any of the parcels of property contained
within the Project Premises and Borough shall have no obligation with respect to the
remediation of environmental or geotechnical conditions on the Project Premises.
f) In accordance with Section 2.12 (g) below, Redeveloper shall
undertake, finance, perform and complete all Environmental Due Diligence studies,
Geotechnical Due Diligence studies, investigations, remediation, and other activities for
the cleanup or containment of Hazardous Substances and the correction of any
geological, geotechnical and geophysical conditions upon the Project Premises (the
Remediation Costs ").
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g) Redeveloper shall bear all Remediation Costs for, at or in
connection with the Project Premises.
h) Redeveloper shall undertake all wetlands delineation, permitting
and mitigation of the Project Premises necessary to construct the Project and bear all
costs associated with same.
SECTION 2.13 Traffic Impact Studv Redeveloper shall provide Borough and
the Planning Board with a traffic impact study for the Project in connection with its
Governmental Application for approval of the General Development Plan.
SECTION 2.14 Condition of Site After Commencement of Construction of the
Project, Redeveloper shall to the extent practicable keep the Project Premises free from
any substantial accumulation of debris or waste materials and shall maintain in good
condition any landscaping and amenities required under the final site plan.
SECTION 2.15 Neiehborhood Impacts Redeveloper and the Borough
acknowledge that the construction of the Project may have certain impacts on the
neighborhoods in the vicinity of the Project. Although it is anticipated that the Project
will provide many positive effects on the community, it is also recognized that it may
result in some temporary inconveniences during the time that construction takes place
and potentially for a short time thereafter. As such, the Redeveloper shall make
reasonable efforts to minimize any temporary inconveniences that arise provided that
such minimization efforts are within the authority and ability of the Redeveloper.
SECTION 2.16 Traffic Redeveloper and Borough agree that the direction, flow
and amount of traffic in and around the Project Premises is an issue to be addressed
during the construction of the Project, as well as after its completion. Redeveloper shall
exert reasonable efforts to minimize the traffic effects of the Project upon the surrounding
neighborhoods.
SECTION 2.17 Certifications Upon the written request of either party, but not
more frequently than quarterly, the Redeveloper or the Borough shall deliver to the
requesting party within fourteen (14) days after the request, a written instrument duly
executed and acknowledged certifying that it is not aware of any condition, event or act
which would constitute a violation of this Agreement and setting forth whether or not the
other party is in default of this Agreement and if so, stating the nature of such default. It
is acknowledged and agreed to by the Redeveloper and the Borough that such
certification may be relied upon by any Financial Institution, lender, mortgage assignee,
prospective mortgage assignee or prospective purchaser of the Project Premises or any
portion thereof.
SECTION 2.18 Certificates of Occupancy and Certificates of Completion
Upon completion of the construction of each separate structure within any phase of the
overall project and in accordance with the Governmental Approvals, the Redevelopment
Plan and this Agreement, the Redeveloper shall apply for and receive a Certificate of
18
Occupancy from the Borough of Carteret Department of Buildings or such other Borough
official vested with the authority to issue same.
Upon the Redeveloper's receipt of a Certificate of Occupancy for the relevant
structure(s), the Borough agrees to issue a Certificate of Completion, for the purposes of
releasing the Covenants and Restrictions referenced in this Agreement and those imposed
pursuant to the Redevelopment Law. The Certificate of Completion shall be in proper
written form and shall constitute a recordable, conclusive determination that with respect
to the structure(s) identified in the Certificate of Completion, the Redeveloper has
performed all of its duties and obligations under this Agreement and has completed
construction of same in accordance with the requirements of the Redevelopment Plan and
this Agreement.
Upon the Borough's issuance of a Certificate of Completion and in accordance
with Section 5.3, hereof, the Covenants and Restrictions identified in Section 5.1(a) -(g)
inclusive and in Section 5.10) and (k) shall cease and terminate with respect to the
subject structure(s). Upon issuance of the Certificate of Completion, the conditions
determined to exist at the time the Project Premises (or that portion thereof developed and
constructed upon relating to the relevant structure(s)) was designated to be "an area in
need of redevelopment" shall be deemed to no longer exist, and the land and the relevant
structure(s) shall no longer be subject to eminent domain. If the Borough shall fail or
refuse to provide the Certificate of Completion within sixty (60) days after written
request by the Redeveloper, the Borough shall provide to the Redeveloper a written
statement setting forth in detail the respects in which it believes that the Redeveloper has
failed to complete the structure or the relevant structures of the Project (as the case may
be) or any of the Improvements that relate to the relevant structure(s) in accordance with
the provisions of this Agreement or is otherwise in default under this Agreement and
what reasonable measures or acts will be necessary in order for the Redeveloper to
become entitled to receive a Certificate of Completion.
SECTION 2.19 Proposed Completion Dates. The parties to this Agreement
acknowledge and agree to diligently attempt to complete each material step of the
redevelopment process pursuant to the proposed completion dates contained in the
Project Schedule, subject to the occurrence of an Event of Force Majeure or other Tolling
Event. In the event of an Event of Force Majeure or other Tolling Event, either party
may request an extension of any affected proposed completion date within thirty (30)
days of the occurrence of the Event of Force Majeure or other Tolling Event. Said
request shall not be unreasonably denied by the other party.
SECTION 2.20 Prohibition Alzainst Suspension, Discontinuance or
Termination The Project Schedule shall control the progress and completion of each
phase of the overall, Project. Redeveloper will make a good faith effort to diligently
adhere to the proposed completion dates set forth in the Project Schedule, subject only to
relief resulting from the occurrence of an Event of Force Majeure or other "Tolling
Event ".
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a) Redeveloper and the Borough shall not willfully suspend or
discontinue its respective performances of its obligations under this Agreement or
terminate this Agreement (other than in the manner provided for herein) for any reason
other than an Event of Force Majeure or other Tolling Event. Any suspension or
discontinuance of the Redeveloper's performance of its obligations under this Agreement
shall only be valid to the extent and for the period of time that such performance is
limited or prevented as a direct result of such occurrence(s).
SECTION 2.21 Restoration of Project Improvements Borough agrees that
Redeveloper shall have the right to restore to its original condition any structure or other
Improvement that is damaged or destroyed prior to the issuance of a Certificate of
Completion, regardless of any change in the Borough's rules, regulations or ordinances.
Any such restoration must be consistent with this Agreement.
SECTION 2.22 Cooperation Both parties shall fully cooperate with each other
as necessary to accomplish the Project, including the good faith negotiation of any
additional agreements that may be required in order to effectuate the goals and objectives
of this Agreement, provided, however, that such actions shall not result in a material
increase in the parties' respective obligations hereunder or material decrease in the
parties' respective rights hereunder.
SECTION 2.23 Term. This Agreement shall become effective upon the
Effective Date, and with regard to each phase of the overall project shall remain in full
force and effect from such date until the Project has been implemented and completed, as
evidenced by the issuance of the Certificate of Completion for the last structure(s),
Improvement or Infrastructure Improvement, in accordance with the terms of this
Agreement, the Redevelopment Plan and the requirements of the approved final site plan
and any other Governmental Approvals.
ARTICLE 3
GENERAL REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties by Redeveloper Redeveloper
hereby represents and warrants the following to Borough for the purpose of inducing
Borough to enter into this Agreement and to consummate the transactions contemplated
hereby, all of which shall be true as of the Effective Date of this Agreement:
a) Redeveloper is a Limited Liability Company of the State of New
Jersey, is qualified to do business and is in good standing under the laws of the State of
New Jersey, 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 Agreement.
b) Redeveloper has the legal power, right and authority to enter into
this Agreement and the instruments and documents referenced herein to which
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Redeveloper is a party, to consummate the transactions contemplated hereby, to take any
steps or actions contemplated hereby, and to perform its obligations hereunder.
c) This Agreement is duly executed by Redeveloper, and is valid and
legally binding upon Redeveloper and enforceable in accordance with its terms. The
execution and delivery hereof shall not constitute a default under or violate the terms of
any indenture, agreement or other instrument to which Redeveloper is a party.
d) To the best of the Redeveloper's knowledge, there are no pending,
or to the best of Redeveloper's knowledge, threatened litigation, proceedings or pending
investigations that would prevent Redeveloper from performing its duties and obligations
hereunder or have a material adverse effect on the financial condition of Redeveloper.
e) To the best of the Redeveloper's knowledge all materials and
documentation submitted by Redeveloper and its agents to Borough and its agents were,
at the time of such submission, and as of the Effective Date of this Agreement, materially
accurate, and Redeveloper shall continue to inform Borough of any material changes in
the documentation submitted.
f) The Redeveloper shall, at such times as Borough may request
Furnish the Borough with a complete statement sworn and subscribed to by the Managing
Member of the Redeveloper identifying all Persons holding ownership interests, equitable
interests or beneficial interests in the Redeveloper to the extent that such interest exceeds
ten (10 %) percent and the extent of their respective holdings. And in the event any other
parties have a beneficial interest in Redeveloper's entity, their names and the extent of
such interest pursuant to N.J.S.A. 40:55D:48.1, where such beneficial interest exceeds
ten (10 %) percent.
SECTION 3.2 Representations and Warranties by Borough Borough
hereby represents and warrants the following to Redeveloper for the purpose of inducing
Redeveloper to enter into this Agreement and to consummate the transactions
contemplated hereby, all of which shall be true as of the Effective Date of this
Agreement:
a) Borough has the legal power, right and authority to enter into this
Agreement and the instruments and documents referenced herein to which Borough is a
party, to consummate the transactions contemplated hereby, and to perform its
obligations hereunder.
b) This Agreement is duly executed by Borough and is valid and
legally binding upon Borough and enforceable in accordance with its terms on the basis
of Legal Requirements presently in effect and the execution and delivery thereof shall
not, with due notice or the passage of time, constitute a default under or violate the terms
of any indenture, agreement or other instrument to which Borough is a party.
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c) Except as disclosed in writing, there is no pending, or to the best of
Borough's knowledge, threatened litigation or other proceedings that would prevent
Borough from performing its duties and obligations hereunder.
d) That the ordinance adopting the Redevelopment Plan, the
ordinance designating the Redevelopment Area and the Resolution designating the
Redeveloper to serve as Redeveloper of the Project Premises were duly adopted by the
Governing Body in accordance with the Redevelopment Law and any other Legal
Requirements.
ARTICLE 4
ACKNOWLEDGMENT OF RECEIPT OF COLLATERAL DOCUMENTS
SECTION 4.1 Delivery of Collateral Documents. The Redeveloper
and Borough agree that the rights, obligations and liabilities of the parties under this
Agreement are conditioned upon the delivery of the executed collateral documents
referred to in this Article 4 and hereby acknowledge the receipt of such documents,
simultaneously with the execution of this Agreement.
SECTION 4.2 Documents Delivered by Redeveloper.
a) A certificate of the Managing Member of the Redeveloper, to the
effect that to the best of his knowledge each of the representations of the Redeveloper
which are set forth in Section 3.1, hereof are true and correct as of the Effective Date of
this Agreement.
b) Certified copies of the Certificate of Formation and Certificate of
Good Standing of the Redeveloper.
c) A comprehensive list of the names, addresses and phone numbers
of all individuals who will comprise Redeveloper's "Project Team" including, but not
limited to, those individuals who will be directly responsible for managing the Project
design, Governmental Approvals and construction. Redeveloper shall provide notice to
the Borough of any changes in the representatives on the Project Team.
SECTION 4.3. Documents Delivered By Borough
a) A certificate of a duly authorized representative of the Borough that all
properties originally designated as being within the Redevelopment Area as specifically
identified in Exhibit A attached and annexed hereto have been designated as "an area in
need of redevelopment" in accordance with the Redevelopment Law and that each parcel
of property is included in the Redevelopment Plan as properties listed for acquisition.
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ARTICLE 5
REDEVELOPER COVENANTS; DECLARATION OF COVENANTS AND
RESTRICTIONS
SECTION 5.1 Redeveloper Covenants Redeveloper covenants and agrees as
follows:
a) Redeveloper shall carry out the Project in accordance with the
provisions of this Agreement and all Legal Requirements, including, but not limited to,
the Redevelopment Law, all Governmental Approvals and Environmental Laws. Such
obligation shall include, but not be limited to, Redeveloper making commercially
reasonable efforts to ensure that all consultants, professionals, employees, agents,
contractors engaged by Redeveloper or any of Redeveloper's subcontractors shall have
the skill and judgment necessary to implement the Project in compliance with the terms
and conditions of this Agreement. All activities performed under this Agreement shall be
performed in accordance with the level of skill and care necessary so that the Project,
upon completion, satisfies the design, materials and quality requirements of all local
approvals and this Agreement.
b) Redeveloper shall undertake with due diligence (i) the financing of
the Project or any phase or aspect thereof, (ii) construction and development of the
various phases of the project, (iii) to begin and complete each phase of the project on or
prior to the dates set forth in the Project Schedule, (iv) to seek tenants and purchasers, as
applicable, for the Improvements.
c) In the event Redeveloper wishes to materially change or modify
the Improvements as set forth in the Project Description contained in Exhibit D attached
hereto, Borough's written approval must be secured prior to development of the altered
Improvements.
d) Until the issuance of a Certificate of Completion for the specific
structure(s), Redeveloper shall not use the subject structure(s), Improvements, or any part
thereof for which a Certificate of Completion has not been issued, in a manner that is not
consistent with the Redevelopment Plan and this Agreement.
e) Prior to the issuance of a Certificate of Completion, Redeveloper
shall not use the relevant structure(s), or any part thereof for which a Certificate of
Completion has not been issued, as collateral for any activity unrelated to this Project.
f) To the extent authorized by the relevant Legal Requirements,
Redeveloper shall fulfill its material obligations under any and all Project Agreements,
provided, however, that this covenant is not intended to prevent Redeveloper from
contesting the scope or nature of such obligations in good faith nor is it intended to make
Borough a third -party beneficiary of such agreements.
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g) Except as may be specifically provided for herein, Redeveloper
shall complete the Project or cause the Project to be completed, using any public and /or
private resources that may be available; provided, however, that Borough shall in no way
be obligated to provide such resources except as specifically provided for herein.
h) 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 sex in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Project Premises nor shall
Redeveloper itself, or any Person claiming under or through 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 on the Project Premises.
i) Redeveloper shall refrain from restricting the sale, lease, sublease,
rental, transfer, use, occupancy, tenure, or enjoyment of the Project Premises (or any part
thereof) on the basis of race, color, religion, creed, national origin, ancestry, physical
handicap, age, marital status, affectional preference or sex of any person.
0) Redeveloper covenants that its undertakings pursuant to this
Agreement shall be for the purpose of redevelopment of the Project Premises and not for
speculation in land holding.
k) Redeveloper shall not, without the prior written consent of
Borough: (i) effect or permit any change, directly or indirectly, in the majority ownership
or control of the Redeveloper, (ii) assign or attempt to assign this Agreement or any
rights herein or in the Project Premises. Notwithstanding the foregoing the Borough's
prior approval shall not be required for those transfers defined as "Permitted Transfers"
as this term is defined in Section 8. 1, hereof.
Redeveloper further represents and agrees for itself, its successors and assigns,
that except only by way of security for and only for the purpose of obtaining the
financing necessary to enable the Redeveloper or any successor in interest to acquire any
or all of the Project Premises; to construct the Project, any phase thereof or Improvement;
to perform its obligations with respect to completing the Project or any phase thereof or
to operate and maintain the Project Premises or any portion thereof or Improvement
constructed thereupon and any other purpose authorized by this Agreement, that the
Redeveloper has not made or created, and that it will not, prior to the completion of the
relevant structure(s) as evidenced by the issuance of the Certificate of Completion
referenced in Section 2.18 herein, make or create, or suffer to be made or created, any
sale, conveyance or Transfer in any other mode or form of the Project Premises or any
portion thereof, or any Improvement or structure thereon or any part thereof or any
interest therein, without the prior written approval of the Borough, excepting those
Permitted Transfers identified in Section 8.1. hereof.
With the express prior written consent of the Borough, the Redeveloper, without
violating the provisions of this Section, may effectuate a Transfer (other than a Permitted
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Transfer) if the proposed Transferee has the qualifications and financial responsibility
necessary and adequate, as may be reasonably determined by the Borough, to fulfill the
obligations to be undertaken in this Agreement by the Redeveloper. A current audited
financial statement, a guarantor agreement and any other documentation reasonably
requested by the Borough must be promptly submitted to Borough for consideration. The
Transferee by written document acceptable in form and substance to the Borough, for
itself and its successors and assigns, and for the benefit of Borough, shall expressly
assume all of the obligations of the Redeveloper under this Agreement applicable to the
property interest conveyed with such sale, assignment or Transfer and shall agree to be
subject to all the conditions and restrictions to which the Redeveloper is subject
hereunder, including the restrictions regarding the right to subsequent Transfers. All
relevant instruments and other legal documents proposed to effect any such transfer shall
be submitted to the Borough and if the Transferee is approved by Borough such approval
shall be indicated to the Redeveloper in writing, which approval shall not be
unreasonably withheld. The Borough shall not unreasonably refuse to consent to any
such proposed Transfer. If not approved in writing by the Borough such Transfer shall be
deemed not to have been approved.
SECTION 5.2 Declaration of Covenants and Restrictions Redeveloper shall
execute and record one or more Declaration of Covenants and Restrictions, approved by
Borough ( "Declaration ") imposing on the Project Premises the Redeveloper Covenants
and Restrictions, and the provisions contained in Section 5.1, hereof and Section 8.1,
hereof relating to Permitted Transfers, all as may be limited by the rights of a Holder
granted hereunder.
SECTION 5.3 Effect and Duration of Redeveloper Covenants It is intended
and agreed, and the Deeds for the parcels of property contained within the Project
Premises shall so expressly provide, that the Covenants and Restrictions set forth in
Section 5.1, hereof shall be covenants running with the land and that they shall, in any
event, and without regard to technical classification or designation, legal or otherwise,
and except only as otherwise specifically provided in this Agreement, be binding, to the
fullest extent permitted by law and equity, for the benefit and in favor of, and enforceable
by, the Borough, its successors and assigns, and any successor in interest to the Project
Premises, against the Redeveloper, its successors and assigns and every successor in
interest therein, and any party in possession or occupancy of the Project Premises. It is
further intended and agreed that the Covenants and Restrictions set forth in Section 5.1
a) — (g) inclusive, and Section 5.10) and (k) shall remain in effect until the issuance of a
written Certificate of Completion by the Borough for the subject structure or
Improvement constructed upon the relevant parcel(s) of property (at which time such
Covenants and Restrictions shall cease and terminate with regard to same). The parties
also agree that the Covenants and Restrictions provided in Sections 5.1 (h) and (i) shall
remain in effect without limitation as to time; provided that such Covenants and
Restrictions shall be binding on the Redeveloper, each successor in interest to the Project
Premises, and each party in possession or occupancy, respectively, only for such period
as Redeveloper or such successor or party shall have title to, or an interest in, the Project
Premises, the Improvements and structures thereon, as the case may be.
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SECTION 5.4 Enforcement by Borough In amplification, and not in
restriction, of the provisions of this Article 5, it is intended and agreed that Borough and
its successors and assigns shall be deemed beneficiaries of the Covenants and
Restrictions set forth in this Agreement, both for and in their own right but also for the
purposes of protecting the interests of the community and other parties, public or private,
in whose favor or for whose benefit such Covenants and Restrictions have been provided.
Such Covenants and Restrictions shall (and the Declaration shall so state) run in favor of
Borough for the entire period during which such Covenants and Restrictions shall be in
force and effect, without regard to whether Borough has at any time been, remains, or is
an owner of any land or interest therein, or in favor of which such Covenants and
Restrictions relate. Borough shall have the right, in the event of any breach of any such
Covenants or Restrictions, 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 Covenant or Restriction, to which it or any other beneficiaries of such
Covenant or Restriction may be entitled.
ARTICLE 6
ASSEMBLAGE OF PROPERTY
SECTION 6.1 Preliminary Real Property Appraisal Review Pursuant to the
terms of the Interim Cost Agreement entered into by and between the Borough and the
Redeveloper on August 25, 2003, the Borough has commissioned the preparation of
preliminary real property appraisals for each parcels of property contained within the
Project Premises. Upon receipt of each such appraisal, the Borough shall provide copies
of said appraisals to the Redeveloper for its review and approval. The Redeveloper shall,
within thirty (30) days of its receipt of each preliminary real property appraisal, have the
right to terminate this Agreement where, in its sole discretion, the valuations represented
exceed that which it considers a reasonable dollar value for the properties. If
Redeveloper does not reject said preliminary real property appraisal within thirty (30)
days, they shall be deemed accepted and the right to terminate set forth in this Section
shall be deemed to be null and void. The preliminary real property appraisals shall not be
effective for any other purpose under this Agreement other than to provide the
Redeveloper with a basis for privately negotiating with the record owners for conveyance
of any or all of the parcels of property contained within the Project Premises as set forth
in Section 6.2, hereof and Redeveloper's rights to terminate this Agreement pursuant to
this Section.
SECTION 6.2 Redeveloper's Acquisition Responsibility If Redeveloper has
not terminated this Agreement pursuant to Section 2.12 or Section 6.1 hereof,
Redeveloper shall use reasonable efforts, at its sole cost and expense, to acquire each
parcel of property contained within the Project Premises necessary for the construction of
the Improvements. Redeveloper shall notify Borough within ten (10) days of any
purchase contracts it enters into to acquire each or any of the parcels of property
contained within the Project Premises. Redeveloper shall pay all real estate taxes and
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other impositions lawfully due on any such parcel of property from the date that
Redeveloper acquires its interest in same.
SECTION 6.3 Property Notice After unsuccessfully making a written offer
and exercising its best commercial efforts and attempting to engage owner(s) of record in
good faith negotiations for each or any of the parcels of property contained within the
Project Premises, the Redeveloper shall provide written notice to Borough of its inability
to amicably acquire the relevant parcel(s) (hereinafter " Property Notice "). The Property
Notice shall be submitted to the Borough along with the Redeveloper's request that the
Borough commence the acquisition of the relevant parcel(s) through the exercise of
eminent domain authority, the Condemnation Funds as specified in Section 6.5, hereof
and copies of any title work, surveys and the estimate of costs for any reasonable
necessary environmental and/or geoteclinical mitigation, remediation or clean -up or any
appraisals performed directly or on behalf of the Redeveloper.
SECTION 6.4 Condemnation Procedures
a) Upon receipt of a Property Notice and the taking of necessary
governmental action by the Governing Body and provided that Redeveloper is in
compliance with this Agreement, Borough agrees to exercise its power of condemnation
for each parcel of property identified by the Redeveloper in the Property Notice described
in Section 6.3, hereof, in accordance with the Redevelopment Law and the Eminent
Domain Act. The Borough shall obtain any and all Condemnation Appraisal(s) for each
of the relevant parcel(s) identified in the Redeveloper's Property Notice. The Borough
shall be responsible for the commencement of bona fide good faith negotiations to
acquire the subject property from the owner(s) of record. The Borough agrees, to the
extent allowable by law, it shall seek a modification, credit or adjustment to the Offer
Price or alternatively to the compensation ultimately paid to the record owner(s) of the
subject parcel(s) of property. The modification, credit or adjustment to be sought by the
Borough shall be based upon the estimated costs of the aforementioned environmental
remediation, mitigation or clean -up. The Borough's efforts to obtain such modification,
credit or adjustment shall be in accordance with the New Jersey eminent domain statute
and other relevant law, and shall be obtained with the participation of and /or in
consultation with the Redeveloper.
b) If, as part of the Environmental Due Diligence, a preliminary site
assessment discloses areas of concern, Redeveloper shall conduct additional site
investigations and determine a reasonable estimate of remediation costs ( "the Estimated
Environmental Costs "). Redeveloper shall submit the Estimated Environmental Costs of
Borough as soon as may be practicable. Borough shall exercise its discretion not to
commence condemnation proceedings until Redeveloper has submitted the Estimated
Environmental Costs, which submittal shall not be unreasonably withheld and except at
Redeveloper's written request, the condemnation complaint shall include appropriate
environmental allegations and reservations of rights with respect to the cost recovery.
The Borough shall consult with the Redeveloper prior to filing and recording a
Declaration of Taking. Upon motion by the condemnee to withdraw the fair market
27
value of the relevant parcel of property from Court, Borough will object to the
withdrawal of the Estimated Environmental Costs and will seek an order allowing the
court to hold the Estimated Environmental Costs as potential cost recovery damages.
Any costs incurred by the Borough in pursuing the non - release of the Estimated
Environmental Costs are hereby deemed to be Condemnation Costs and shall be paid by
Redeveloper. The Borough's efforts to obtain such modification, credit or adjustment
shall be in accordance with the New Jersey eminent domain statute and other Legal
Requirement, and shall occur in consultation with and /or participation of the
Redeveloper.
C) With respect to any condemnation proceedings instituted by Borough, the
Redeveloper agrees that the Borough shall be entitled to appoint outside legal counsel to
act as special counsel to conduct said condemnation proceedings. In addition, Borough
shall have the right to hire appraisers, surveyors and such other professionals as may
reasonably be required in connection with such condemnation proceedings, the costs of
which are deemed to be Condemnation Costs as this term is defined in Section 6.5,
hereof. Prior to the retention of any such counsel, expert or professional, the Borough
shall use reasonable efforts to consult with the Redeveloper and provide it with a
schedule of the estimated costs and expenses for the services contemplated. Borough
agrees that it will cause any attorney retained by it to negotiate the acquisition of the
relevant parcel(s) of property or to prosecute any condemnation action, in consultation
with Redeveloper and its professionals and to frequently provide the Redeveloper with
status update reports on all negotiations and any condemnation proceedings. The
Redeveloper, the Borough and the Borough's special counsel shall discuss all strategies
such attorney proposes, including settlement limits and strategies. The Borough shall
make available to its appraisers the results of the Redeveloper's Environmental Due
Diligence studies in order that the results thereof may be taken into account in their
appraisals to the extent permitted by law in the opinion Borough's professional
consultants in consultation with those of the Redeveloper. The Redeveloper may,
however, at the time of the issuance of a Property Notice, request that the Borough not
conduct any other pre - condemnation environmental assessments or, following the Pre -
Condemnation Environmental Assessments, request that the results not be provided to the
appraisers. Redeveloper acknowledges that such a request may result in the appraised
value of the relevant parcel of property being higher than if the Pre - Condemnation
Environmental Assessment had been conducted and provided to the appraisers and that
Redeveloper shall be responsible for payment of such difference. Redeveloper further
acknowledges that such difference, off -set, credit or modification may not ultimately be
recoverable from the owner of the relevant parcel of property.
d) Each parcel of property contained within the Project Premises acquired by
the Borough shall be conveyed to the Redeveloper. Title to each such parcel of property
shall be good and marketable and insurable at regular rates and without special premium
by a reputable Title Insurer doing business in the State, subject only to permitted title
exceptions, namely, title exceptions which do not adversely affect the construction,
financing, marketing or use of the Project ( " Permitted Exceptions "). Premiums incurred
for any title insurance policy or policies, obtained or requested by Redeveloper, insuring
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its interest in the relevant parcel of property(ies) shall be referred to as "Title Insurance
Costs ".
e) Borough shall promptly file and record in the Office of the Clerk of
Middlesex County, the deed to the relevant parcels of property(ies) (or portions thereof)
if acquired by Purchase Agreement and a Declaration of Taking if acquired by
condemnation proceedings. If Borough has not designated Redeveloper as grantee on
any such instrument, Borough will then immediately convey the property interest
acquired to Redeveloper by proper instrument and subject to payment of all outstanding
financial obligations of the Redeveloper in accordance with this Agreement.
SECTION 6.5 Condemnation Costs Redeveloper shall pay those reasonable
costs, expenses and fees provided for herein and incurred or which may be incurred by
Borough in connection with the Borough's acquisition of the relevant parcels of property
identified in the Redeveloper's Property Notice, whether acquired by negotiated sale or
condemnation. These costs are hereinafter referred to as the "Condemnation Costs" and
shall include, but not be limited to:
a) The Offer Price or the ultimate price paid to the third party record
owners of the relevant parcels of property identified in the Redeveloper's Property Notice
which shall be the just compensation value determined by the condemnation process
either in bona -fide negotiations with the record owner(s) or as a result of the proceedings
before the Condemnation Commissioners or a Court of Competent Jurisdiction Payment
of the Offer Price shall be in accordance with Section 6.6, hereof;
b) The amount paid in compromise or settlement of any claim for just
compensation (as to which Borough agrees it will not settle or compromise any claim
without Redeveloper's consent, which consent shall not be unreasonably denied or
delayed);
c) Any and all Relocation Costs to the extent that such costs and
expenses are required under the provisions of the Uniform Relocation Assistance Act,
including all costs and expenses associated with the development of the WRAP;
d) Reasonable attorney fees for the Borough's special condemnation
counsel incurred in connection with representation of the Borough's interests in the bona -
fide negotiations and if necessary, the condemnation action and any appeals arising out of
the eminent domain action;
e) Title insurance costs;
f) Liability and property insurance premiums and costs;
g) All reasonable out -of- pocket costs and fees incurred in complying
with N.J.S.A. 40A:12A- (8)(c) and N.J.S.A. 20:3 -18, including, but not limited to,
professional services, attorneys fees, expert fees, inspections, appraisals, all building,
sewer and water connection fees, environmental investigations, court deposits (required
It
by N.J.S.A. 20:3 -18) and court costs and fees associated with bona fide negotiations,
commissioner's hearings, court proceedings and challenges to the condemnation.
The Borough will use reasonable efforts to consult with Redeveloper with regard
to said costs and fees, prior to incurring them. The Redeveloper shall pay for such costs
provided that such costs are not duplicative of other costs and expenses for which the
Redeveloper is responsible as set forth elsewhere in this Agreement. The Borough shall
not be obligated to pay for any costs, fees and /or expenses on behalf of Redeveloper.
SECTION 6.6 Condemnation Funds Simultaneously with delivery of the
Property Notice, Redeveloper shall deposit with Borough for each parcel of property
identified therein the amount of Twenty -Five Thousand Dollars ($25,000.00) such
amount shall be used to pay any and all Condemnation Costs as set forth in Section 6.5,
hereof (except for the Offer Price) and other fees incurred in complying with N.J.S.A.
40A:12A -8(c) and N.J.S.A. 20:3 -18. The deposits made by the Redeveloper pursuant to
this Section shall hereinafter be referred to as the "Condemnation Funds ". The
Condemnation Funds shall be used to pay the Condemnation Costs incurred by Borough
in the bona fide negotiations or as part of the condemnation action for such property other
than the Offer Price.
Following the Governing Body's authorization to proceed with the condemnation
action of each parcel of property that is the subject of the Property Notice and as a
condition precedent to Borough commencing condemnation proceedings to acquire the
relevant parcel(s) of property, Redeveloper shall deposit with Borough the amount equal
to one hundred twenty (120 %) percent of the Offer Price. This Offer Price shall be
established by the Condemnation Appraisal performed by the Borough. Within ten (10)
days of the receipt by Redeveloper of a written notice from Borough that the amount of
the Condemnation Funds (excluding the Offer Price) has decreased to Five Thousand
5,000) Dollars, Redeveloper shall replenish the Condemnation Funds to the amount of
Twenty -Five Thousand ($25,000.00) Dollars, or such amount as may be negotiated and
agreed to by the parties. Should the Condemnation Costs incurred by Borough exceed
the amount in the Condemnation Funds, Redeveloper shall pay the full amount of those
costs within seven (7) business days of the receipt of written notice from Borough that
such costs are due, it being understood that should the Borough be required to advance
any such funds on behalf of the Redeveloper, such payments shall be deemed a lien upon
the Project Premises in favor of the Borough until paid. Redeveloper shall take all
necessary steps and make all necessary payments to or on behalf of Borough in a timely
fashion to meet this obligation.
In the event that during the prosecution of an eminent domain action the Court
orders the Borough to place into escrow an amount of monies in excess of the Offer
Price, previously placed with the Borough by the Redeveloper pursuant to this Section,
the Redeveloper shall remit to the Borough the amount in excess of said Offer Price,
within seven (7) business days of its receipt of written notice from the Borough.
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SECTION 6.7 Condemnation of Easements Provided same is reasonably
necessary, Redeveloper may, in accordance with Section 6.3, hereof also issue a Property
Notice in connection with property interests that are less than fee interests (e.g., an
easement on the subject parcels of property benefiting other property) or in connection
with a less - than -fee interest in other property in the Redevelopment Area with regard to
the Project (e.g., an easement on neighboring property for the benefit of the Project)
Easement Property "). Upon receipt of such Property Notice and provided that Borough
has the right to exercise condemnation authority over such property interests, Borough
shall proceed in accordance with Section 6.4, hereof. Redeveloper shall be responsible
for all Condemnation Costs incurred in connection with the condemnation of any
Easement Property.
SECTION 6.8 No Warrantv of Suitability Redeveloper specifically
acknowledges that Borough makes no representation or warranty, expressed or implied or
otherwise, as to any of the parcels of property contained within the Project Premises or as
to the fitness of any such parcel of property for use for any particular purpose, condition
or durability thereof, or that it will be suitable for Redeveloper's purposes.
SECTION 6.9 Relocation Assistance To the extent required by the Uniform
Relocation Assistance Law, the Redeveloper shall be responsible for providing
Relocation Assistance to all residents and businesses displaced from any parcel of
property contained within the Project Premises as a result of the Borough's condemnation
actions. On behalf of the Borough, the Redeveloper shall prepare a Workable Relocation
Assistance Plan ( " WRAP "), which shall be provided to the Borough for the Borough to
submit for approval to the State of New Jersey Department of Community Affairs.
SECTION 6.10 Tax Abatements and Tax Assessments
a) The Redeveloper and the Borough acknowledge and agree that a
long term tax abatement as authorized by N.J.S.A 40A:20 -1 et seq. would provide
further assurances of the success of this vital project and would enhance the marketability
of the residential units and commercial space developed and constructed. As such and
provided that the Redeveloper establishes a duly qualified urban renewal entity, the
parties hereto shall negotiate and enter into a Long -Term Tax Exemption Financial
Agreement. The financial terms of the long term tax exemption shall comply with the
business terms set forth in Exhibit F, attached and annexed hereto.
b) Redeveloper agrees that each parcel of property contained in the
Project Premises must be assessed as of October 1 of the pre -tax year pursuant to
N.J.S.A. 54:4 -23. In light of the multi -year construction of the Project, any partial
construction on any parcel of property contained within the Project Premises shall be
assessed in a manner consistent with Legal Requirements for partial assessments.
Borough and Redeveloper agree that the Borough shall not be obliged to use the current
assessed value of the Project Premises (as of the Effective Date) for the assessed value of
the properties at the time they are initially assessed after acquisition by Redeveloper.
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c) Except for credits against Impact Fees as set forth in Section 2.3,
hereof, Redeveloper agrees that there shall be no credits or other reductions in any
governmental fees and costs including but not limited to sewer and /or water service or
connection fees, construction and /or building department fees for the Project and that
Redeveloper's financial commitment to the Project is not conditioned in any way upon
receipt of same.
ARTICLE 7
PROJECT OVERSIGHT
SECTION 7.1 Progress Meetings If requested, the parties shall attend and
participate in progress meetings with representatives of the other party to report on the
status of the Project. Such meetings shall be scheduled on an "as needed" basis but not
more frequently than monthly. Either party shall give the other party not less than fifteen
15) days advanced notice of such progress meeting. The meetings shall be held at the
Project Premises or other mutually acceptable location. If appropriate, the Redeveloper
and /or the Borough shall present oral or written report(s) during such progress meetings
and said topics may include status reports upon any of the material steps of the
redevelopment process.
SECTION 7.2 Progress Reports At the request of either party, the other shall
submit a written report in sufficient detail to advise the requesting party as to the status of
the Project (hereinafter Progress Reports). As appropriate, the report will include a
description of activities completed, the activities anticipated to be undertaken during the
upcoming months, the status of Governmental Approvals and a description of any
anticipated progress problems. In the event that the Redeveloper seeks an extension of
time to complete any material step involved in this project set forth in the Project
Schedule, the Redeveloper shall submit to Borough a written report in sufficient detail
explaining the basis(es) for the requested extension of time and shall attach thereto any
records or documents that tend to support such request. In accordance with the
provisions of Section 2.4, hereof, the Borough shall consider such request for an
extension of time in good faith and shall not unreasonable deny that request.
SECTION 7.3 Access to Project Premises Borough and its authorized
representatives shall have the right to enter the Project Premises upon proper notice given
to the Redeveloper to inspect the site and any and all work in progress for the purpose of
furthering its interest in this Agreement, provided, however, that Borough acknowledges
and understands that the Project Premises will be an active construction site and
Redeveloper shall not be liable or responsible to Borough, its employees or agents for
injury to person or property sustained in connection with such inspections except to the
extent that Redeveloper violates the standard of care owed to invitees. Such entrance
shall be for informational purposes and shall not relieve Redeveloper from its obligation
to implement the Project in accordance with this Agreement. In no event shall Borough's
inspection of the Project be deemed acceptance of the work or be deemed to waive any
right Borough has under this Agreement.
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ARTICLE 8
PERMITTED TRANSFERS
SECTION 8.1 Permitted Transfers. The parties to this Agreement
acknowledge that pursuant to Section 5.1(k), hereof, the Redeveloper has covenanted not
to effectuate or permit any change, directly or indirectly, in the majority ownership or
control of the Redeveloper; or assign or attempt to assign this Agreement or make any
total or partial sale, lease, transfer or conveyance of the whole or any part of its interest
without first having obtained the consent of the Borough to such transaction.
Notwithstanding the restrictions contained in Section 5.1(k), hereof, the following
Transfers are hereby deemed to be Permitted Transfers, and shall serve as exceptions to
the general prohibition set forth in the previous paragraph and in Section 5.1(k), hereof
and shall not require prior approval by Borough: (a) a Public Offering Statement filing
with and approval by the State of New Jersey Department of Community Affairs; (b)
utility and other development easements; (c) conveyances and/ or leases to the ultimate
purchasers/ tenants of any portion of the Project Premises or Improvements constructed
thereupon as part of the Project; (d) a transfer of any interest in this Agreement or in any
portion of the Project Premises to a Transferee provided that at least one (1) member of
the Redeveloper is a majority partner, managing member or majority shareholder in the
Transferee entity and provided the Transferee is subject to the terms of this Agreement;
e) a mortgage or mortgages for the purposes of financing any aspect of the Project
associated with, or incurred in connection with, the acquisition of the properties, the
development and construction of any aspect or phase of the Project or its continued
operation after construction, provided that the occurrence of an Event of Default as to
Redeveloper hereunder constitutes an event of default by Redeveloper under the loan
documents documenting such financing; (f) an assignment and/ or transfer of
Redeveloper's interest in this Agreement to an Affiliate, provided that the Affiliate is
under the Control of the owners of Redeveloper and provided that such new entity is
subject to terms of this Agreement; and (g) transfer of any interest in the Project Premises
to a qualified urban renewal entity.
SECTION 8.2 Notice of Permitted Transfers With respect to any of the
Permitted Transfers listed in Section 8.1, hereof, except for those Permitted Transfers
described in subsection (c) of Section 8.1, hereof, to the extent that such Permitted
Transfer involves a residential or minor commercial conveyance or lease, Redeveloper
shall provide to Borough written notice within thirty (30) days of such Permitted
Transfer, including a description of the nature of such Permitted Transfer, and the
name(s) and address(es) of the Transferees parties, individuals and /or entities involved.
SECTION 8.3 Transfers in Violation of this Agreement Any transfer of the
Redeveloper's interest that is in violation of this Agreement shall entitle the Borough to
seek all remedies under the terms hereof, including the right to declare an Event of
Default pursuant to Article 11, hereof and those remedies available under the law and in
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equity and the Borough's right to seek injunctive relief against the Redeveloper regarding
said Transfer.
ARTICLE 9
REDEVELOPER'S FINANCIAL COMMITMENTS TO THE PROJECT;
PAYMENTS TO BOROUGH
SECTION 9.1 Redeveloper's Financial Commitment Redeveloper represents
and warrants that it has obtained or can obtain and will commit the requisite equity and
debt financing in amounts necessary to implement and complete each phase of the project
and /or the overall Project.
To assure the financial commitment set forth in the preceding paragraph, by the
sixth month following the Effective Date of this Agreement, the Redeveloper agrees to
maintain a minimum Asset Value of One Million ($1,000,000) - Dollars which said
minimum Asset Value includes the value of the land and assets owned or controlled by
the Redeveloper or its Affiliates, any equity contributions of the Redeveloper, and the
quantifiable amounts of money, expended by the Redeveloper or its Affiliates in
furtherance of the development and construction of this Project. Upon the eighteenth
month following the Effective Date of this Agreement the Redeveloper further agrees to
increase its minimum Asset Value to five million ($5,000,000)- Dollars.
SECTION 9.2 Financing and Equity Capital The Redeveloper represents that
it will use commercially reasonable efforts to obtain financing for each phase of the
Project should it determine that such third party financing is fiscally advisable. The
Redeveloper shall advise the Borough of its election to seek such third party financing
when a determination to do so is made, and in doing so shall affirmatively represent that
the Redeveloper shall have at necessary times sufficient funds to complete the relevant
aspect of the Project or of the relevant phase of the Project in accordance with the Project
Schedule. This Agreement and any conveyances of each or any of the parcels of property
contained within the Project Premises are subject to the Redeveloper's representation to
the Borough that it has or will obtain sufficient equity capital to perform and complete
this Project or any relevant phase of the development and construction of the overall
Project or alternatively, that it has or will obtain secured sufficient third party financing if
necessary from a reputable Financial Institution to complete the Project or the relevant
phase of the development and construction of the overall Project.
At the Borough's request the Redeveloper shall submit to the Borough evidence
of either or both firm commitments for mortgage financing from a Financial Institution or
any equity capital necessary to commence the construction of the Improvements and
relevant Infrastructure Improvements constituting the Project or any phase thereof, not
later than fifteen (15) days prior to the date scheduled for Commencement of
Construction.
The Borough agrees to accept a letter, from one or more Financial Institution(s)
which evidences a firm commitment by said Financial Institution to provide mortgage
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financing for the construction of the Improvements and relevant Infrastructure
Improvements in such time and manner so as to enable Redeveloper to adhere to the
Project Schedule.
SECTION 9.3 Governmental Approval Fees To the extent required by federal,
state or local statute, rule, ordinance, etc, the Redeveloper shall be responsible for the
payment of any Governmental Application fees that ordinarily accompany the submission
of the relevant Governmental Application relating to the Project or the relevant phase
thereof. In addition thereto, the Redeveloper shall be responsible for any payments into
escrow for professional review services performed by a Governmental Body in
conjunction with a Governmental Application.
SECTION 9.4 Progress Payments to Borough Redeveloper shall provide the
following payments to the Borough upon the occurrence of the following benchmarks:
a) A payment in the amount of Two Hundred Fifty Thousand
250,000) Dollars shall be made by Redeveloper to the Borough upon the Effective Date
of this Agreement.
b) A payment in the amount of Six Hundred Twenty -Five Thousand
625,000) Dollars shall be paid by Redeveloper to the Borough upon the granting of an
unappealable, perfected Final Site Plan Approval granted by the Planning Board for the
Phase I component of the Project.
c) A payment in the amount of Six Hundred Twenty -Five Thousand
625,000) Dollars shall be paid by the Redeveloper to the Borough upon the granting of
an unappealable, perfected Final Site Plan Approval granted by the Planning Board for
the Phase II component of the Project.
d) Should the Redeveloper elect to proceed with the optional Phase
III component of the Project, a payment in the amount of Five Hundred Thousand
500,000) Dollars shall be paid by the Redeveloper to the Borough upon the granting of
an unappealable, perfected Final Site Plan Approval granted by the Planning Board for
the Phase III component of the Project.
e) For the purposes of determining the Redeveloper's obligation to
pay the Progress Payments specified in subsections (b), (c) and (d) of this Section 9.4, the
phrase "unappealable, perfected site plan approval" shall mean that the statutory time
period during which said preliminary and final site plan approvals granted by the
Borough Planning Board may be appealed has expired absolutely without any pending
appeal. The existence of any imposed conditions to the aforementioned preliminary and
final site plan approvals regarding other Governmental Approvals, permits or other
similar requirements shall not affect the Redeveloper's obligation to make said Progress
Payments other than the existence of any governmental moratorium on sewer or water
service or connections.
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SECTION 9.5 Proiect Costs All costs of implementing and completing the
Project, including Borough Costs as specified in Section 9.6, hereof and the costs
incurred by Redeveloper shall be borne by Redeveloper.
SECTION 9.6 Borough Costs In addition to the payment of Condemnation
Costs in accordance with Section 6.5, Redeveloper shall provide funding to Borough for
all reasonable out -of- pocket costs incurred by Borough in connection with the Project.
These costs are hereinafter referred to as the ` Borough Costs ". Borough Costs shall
include, but not be limited to any fees and costs of any professional, consultant,
contractor or vendor retained by Borough including attorneys, technical consultants,
planners, financial consultants and appraisers, among others, and all out -of- pocket costs
and expenses of Borough but such costs shall not include the costs of wages, salaries and
benefits paid to employees of the Borough providing services in furtherance of the
Project, nor shall such costs include the payment of any duplicative services that the
Redeveloper has already paid for or would be obligated to pay for pursuant to any other
provision of this Agreement or pursuant to the terms of the Interim Cost Agreement, if
already paid thereunder.
SECTION 9.7 Payment of Borough Costs Redeveloper shall pay the Borough
Costs to Borough on a monthly basis within fifteen (15) days after receipt from Borough
of a written invoice for payment of costs incurred by Borough. Should Redeveloper fail
to pay said monthly invoice within fifteen (15) days hereof, Borough, at its option, may
notify Redeveloper that it will no longer accept payment on a monthly basis and
Redeveloper shall be required to immediately deposit with Borough the amount of Fifty
Thousand ($50,000.00) Dollars to be maintained in a separate escrow account by
Borough and to be drawn down by Borough to cover Borough Costs In this event,
Borough shall provide Redeveloper with invoice(s) setting forth those Borough Costs
incurred by Borough that will be drawn down from escrow. Within fifteen (15) days of
the receipt by Redeveloper of written notice from Borough that the amount placed into
escrow has decreased to Five Thousand ($5,000.00) Dollars, Redeveloper shall replenish
the escrow to the amount of Fifty Thousand ($50,000.00) Dollars. If the Borough Costs
incurred by Borough exceed the amount that is at the time in the escrow account
described above, Redeveloper will pay such costs upon fifteen (15) days written notice
from Borough that such costs are due.
SECTION 9.8 Governmental Permit Fees 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 Body for the construction and
development of the Project. Redeveloper shall pay all other permit fees, which include
any permit fees payable by the Borough to all required Governmental Bodies other than
the Borough, or for which the Borough is required to reimburse other Governmental
Bodies or is required to pay other third party contractors retained by or on behalf of the
Borough to perform services which the Borough would otherwise be required to perform
itself.
SECTION 9.9 Impact Fees The Redeveloper agrees to pay the following series
of payments to the Borough and said payments shall be referred to herein as Impact Fees.
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Commercial Space Impact Fee
With regard to the development and construction of the commercial spaces within
each phase of the overall Project, the Redeveloper shall pay to the Borough a one -time
Impact Fee in the amount of one and one -half ($1.50) dollars per net leaseable square
foot of space. The payment of the Impact Fee for any portion of the developed and
constructed commercial space shall be payable to the Borough upon the Redeveloper's
receipt of a Certificate of Occupancy for the relevant commercial space and the execution
of a written lease between the Redeveloper, its agents or assigns and a third party who
shall occupy the subject commercial space or who shall cause such commercial space to
be occupied by others.
Where the rent payment terms contained in any specific written lease for
commercial space is not reasonably related to the prevailing market values for similarly
situated commercial space, the Borough reserves the right to demand that the Impact Fee
set forth in the preceding paragraph be calculated based upon the gross square footage of
the subject space rather than the net leaseable square footage.
Residcntial Unit Impact Fee
With regard to the development and construction of the residential "For Lease"
units, the residential "For Sale" units and any hotel units intended for occupancy by the
public, the Redeveloper shall pay to the Borough a one -time Impact Fee of Two
Thousand Five Hundred ($2,500) Dollars for the first seven hundred (700) units
constructed. The Impact Fee for any such unit shall be payable upon the Redeveloper's
receipt of a Certificate of Occupancy for the subject unit and either the execution of a
written residential lease by a third party who shall occupy the unit or the closing of title
for that unit, as the case may be.
With regard to the development and construction of each unit over and above the
seven hundred (700) units discussed in the preceding paragraph, the Redeveloper shall
pay to the Borough a one -time Impact Fee of Two Thousand Five Hundred ($2,500)
Dollars per unit or one and one quarter (1` /a %) percent of the sale price of the subject
unit, whichever is greater.
The Impact Fee for any unit developed and constructed over and above the first
seven hundred (700) units shall be payable upon the Redeveloper's receipt of a
Certificate of Occupancy for the subject unit and either the execution of a written
residential lease or the closing of title for the subject unit, as the case may be.
In the event that the Redeveloper elects to proceed with the Phase III component
of the overall Project, all Option Extension Payments previously made by the
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Redeveloper to the Borough pursuant to Section 2.3, hereof, shall be applied only toward
those Impact Fees required to be made by the Redeveloper to the Borough for
commercial space and residential units developed and constructed as part of the Phase III
component of the Project pursuant to this Section.
ARTICLE 10
INDEMNIFICATION; INSURANCE
SECTION 10.1 Indemnification
a) The Redeveloper agrees to indemnify and hold harmless and defend the
Borough and hold harmless and defend the Borough Indemnified Parties, and
Redeveloper shall pay any and all liability, loss, cost, damage, claims, judgments or
expenses, of any and all kinds or nature and however arising, which the Borough and /or
the Borough Indemnified Parties may sustain, be subject to or be caused to incur by
reason of any claim, suit or action based upon personal injury, death, or damage to
property, whether real, personal or mixed, relating to the Redeveloper's acts or omissions
in connection with the acquisition, condemnation, condition, use, possession, conduct,
management, planning, design, construction installation, financing, marketing, leasing, or
sale of the Project or based upon or arising out of contracts entered into by the
Redeveloper which directly relate to construction of the Project including but not limited
to any and all claims by workmen, employees and agents of the Redeveloper and
unrelated third parties, which claims arise from the construction of the Project.
It is mutually agreed by Redeveloper and the Borough that neither the Borough,
nor the Borough Indemnified Parties shall be liable in any event for any action performed
by the Redeveloper under this Agreement and that Redeveloper shall save the Borough,
and the Borough Indemnified Parties harmless from any claim or suit in connection with
the Redeveloper's obligations under this Agreement, except for any liability, loss, cost,
damage claims, judgments, or expenses for bodily injury (including death) or property
damage to the extent that said Judgment, Order or Ruling establishes that said liability
arose from or out of or was caused by the negligence, willful misconduct, acts or
omissions of the Borough or the Borough Indemnified Parties. The Redeveloper, at its
own cost and expense, shall defend any and all such claims, suits and actions, but not the
excepted claims set forth in the preceding sentence as described in this Section 10.1,
which may be brought or asserted against the Borough, and/or the Borough Indemnified
Parties; but this provision shall not be deemed to relieve any insurance company which
has issued a policy of insurance as may be provided for in this Agreement from its
obligation to defend Redeveloper, the Borough and any other insured named or named as
an additional insured in such policy of insurance in connection with claims, suits or
actions covered by such policy. Any cost for reasonable attorneys' fees in situations
where it is necessary for the Borough to engage its own attorneys, experts' testimony
costs and all costs to defend the Borough or any Borough Indemnified Party, agents,
servants, or employees shall be reimbursed to it by the Redeveloper in connection with
such defense and indemnification claim.
M
b) With respect to any interest in any parcel of property contained within the
Project Premises and acquired by the Borough through the exercise of its powers of
eminent domain or acquired directly from the third party record owner(s) thereof, the
Redeveloper shall defend, protect, indemnify and hold harmless the Borough and the
Borough Indemnified Parties, from any claims, liabilities, injuries, damages, costs,
actions and expenses including the cost of attorneys fees, which may be sustained as the
result of any environmental conditions on, in, under or migrating to or from the subject
parcel(s) of property contained within the Project Premises to the extent that any such
claim, liability, injury, damage, cost, action and expense, attaches to the Borough as a
result of this Agreement, or the actions performed by the Redeveloper or any of its
consultants or as a result of the Borough's acquisition of the property through
condemnation action or otherwise.
c) In any situation in which the Borough Indemnified Parties are entitled to
receive and desire defense and /or indemnification by Redeveloper, the Borough
Indemnified Parties shall give prompt notice of such situation to Redeveloper. Failure to
give prompt notice to Redeveloper shall not relieve Redeveloper of any liability to
indemnify the Borough Indemnified Parties, unless such failure to give prompt notice
materially impairs Redeveloper's ability to defend. Upon receipt of such notice,
Redeveloper shall resist and defend any action or proceeding on behalf of the Borough
Indemnified Parties, including the employment of counsel reasonably acceptable to the
Borough Indemnified Parties, the payment of all expenses and the right to negotiate and
consent to settlement. 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,
Redeveloper shall not be liable for any settlement of any such action effected without its
consent, but if settled with the consent of Redeveloper or if there is a final judgment
against Redeveloper or the Borough Indemnified Parties in any such action, Redeveloper
shall indemnify and hold harmless the Borough Indemnified Parties from and against any
loss or liability by reason of such settlement orjudgment.
SECTION 10.2 Survival of Indemnity The provisions of Section 10.1, hereof
shall survive the termination of this Agreement if said termination comes about as a result
of an Event of Default by Redeveloper and shall run with the land, provided, however,
that such indemnity shall be binding on Redeveloper itself, each successor in interest to
the Project, the Project Premises, or any part thereof, and each party in possession or
occupancy, respectively only for such period as Redeveloper or such successor or party
shall have title to, or an interest in, or possession of or occupancy of the Project Premises,
the Improvements, Infrastructure Improvements or any part thereof.
SECTION 10.3 Insurance Requirements
a) Prior to any acquisition of any property by Redeveloper,
Redeveloper shall furnish or shall cause to be furnished, to Borough, duplicate originals
of Commercial General Liability Insurance, insuring Redeveloper against losses, costs,
liabilities, claims, causes of action and damages for bodily injury, property damage and
personal injury in the Project Premises or related to the construction thereon, including
39
claims made by subcontractor personnel. Such insurance shall include Blanket
Contractual Liability coverage. All such policies shall be written to apply to all bodily
injury, property damage, personal injury and other customarily covered losses, however
occasioned, occurring during the policy term, and shall be endorsed to add Borough
Indemnified Parties as additional insureds and to provide that such coverage shall be
primary and that any insurance maintained by Borough shall be excess insurance only.
b) Builder's Risk Insurance for the benefit of Redeveloper (subject to
the interests of any Holder), during the term of construction, sufficient to protect against
loss or damage resulting from fire and lightning, the standard extended coverage perils,
vandalism, and malicious mischief.
c) Redeveloper shall also furnish or cause to be furnished to Borough
evidence satisfactory to Borough that Redeveloper and any contractor with whom it has
contracted for the construction of the Project carries workers' compensation insurance as
required by law, and an employer's liability insurance endorsement with customary
limits, and shall be endorsed with a waiver of subrogation clause for Borough.
d) Comprehensive Automobile Liability Insurance covering all
owned hired and non -owned vehicles with at least the following limits of liability: Bodily
Injury Liability and Property Damage Liability — One Million ($1,000,000) Dollars
combined single limit per occurrence.
e) All insurance policies required by this section shall be obtained
from insurance companies licensed in the State of New Jersey and A -rated in Best's
Insurance Guide, or at a similar level in such other industry- accepted review system. All
insurance policies required hereunder shall be kept in force for each structure developed
and constructed, if applicable until a Certificate of Completion for the relevant
structure(s) is issued.
I) All insurance policies required by this Section shall be
nonassessable and shall contain language to the effect that (i) the policies are primary and
noncontributing with any insurance that may be carried by Borough, (ii) the policies
cannot be canceled or materially changed except after thirty (30) days written notice by
the insurer to Borough, and (iii) Borough shall not be liable for any premiums or
assessments. All such insurance shall have commercially reasonable deductibility limits
reasonably satisfactory to Borough.
ARTICLE 11
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.1 Events of Default Prior to completion of the Project or of any
phase thereof, as certified by virtue of the issuance by the Borough of a Certification of
Completion for the last structure(s) to be developed and constructed as part of the
relevant phase, and subject to an event of Force Majeure or other Tolling Event, each of
IN
the following shall constitute an Event of Default (hereinafter referred to as an "Event of
Default "):
a) Redeveloper's Events of Default
1) If the Redeveloper knowingly fails to pay any portion of the
Condemnation Costs pursuant to the terms of Section 6.4 and Section 6.5 hereof, and
such failure shall have continued for a period of forty -five (45) days after written notice
specifying such failure and demanding that same be remedied shall have been given to
the Redeveloper by or on behalf of the Borough; or
2) If the Redeveloper knowingly fails to take title to any of the
parcels of property contained within the Project Premises at the time required by this
Agreement subject to reasonable postponements and delays in the date set for closing of
title and subject to the Redeveloper's election to terminate this Agreement as set forth
herein; or
3) Redeveloper or its successor in interest or assigns shall fail to
proceed with the development and construction of any phase of the overall Project in
accordance with the dates contained in the Project Schedule in a material respect or shall
willfully abandon or suspend construction work for a period of ninety (90) consecutive
days (unless such suspension arises out of an Event of Force Majeure or other Tolling
Event or sanctioned delay set forth in this Agreement), and any such default, violation,
abandonment, or suspension shall not be cured, ended, or remedied within a reasonable
period of time after the service on the Redeveloper of written notice; or
4) Redeveloper or its successor in interest shall knowingly fail to pay the
Borough for any real property taxes within sixty (60) days of when such payment is due,
or shall place thereon any encumbrance or lien unauthorized by this Agreement, or shall
suffer any levy or attachment to be made, or any materialmen's or mechanics' lien, or
any other unauthorized encumbrance or lien to attach and such real property taxes,
encumbrance or lien 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 one hundred twenty (120) days after written demand by the Borough to
do so; or
5) There is, in violation of this Agreement, any transfer (except for
Permitted Transfers) of the fee title to any portion of the Project Premises or any portion
thereof and such violation shall not be cured within sixty (60) days after written demand
served upon Redeveloper by the Borough, unless the time to cure specified is extended in
writing; or
6) If the Redeveloper be liquidated, or shall file a voluntary petition
in bankruptcy or for an arrangement pursuant to the Bankruptcy Act or any similar law,
federal or state, now or hereafter in effect, or shall make an assignment for the benefit of
41
creditors, or shall admit in writing its inability to pay its debts as they become due, or
shall suspend payment of its obligations, or shall take any action in furtherance of the
foregoing; or if the Redeveloper shall consent to the appointment of a receiver, or an
answer proposing the adjudication of the Redeveloper as a bankrupt or its reorganization
pursuant to the Bankruptcy Act or any similar law, federal or state, now or hereafter in
effect, shall be filed in and approved by a court of competent jurisdiction and the order
approving the same shall not be vacated or set aside or stayed within ninety (90) days
from entry thereof, or if the Redeveloper shall consent to the filing of such petition or
answer; or
7) The entry of a judgment in foreclosure or the issuance by the
Redeveloper of a Deed in Lieu of Foreclosure relating to any financing in connection the
overall Project or the relevant phase thereof, or
8) The failure of the Redeveloper to perform any covenant or condition
contained in this Agreement and where such failure is continued for a period of forty -five
45) days following service of a written notice from the Borough specifying the alleged
failure and requesting that such failure be remedied,. provided however that if such
failure of performance of the relevant covenant or condition cannot be reasonably
remedied within the forty -five (45) days following service of the Borough's written
notice it shall not be deemed to be an Event of Default as long as the Redeveloper is
proceeding with due diligence to remedy the same as soon as practicable, but in no event
later than one hundred eighty (180) days after the service of such written notice, unless
otherwise agreed to between the parties.
b) Borough Events of Default
1) If the Borough unreasonably fails or is unable to acquire title to
each or any of the parcels of property contained within the Project Premises and
identified by the Redeveloper in a Property Notice within the proposed completion dates
provided for in the Project Schedule; or
2) If the Borough unreasonably fails to convey good and marketable
title to any of the parcels of property contained within the Project Premises and identified
by the Redeveloper in a Property Notice and which the Borough acquired good and
marketable title on behalf of the Redeveloper within the proposed completion dates
provided for in the Project Schedule excluding delays in obtaining final court orders
vesting title in the Borough, where such delays are beyond the control of Borough; or
3) If the Borough is unable to convey to the Redeveloper good and
marketable title to each or any of the parcels of property contained within the Project
Premises and identified by the Redeveloper in a Property Notice acquired by the Borough
excluding the Permitted Exceptions specified in Section 5.1 hereof); or
4) If the Governing Body adopts any amendment(s) to the
Redevelopment Plan that would render the Redeveloper's proposed Project or any phase
42
thereof or any of the Improvements a prohibited use or where such amendment(s) to the
Redevelopment Plan would materially affect the marketability or feasibility of the
Improvements; or
5) If the Borough fails to reasonably cooperate with the Redeveloper's
efforts to complete and submit any necessary Governmental Application or if the
Borough fails to reasonably cooperate with the Redeveloper's efforts to obtain any of the
necessary Governmental Approval(s), provided that Redeveloper is diligently pursuing
said Governmental Approval(s); or
6) If the Borough knowingly fails to provide the Redeveloper with any
documents, reports, information, studies or other items in its possession that pertain to
any of the parcels of property contained within the Project Premises or to contain relevant
information material to the Redeveloper's decision to proceed with the Project or any
phase thereof, or
7) If the Borough fails to issue a Certificate of Completion for any
structure(s) within any phase of the overall Project, pursuant to Section 2.18, hereof; or
8) The failure of the Borough to perform any covenant or condition
contained in this Agreement and where such failure is continued for a period of forty -five
45) days following receipt of a written notice from the Redeveloper specifying the
alleged failure and requesting that such failure be remedied; provided however that if
such failure of performance of the relevant covenant or condition cannot be reasonably
remedied within the forty -five (45) days following receipt of the Redeveloper's written
notice it shall not be deemed to be an Event of Default as long as the Borough is
proceeding in good faith to remedy same.
SECTION 11.2 Remedies Upon Event Of Default Prior to Redeveloper's
Acquisition of Project Premises.
a) Remedy. Except as may otherwise be provided in this Agreement, in the event
of an Event of Default by any party hereto prior to the initial acquisition of the relevant
portion of the Project Premises by Redeveloper, the non - defaulting party may terminate
this Agreement and /or take whatever action, at law or in equity, it may deem desirable,
including the seeking of damages, or institute such proceedings as may be necessary or
desirable in its opinion to cure and remedy such default or breach, including, but not
limited to, proceedings to compel specific performance by the party in default or breach
of its obligations.
b) Remedies in the Event of Termination of Agreement In the event that this
Agreement is terminated by Borough pursuant to this Article 11, the Redeveloper's
designation as the redeveloper of the Project Premises shall in that event automatically
terminate, and Borough shall have the right to withdraw, to the extent possible, from
lease agreements, purchase agreements and condemnation proceedings, if any,
theretofore undertaken. In such event that Borough is unable, for any reason, to withdraw
43
from any lease agreements, purchase agreements and/ or condemnation proceedings, then
Redeveloper shall indemnify and hold Borough harmless from and against any costs,
fees, fines, penalties and/ or damages incurred by or imposed upon Borough in
connection with same. The Redeveloper shall also pay over to Borough all of the costs
and /or damages (including reasonable counsel fees) incurred by Borough on account of
the default of the Redeveloper and /or arising out of or resulting from the withdrawal of
Borough from any lease agreement, purchase agreement and/or condemnation
proceeding. Borough shall have the right to apply to the aforementioned costs or damages
incurred by Borough as aforesaid, any funds of the Redeveloper in the hands of Borough
at the time of such default and termination or returned to Borough as the result of
Borough's termination or withdrawal from any lease agreement, purchase agreement
and /or condemnation proceeding.
SECTION 11.3 Remedies Upon Events of Default or Termination After
Commencement of Property Acquisition by Redeveloper
a) Redeveloper Remedies In the event of an Event of Default by Borough
subsequent to the initial acquisition of any portion of the Project Premises by
Redeveloper, the Redeveloper may take whatever action, at law or in equity, it may deem
desirable, including the seeking of damages, or institute such proceedings as may be
necessary or desirable in its opinion to cure and remedy such default or breach, including,
but not limited to, proceedings to compel specific performance by Borough.
b) Borough Remedies
i) In the event that, subsequent to the initial acquisition of any
portion of the Project Premises and prior to the issuance of the final Certificate of
Completion for the Project, an Event of Default by Redeveloper occurs, then 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 Agreement, including the
seeking of damages. Further, 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 Agreement and the Redeveloper's designation as the redeveloper of the Project
Premises, in which case title to the portion or portions of the Project Premises conveyed
by Borough to Redeveloper and with respect to which no Certificate of Completion has
been issued shall revert to Borough or its designee pursuant to reverter clauses in such
conveyance documents without any further act on Borough's part and the estate conveyed
by Borough by deed to Redeveloper shall immediately terminate and revert in Borough.
It is the intent of this provision, together with other provisions of this Agreement, that the
conveyance of all or any portions of the Project Premises by Borough to Redeveloper
shall be made upon a condition subsequent to the effect that upon the occurrence of an
Event of Default by Redeveloper prior to the issuance of Certificates of Completion with
respect to any relevant structure(s) within the corresponding phase, Borough at its option
may, in accordance with this Section 11.3, unilaterally declare a reversion of the title, and
all the rights and interests in and to such portion of the Project Premises to Borough, and
44
that such title and all rights and interests to and in such portion of the Project Premises
shall revert to Borough without further action. However, such condition subsequent and
any reversion of title as a result thereof in Borough (a) shall always be subject to and
limited by, and shall not defeat, render invalid, or limit in any way (i) the lien of any
mortgagee authorized by this Agreement; and (ii) any rights or interests provided in this
Agreement for the protection of Holders and (b) shall not apply to portions of the Project
Premises for which a Certificate of Completion has been issued by Borough. Borough's
right to so declare such reversion of the title is not intended as a waiver by Redeveloper
of any rights it may have to challenge the validity of such a declaration if Redeveloper
believes such right is improperly exercised.
c) Replacement of the Redeveloper Upon the occurrence of an Event of Default
by Redeveloper subsequent to the initial acquisition of any portion of the Project
Premises, Borough shall, pursuant to its responsibilities under state law, use reasonable
efforts to designate a replacement developer for the Project Premises or portion thereof
subject to such permitted mortgage liens as may exist against the Project and the rights
of a Holder as set forth herein). Such replacement developer shall be designated as soon
as possible and in such manner as Borough shall find feasible and consistent with the
objectives of the Redevelopment Law and of the Redevelopment Plan, to a qualified and
responsible party or parties as determined by Borough, who will assume the obligation of
completing the Project or such other improvements in its stead as shall be satisfactory to
Borough and in accordance with the uses specified for the Project Premises, in this
Agreement. Redeveloper shall deliver to such replacement developer assignments of all
other rights and agreements pertaining to the Project. Nothing herein shall prevent the
Borough or other governmental entity from performing the functions of a replacement
developer. Any proceeds resulting from the designation of the replacement developer
shall be applied:
i) First, to all reasonable costs and expenses incurred by Borough,
including but not limited to legal fees and related expenses incurred by Borough in
connection with the Project; all taxes, assessments, any and all municipal fees and water
and sewer charges, if any, with respect to the Project Premises or any part thereof; any
payments made or necessary to be made to discharge any encumbrances or liens existing
on the Project Premises at the time of Borough's reacquisition of the Project Premises
and Improvements or to discharge or prevent from attaching, or being made, any
subsequent encumbrances or liens due to obligations, defaults, or acts of the Redeveloper,
its successors or transferees; any expenditures made or obligations incurred with respect
to the completion of the Project or any part thereof; and any amounts otherwise owed to
Borough by the Redeveloper and its successors or transferees in accordance with the
terms of this Agreement or as a result of a final decision of a court of competent
jurisdiction; and
ii) Second, to reimburse the Redeveloper, its successor or transferee,
up to the amount equal to the Redeveloper's actual costs (exclusive of profit) associated
with the Project, including land acquisition, engineering, planning, site improvement,
marketing and other development costs paid for by the Redeveloper; and
45
iii) Any remaining balance after such reimbursement shall be remitted
to Borough as its property.
SECTION 11.4 Tolling Events; Events of Force Maieure The parties to this
Agreement acknowledge and agree that the term Tolling Event shall have the following
meaning when used throughout this document: (i) an Event of Default or an act or
omission on the part of either the Borough or the Redeveloper, that has a material and
adverse effect on the other party's ability to perform any obligation, requirement,
commitment or responsibility prescribed under the terms of this Agreement; or (ii) any
extension granted by either party to the other party, to extend any proposed completion
date contained in the Project Schedule.
The performance or non - performance by the parties or either of them of any
obligation, requirement, commitment or responsibility set forth in this Agreement shall
not be deemed to be an Event of Default where such performance, failure of performance
or delay in performance is /are the result of a Tolling Event or an Event of Force Majeure
provided however that the Tolling Event or the Event of Force Majeure was not the result
of any unlawful action or non - action of the party relying on such Tolling Event or Event
of Force Majeure as justification for the performance, failure of performance or delay in
performance of the subject obligation, requirement, commitment or responsibility
SECTION 11.5 No Waiver of Rights and Remedies by Delay Any delay by
an aggrieved party in instituting or prosecuting any actions or proceedings or otherwise
asserting its rights under this Agreement shall not operate as a waiver of such rights or
shall not deprive the aggrieved party of or limit the aggrieved party's rights in any way (it
being the intent of this provision that the aggrieved party should not be constrained [so as
to avoid the risk of being deprived or limited in the exercise of the remedies provided
herein by those concepts of waiver, laches, or otherwise] to exercise such rights at a time
when the aggrieved party may still hope otherwise to resolve the problems created by the
default involved); nor shall any waiver in fact made by the aggrieved party with respect
to any specific default by the defaulting party under this Agreement be considered or
treated as a waiver of the rights of the aggrieved party with respect to any other defaults
by the defaulting party under this Agreement or with respect to the particular default
except to the extent specifically waived in writing.
SECTION 11.6 Rights and Remedies Cumulative The rights and remedies of
the parties to this Agreement, whether provided by law or by the terms of this
Agreement, shall be cumulative, and the exercise by either party of any one or more of
such remedies shall not preclude the exercise by it, at the same or different times, of any
other such remedies for the same default or breach or of any of its remedies for any other
default or breach by the other party. No waiver made by either such party with respect to
the performance, or manner or time thereof, or any obligation of the other party or any
condition to its own obligation under this Agreement shall be considered a waiver of any
rights of the party making the waiver with respect to the particular obligation of the other
party or condition to its own obligation beyond those expressly waived in writing and to
the extent thereof, or a waiver in any respect in regard to any other rights of the party
making the waiver or any other obligations of the other party.
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ARTICLE 12
MORTGAGE FINANCING; RIGHTS OF MORTGAGEE
SECTION 12.1 Mortgage Financing Neither Redeveloper nor any successor in
interest to the Project Premises, or any part thereof, shall engage in any financing or any
other transaction creating any mortgage or other encumbrance or lien upon the same,
whether by express agreement or operation of law, or suffer any encumbrance or lien
other than liens for governmental impositions) to be made or attach to the Project
Premises, except as may be reasonably required for the purpose of obtaining funds for the
acquisition of the Project Premises, construction of the Project, or continued operation of
the project or portion thereof after the completion of construction, provided, however,
that upon the issuance of a Certificate of Completion, such prohibition shall no longer
apply with respect to the corresponding structure(s) to which the Certification(s) of
Completion applies. Redeveloper, or its successor in interest, shall notify Borough in
advance of any such financing secured by a mortgage or other lien instrument which it
proposes to enter into with respect to the Project or any part thereof (the mortgagee
thereunder or its affiliate, herein identified as a " Holder ") and, in any event, Redeveloper
shall promptly notify Borough of any encumbrance or lien (other than liens for
governmental impositions) that has been created on or attached to any portion of the
Project Premises, whether by voluntary act of Redeveloper or otherwise, upon obtaining
knowledge or notice of same. The provisions of this Agreement shall not be deemed to
grant to Borough the right to approve or review the terms of any such proposed financing.
SECTION 12.2 Notice of Default to Redeveloper and Right to Cure
Whenever Borough shall deliver any notice or demand to Redeveloper with respect to
any breach or Event of Default by Redeveloper under this Agreement, Borough shall at
the same time deliver to each Holder a copy of such notice or demand; provided that
Redeveloper has delivered to the Borough a written notice of the name and address of
such Holder. Each such Holder shall (insofar as the rights of Borough are concerned)
have the right at its option within ninety (90) days after the receipt of such notice, to cure
or remedy, or to commence to cure or remedy, any such Event of Default which is subject
to being cured and to add the cost thereof to the debt and the lien which it holds. If such
Event of Default shall be an Event of Default which can only be remedied or cured by
such Holder upon obtaining possession, such Holder may seek to obtain possession of the
Project Premises (or portion to which its mortgage relates) with diligence and continuity
through a receiver or otherwise, and shall remedy or cure such Event of Default within
ninety (90) calendar days after obtaining possession. In the case of an Event of Default
which cannot with diligence be remedied or cured, or the remedy or cure such Event of
Default of which cannot be commenced, within such ninety (90) days period, such
Holder shall have such additional time as reasonably necessary to remedy or cure such
default with diligence and continuity.
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SECTION 12.3 Guarantee of Construction or Completion A Holder shall in
no manner be obligated by the provisions of this Agreement to construct or complete the
Project (or portion to which its mortgage relates), or to guarantee such construction or
completion; nor shall any covenant or any other provisions be construed so to obligate a
Holder. Notwithstanding the foregoing, nothing contained in this Agreement shall be
deemed to permit or authorize such Holder to undertake or continue the construction or
completion of the Project, or portion to which its mortgage relates (beyond the extent
necessary to conserve or protect the Holder's security, including the Improvements or
construction already made), without the Holder first having expressly assumed
Redeveloper's obligations to Borough with respect to the Project (or portion to which its
mortgage relates) by written agreement reasonably satisfactory to Borough.
SECTION 12.4 Foreclosure If a Holder forecloses its mortgage secured by the
Project Premises (or portion to which its mortgage relates), or takes title to the Project
Premises (or portion to which its mortgage relates) by deed -in -lieu of foreclosure or
similar transaction (collectively a " Foreclosure "), the Holder shall have the option to
either (i) sell the Project Premises (or portion to which its mortgage relates), as
applicable, to a responsible Person reasonably acceptable to Borough, which Person shall
assume the obligations of Redeveloper under this Agreement in accordance with law,
and/or (ii) itself assume the obligations of Redeveloper under this Agreement in
accordance with law. In the event of a Foreclosure and provided the Holder or the
purchaser is in compliance with this Agreement, Borough shall not seek to enforce
against the Holder or purchaser of the Project Premises or portion thereof any of the
remedies available to Borough pursuant to the terms of this Agreement available in
connection with the events preceding the Foreclosure. The Holder, or the Person
assuming the obligations of Redeveloper as to the Project Premises or portion thereof to
which the subject mortgage relates affected by such Foreclosure or sale, in that event
must agree to complete the Project in the manner provided in this Agreement, but subject
to reasonable extensions of the relevant proposed completion dates as set forth in the
Project Schedule, and shall submit evidence reasonably satisfactory to Borough that it has
the qualifications and financial responsibility necessary to perform such obligations. Any
such Holder or Person assuming such obligations of Redeveloper, properly completing
the Improvements shall be entitled to Certificates of Completion in accordance with the
provisions of this Agreement. Nothing in this Agreement shall be construed or deemed
to permit or to authorize any Holder, or such other Person assuming such obligations of
Redeveloper, to devote the Project Premises, or any portion thereof, to any uses, or to
construct any Improvements thereon, other than those uses or Improvements provided for
or authorized by this Agreement.
SECTION 12.5 Borough's Option to Pav Mortgage Debt or Purchase Land
a) In any case where, subsequent to an Event of Default by
Redeveloper under this Agreement and /or Foreclosure, the Holder:
i) has, but does not exercise, the option to construct or
complete the Project or part thereof covered by its mortgage or to which it has obtained
M
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
ii) undertakes construction or completion of the Project but
does not complete such work within a reasonable period, and such Event of Default shall
not have been cured within sixty (60) calendar days after written demand by Borough so
to do ((i) and (ii) each a " Holder Failure ");
Then 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 Premises (or part thereof) has vested in such
Holder by way of foreclosure or action in lieu thereof, Borough shall be entitled, at its
option, to a conveyance to it of the Project Premises or part thereof (as the case may be)
upon payment to such Holder of an amount equal to the sum of. (a) 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); (b) all expenses with respect to the foreclosure,
including reasonable attorney's fees and expenses; (c) 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; (d) the costs incurred by such Holder in making
any of the Improvements; and (e) 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 with respect to any phase of development of the
Project by Redeveloper shall provide for the foregoing.
b) The foregoing provisions of Section 12.5(a) shall not apply in the
event of a Holder Failure if and to the extent Borough chooses to acquire the Project
Premises or portion thereof by condemnation, which right Borough hereby reserves.
c) Borough shall reasonably cooperate with a Holder to modify the
provisions of this Article if reasonably requested by Holder, provided, however, such
modifications shall not substantially reduce the rights of Borough hereunder.
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices Formal notices, demands and communications between
Borough and Redeveloper and from Redeveloper to the Borough or from Borough to the
Redeveloper (as required herein) shall be deemed sufficiently served if dispatched to the
address set forth below by registered or certified mail, postage prepaid, return receipt
requested, and shall be deemed delivered upon receipt. Formal notices may also be sent
by a commercial overnight delivery service with package tracking capability and for
which proof of delivery is available. In this case such notice is deemed effective upon
49
delivery. Such written notices, demands and communications may be sent in the same
manner to such other addresses as either party may from time to time designate by
written notice. Informal communications may be carried out by regular mail.
Copies of all formal notices, demands and communications shall be sent as
follows:
If to Redeveloper
Carteret Landing, L.L.C.
90 Woodbridge Center Drive, Suite 60
Woodbridge, New Jersey 07095
Attn: Jeremy Halpee
Atlantic Realty Development Corporation
90 Woodbridge Center Drive, Suite 60
Woodbridge, New Jersey 07095
Attn: Jeremy Halpern
BNE Associates
16 Microlab Road, Suite A
Livingston, New Jersey 07039
Attn: Larry Pantirer
Roseland Property Company
233 Canoe Brook Road
Short Hills, New Jersey 07078
Attn: Carl Goldberg
Weiner Lesniak, LLP
629 Parsippany Road
Parsippany, New Jersey 07054
Attn: Joseph F. Ranieri, Esq.
If to the Borough
Mayor and Council
Carteret Borough Hall
61 Cooke Avenue
Carteret, New Jersey 07008
cc: Kathleen M. Barney, Clerk
Carteret Borough Hall
61 Cooke Avenue
Carteret, New Jersey 07008
50
cc: Robert J. Bergen, Esq.
Borough Attorney
Carteret Borough Hall
61 Cooke Avenue
Carteret, New Jersey 07008
cc: Joseph J. Maraziti, Jr., Esq.
Maraziti, Falcon & Healey, LLP
150 John F. Kennedy Parkway
Short Hills, New Jersey 07078
SECTION 13.2 Non - Liability of Officials and Employees of Borough No
member, official or employee of Borough shall be personally liable to Redeveloper, or
any successor in interest, in the event of any Event of Default or breach by Borough, or
for any amount which may become due to Redeveloper or its successor, or on any
obligation under the terms of this Agreement.
SECTION 13.3 Non - Liability of Officials and Employees of Redeveloper No
member, officer, shareholder, director, partner or employee of Redeveloper shall be
personally liable to Borough, or any successor in interest, in the event of any Event of
Default or breach by Redeveloper or for any amount which may become due to Borough,
or its successor, on any obligation under the terms of this Agreement.
SECTION 13.4 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 Premises (or portion thereof), the other party shall issue a
signed estoppel certificate either stating that this Agreement is in full force and effect and
that there is no default or breach under this Agreement (nor any event which, with the
passage of time and the giving of notice would result in a default or breach under this
Agreement), or stating the nature of the default or breach or event, if any. In the event
the estoppel certificate discloses such a default, breach or event, it shall also state the
manner in which such default, breach and/or event may be cured. No more than a
reasonable number of estoppel certificates may be requested per year.
SECTION 13.5 Lender Changes If Redeveloper's Financial Institution
require(s) a change in the terms of this Agreement, Borough shall reasonably cooperate
with Redeveloper in approving such change, so long as such change, if any, does not
modify or change the substantial rights or obligations of Borough as set forth in this
Agreement and further provided that such change reflects market terms customarily
available for projects of this type and scope. In addition, Borough shall enter into such
agreements as the Financial Institution(s) (or the Redeveloper's equity participants) may
reasonably require provided that such agreement shall not be inconsistent with the terms
of this Agreement or the Redevelopment Plan (i.e., shall not increase Borough's
responsibilities or decrease its benefits hereunder).
SECTION 13.6 No Brokerage Commissions Borough and Redeveloper each
represent one to the other that no real estate broker initiated, assisted, negotiated or
51
consummated this Agreement as broker, agent, or otherwise acting on behalf of either
Borough or Redeveloper, and Borough and Redeveloper shall indemnify each other with
respect to any claims made by any person, firm or organization claiming to have been so
employed by the indemnifying party.
SECTION 13.7 Provisions Not Merged With Deeds To the extent that the
provisions of this Agreement are intended to bind Redeveloper's assigns and successors,
its provisions shall not be merged by reason of any deeds transferring title to any portion
of the Project Premises from Redeveloper or any successor in interest, and any such
deeds shall not be deemed to affect or impair the provisions and covenants of this
Agreement.
SECTION 13.8 No Consideration For Redevelopment Agreement
Redeveloper warrants it has not paid or given, and will not pay or give, any third person
any money or other consideration in connection with obtaining this Agreement, other
than normal costs of conducting business and costs of professional services such as
architects, engineers, financial consultants and attorneys. 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 Agreement.
SECTION 13.9 Successors and Assigns This Agreement shall be binding upon
and inure to the benefit of the permitted successors and assigns of the parties hereto, and
their heirs, executors, and administrators.
SECTION 13.10 Exhibits Incorporated All Exhibits attached hereto and/or
referred to in this Agreement are hereby incorporated into this Agreement as though set
forth in full.
SECTION 13.11 Titles of Articles and Sections The titles of the several
Articles and Sections of this Agreement are inserted for the convenience of reference
only and shall be disregarded in construing or interpreting any of its provisions.
SECTION 13.12 Severability If any term or provision of this Agreement or the
application thereof shall to any extent be held to be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to
circumstances other than those to which it is invalid or unenforceable, shall not be
affected thereby, and each other term and provision of this Agreement shall be valid and
shall be enforced to the extent permitted by law.
SECTION 13.13 Enforcement by Borough It is intended and agreed that
Borough and its successors and assigns shall be deemed beneficiaries of the agreements
and Covenants and Restrictions set forth in this Agreement, both for and in their own
right but also for the purposes of protecting the interests of the community and other
parties, public or private, in whose favor or for whose benefit such agreements and
Covenants and Restrictions have been provided. Such agreements and Covenants and
Restrictions shall run in favor of Borough for the entire period during which such
agreements and Covenants and Restrictions shall be in force and effect. Borough shall
52
have the right, in the event of any breach of any such agreement or Covenant and
Restrictions, 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 Covenants and Restrictions, to which they or any other beneficiaries of such
agreement or Covenant and Restriction may be entitled.
SECTION 13.14 Modification of Agreement No modification, waiver,
amendment, discharge, or change of this Agreement shall be valid unless the same is in
writing, duly authorized, and signed by the party against which the enforcement of such
modification, waiver, amendment, discharge, or change is or may be sought.
SECTION 13.15 Execution of Counterpart This Agreement may be executed
in one (1) or more counterparts. This Agreement shall become binding on the parties and
such counterparts shall constitute one (1) and the same instrument, upon the Effective
Date, as this phrase is defined elsewhere in this Agreement.
SECTION 13.16 Drafting Ambiguities; Interpretation In interpreting any
provision of this Agreement, no weight shall be given to, nor shall any construction or
interpretation be influenced by, the fact that counsel for one of the parties drafted this
Agreement, each party acknowledging that it and its counsel have had an opportunity to
review this Agreement and have contributed to the final form of same.
SECTION 13.17 Time Period for Notices All notices to be given hereunder
shall be given in writing in conformance with Section 13.1 hereof, and, unless a certain
number of days is specified, within a reasonable time.
SECTION 13.18 Waivers and Amendments in Writing All waivers of the
provisions of this Agreement must be in writing and signed by the appropriate authorities
of Borough and Redeveloper and all amendments hereto must be in writing and signed by
the appropriate authorities of Borough and Redeveloper. The waiver by either party of a
default or of a breach of any provision of this Agreement by the other party shall not
operate or be construed to operate as a waiver of any subsequent default or breach.
SECTION 13.19 Conflict of Interest No member, official or employee of
Borough shall have any direct or indirect interest in this Agreement, nor participate in
any decision relating to the Agreement which is prohibited by law.
SECTION 13.20 Governing Law This Agreement shall be governed by and
construed in accordance with the applicable laws of the State of New Jersey.
SECTION 13.21 Withholding of Approvals All approvals, consents and
acceptances required to be given or made by any person or party hereunder shall not be
unreasonably withheld or delayed unless specifically stated otherwise.
SECTION 13.22 Recitals Incorporated; Definitions Incorporated The
Recitals appearing in the Preamble of this Agreement are hereby incorporated by
reference into this Agreement, as if set forth in full. The Definitions contained within
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this Agreement are hereby incorporated by reference into this Agreement, as if set forth
in full.
THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.
SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties hereto have caused this Redevelopment
Agreement to be executed, all as of the date first above written.
Witness
By:
Witness
By:
Witness
By
f
Attest:
In
Kathleen Barney
Borough Clerk
CARTERET LANDING, LLC
C arl Goldberg
CARTERET LANDING, LLC
4my Halpern .__.
CARTERET LANDING, LLC
BY % '
arty Pannyer
BOROUGH OF CARTERET
Mayor
X: \wp- data \cor\matters \18760 Redevelopment Agreement 5 -11 -04 v6 Final. DOC
J.
55
STATE OF NEW JERSEY
COUNTY OF MIDDLESEX
ss:
I CERTIFY that on 0,r 2004, <G.t - t .,,- personally
came before me, and this person acknowledged under oath to my satisfaction that:
a) this person is Managing Member of Carteret Landing, LLC, the
entity named in this document;
b) this document was signed and delivered by
as his voluntary act and deed duly authorized by the Company; an
c) this person signed this proof to attest to the truth of the facts.
r
l
ttorney at Law of New Jersey
56
STATE OF NEW JERSEY
ss:
COUNTY OF MIDDLESEX
y
I CERTIFY that on 2004, F47 °rn ;personally
came before me and this person acknowledged under oath to my satisfaction that:
a) this person is Borough Clerk of the Borough of Carteret, the municipal
corporation named in this document;
b) this person is the attesting witness to the signing of this document by the
proper corporate office who is Daniel J. Reiman, Mayor of the Borough of Carteret;
c) this document was signed and delivered by the Borough of Carteret, its
voluntary act duly authorized by a proper Resolution of the Governing Body;
d) this person knows the proper seal of the Borough of Carteret which was
affixed to this document; and
e) this person signed this proof to attest to the truth of these facts.
Kafhleen M. Barney, Borough Clerk' — 7'--
Signed and sworn before me
on jY' c, U-- 2004
i (-
Robert J. Bergen, Esq.
Attorney at Law
State of New Jersey
57
EXHIBIT A
CHROME WATERFRONT REDEVELOPMENT AREA
Pursuant to the Chrome Waterfront Redevelopment Investigation Report
performed on behalf of the Borough of Carteret by Schoor DePalma, Inc., 200 State
Highway Nine, P.O. Box 900, Manalapan, New Jersey; and adopting Ordinance of the
Governing Body of the Borough of Carteret, the Chrome Waterfront Redevelopment
Area consists of the following lands and Improvements:
Tax Block Tax Lot Street Address
4 1 4000 Industrial Avenue
4 2 (C.O.100)100 Middlesex Avenue
4 2 (C.O.200)100 Middlesex Avenue
4 2 (C.O.300)100 Middlesex Avenue
4 2 (C.O.400)100 Middlesex Avenue
4 3 off) Middlesex Avenue
4 4 Middlesex Avenue
5.1 1 230 Roosevelt Avenue
5.1 1.02 Roosevelt Avenue
5.1 1.03 186 Roosevelt Avenue
5.1 2 220 Roosevelt Avenue
5.1 5 180 Roosevelt Avenue
5.1 6 182 Roosevelt Avenue
5.02 1.01 off) Roosevelt Avenue
5.02 2.01 off) Roosevelt Avenue
5.02 1.02 off) Roosevelt Avenue
5.02 1.03 off) Roosevelt Avenue
6.1 1 339 Roosevelt Avenue
6.2 12 259 Roosevelt Avenue
500 Various Parcels Consolidated Rail
Corporation Rights of Way
W
EXHIBIT B
CHROME WATERFRONT REDEVELOPMENT PLAN
The Chrome Waterfront Redevelopment Plan attached and annexed to this Exhibit B was
duly adopted by Ordinance of the Borough of Carteret Borough Council on February 20,
2003.
59
7
Redevelopment Plan
Chrome Waterfront Redevelopment Area
Situated in the
Prepared by
SCHOOR DEPALMA INC.
200 Route 9 North
Manalapan, NJ 07726
February 2003
David G. R
David G. Roberts, P.P., A.I.C.P., CLA
Professional Planner, N.J. License # 03081
BOROUGH OF CARTERET
MIDDLESEX COUNTY, NEW JERSEY
TABLE OF CONTENTS
SECTION1 - INTRODUCTION .................................................................... ..............................
1.1 BACKGROUND ............................................................................. ..............................
1.2 STATUTORY BASIS FOR THE REDEVELOPMENT PLAN ..... ..............................2
1.3 DESCRIPTION OF THE CHROME WATERFRONT REDEVELOPMENT AREA
Redevelopment Area) ................................................................................. ..............................
SECTION 2 - REDEVELOPMENT GOALS AND POLICIES ..................... ..............................5
SECTION 3 - ACQUISITION AND RELOCATION .................................... ..............................7
3.1 Properties to be Acquired ................................................................. ..............................
3.1 Relocation ........................................................................................ ..............................
SECTION 4 - RELATIONSHIP TO OTHER PLANS ...................................9
4.1 Municipal Land Use and Zoning .....................................................9
4.2 Sewer and Water ..............................................................................
4.3 Transportation and Public Transportation .......................................9
4.4 Relation to Master Plans of Adjacent Municipalities ......................9
4.5 Relation to County Plan and State Development Plan .....................9
4.5.1 The Strategic Plan for Middlesex County's Urban Center ...........9
4.5.2 The State Development and Redevelopment Plan ......................10
SECTION 5 - REDEVELOPMENT PLAN ...................................................12
5.1 Land Use Options ...........................................................................
5.2 Redevelopment Standards ...............................................................
5.2.4 - Bulk Standards .................................................................................
5.3 - Additional Requirements ....................................................................
5.3.1 Signs: ...........................................................................................
5.3.2 Parking, Loading, Access: .............................................................15
5.3.3 Non - Applicable Sections: ........................................................................................17
5.3.4 Stormwater Management: ........................................................................................17
5.3.5 Street, Curbs and Sidewalks: ...................................................................................17
5.3.6 Landscaping, Buffers, Pedestrian Circulation and Amenities:17
SECTION 6 — APPROVALS/INFRASTRUCTURE IMPROVEMENTS .....17
6.1 Subdivision/Site Plan ......................................................................
6.2 Infrastructure Improvements ...........................................................
SECTION 7 — CERTIFICATE OF COMPLETION ......................................18
7.1 Certificate of Completion ...............................................................18
LIST OF EXHIBITS
Exhibit No.
1 Chrome Waterfront Redevelopment Concept Plan
2 Acquisition Parcels Map
3 Land Use Plan Map
4 Zoning Map
LIST OF FIGURES
Fieure No. Description
1.1 Carteret Zoning Map
1.2 Existing Permitted Uses in the LI and HI -B Zones
1.3 Waterway Linkage to Manhattan and Jersey City
5.1 Permitted Uses RM and PWD (Planned Waterfront
Development) Areas
5.2.4 Bulk Standards in Redevelopment Area
SECTION 1 - INTRODUCTION
1.1 BACKGROUND
The Borough of Carteret, Middlesex County ( "Carteret ") consists of a mix of residential
neighborhoods, commercial properties and significant industrial areas. Carteret has an
industrial background in part due to its waterfront Iocation on the Arthur Kill and the
Rahway River. The Chrome Waterfront Redevelopment Area (hereinafter referred to as
Redevelopment Area ") is located in the southeasterly section of the Borough,
proximate to the Arthur Kill waterway, Noe's Creek, Industrial Road and RooseveltAvenue. Residential and commercial sections of the "Chrome" neighborhood are
located directly to the southwest. Directly to the east across the Arthur Kill is Staten
Island, New York, with the predominant and most visible feature being the massive
Fresh Kills Landfill.
The Redevelopment Area was dominated in the early part of the 20` Century by the
American Agricultural Chemical Co., which had used this site for fertilizer
manufacturing and storage up until approximately thirty years ago. Most buildings were
removed from the site by the early 1970's. The property is now owned by E.I. DuPont
De Numours & Co., which is completing environmental remediation activities under the
supervision of the New Jersey Department of Environmental Protection. Returning this36acresofvacantwaterfrontpropertytoproductiveusebenefitingBoroughresidentsis
an immediate goal of the Borough.
In addition, the industrial development along its waterways has traditionally precluded
public access to them by Borough Residents for recreational purposes. Fostering an
enhanced relationship between the Arthur Kill waterfront area and Borough residents
presents a substantial challenge, particularly based on established property ownershippatternsandlimitedaccessibility. However, approximately 15 years ago, the Borough
obtained an 17 -acre parcel from the Formost Corporation once used by Ichabod T.
Williams Logs and Lumber (defunct) for loading/offloading of barges on the Arthur
Kill. Much of this acreage consists of water area and wetlands, though there are upland
areas comprising vegetation, natural areas and a walking trail. Regrettably, access by
residents to this Borough -owned area is limited. Motorists must drive across privately
owned land to access the waterfront, and parking areas on privately owned land have not
been suitably improved to address parking needs. While a walking trail facilitates
pedestrian access to the waterfront, the trail is within a remote, narrow strip of land that
is not adequately illuminated or identified.
Despite the current practical limitations for gaining access to the Borough's waterfront
property, the Borough has developed a laudable concept plan that focuses on recreation,
parking and overall user - friendliness. The Borough envisions new, water- oriented
facilities such as an upgraded floating dock, fishing pier, and boat launch. These
amenities will replace an existing concrete dock (previously used for heavy industrial
activities) that was in an acute state of disrepair and has recently been removed.
Improved vehicular access, watercraft access and an expanded public parking area are
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ
desired.
Finally, other planning initiatives underway have direct relationships to the revitalization
of the Redevelopment Area. Efforts towards revitalizing sections of the nearby Chrome
neighborhood, particularly within the Lower Roosevelt Avenue Business District, create
opportunities to rethink the waterfront area's relationship to more densely developed
areas of the Borough. For instance, the recent construction of the Meridian Square
rental apartment community on an environmentally constrained site adjacent to the
Redevelopment Area provides the economic impetus for the Borough to link Chrome's
housing and revitalization initiatives to the waterfront area. Moreover, there is an
opportunity to foster consistency with the County Planning Board's Strategic Plan,
which is under development. The Strategic Plan envisions a coastal trail extending
between Joseph Medwick Park along the Rahway River to the Arthur Kill, and
eventually south to the Raritan Bay. This coastal trail would facilitate improved
waterfront access for residents of the Borough and of the region, and would pass directly
through the Redevelopment Area.
This Redevelopment Plan seeks to enable the coordinated redevelopment of the Chrome
Waterfront Redevelopment Area in a way that facilitates a transition in the nature of
land and water uses from the heavy industry of the past to an extension of the recent
trend toward mixed -use residential and neighborhood retail and office uses that will
support enhanced commuter linkages to New York City as well as local commerce.
1.2 STATUTORY BASIS FOR THE REDEVELOPMENT PLAN
Section 7 of the Local Housing and Redevelopment Law sets forth certain criteria that is
to be addressed in a redevelopment plan. This section (NJSA 40A: 12A-7) states that:
a. No development project shall be undertaken or carried out except in accordance
with a redevelopment plan adopted by ordinance of the municipal governing body,
upon its finding that the specifically delineated project area is located in an area
in need of redevelopment or in an area in need of rehabilitation, or in both,
according to criteria set forth in section S or section 14 of P.L. 1992, c 79
C.40A:12A -5 or 40A -14), as appropriate.
The redevelopment plan shall include an outline for the planning, development,
redevelopment, or rehabilitation of the project area sufficient to indicate:
1. Its relationship to definite local objectives as to appropriate land
uses, density of population, and improved traffic and public
transportation, public utilities, recreational and community facilities
and other public improvements.
2. Proposed land uses and building requirements in the project area.
3. Adequate provision for the temporary and permanent relocation, as
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ 2
necessary, of residents in the project area, including an estimate of
the extent to which decent, safe and sanitary dwelling units
affordable to displaced residents will be available to them in the
existing local housing market.
4. An identification of any property within the redevelopment area
which is proposed to be acquired- in accordance with the
redevelopment plan.
5. Any significant relationship of the redevelopment plan to (a) the
master plans of contiguous municipalities, (b) the master plan of the
county in which the municipality is located and (c) the State
Development and Redevelopment Plan adopted pursuant to the
State Planning Act, " PL 1985, c. 398 (C. 52:18A - 196 et seq.).
b. A redevelopment plan may include the provision of affordable housing in
accordance with the "Fair Housing Act, "PL 1985, c. 222 (C. 52:2 7D-3 01 et seq.)
and the housing element of the municipal master plan.
C. The redevelopment plan shall describe its relationship to pertinent municipal
development regulations as defined in the Municipal Land Use Law, " PL 1975,
c. 291 (C. 40 :55D -1 et seq.). The redevelopment plan shall supersede applicable
provisions of the development regulations of the municipality or constitute an
overlay zoning district within the redevelopment area When the redevelopment
plan supersedes any provision of the development regulations, the ordinance
adopting the redevelopment plan shall contain an explicit amendment to the
zoning district map included in the zoning ordinance. The zoning district map as
amended shall indicate the redevelopment area to which the redevelopment plan
applies. Notwithstanding the provisions of the "Municipal Land Use Law" PL
1975, c. 291 (C. 40:55D-1 et seq) or of other law, no notice beyond that required
for adoption of ordinances by the municipality shall be required for the hearing
on or adoption of the redevelopment plan or subsequent amendments thereof.
1.3 DESCRIPTION OF THE CHROME WATERFRONT REDEVELOPMENT
AREA (Redevelopment Area)
The Chrome Waterfront study area (hereinafter referred to as "Study Area ") is located in
the southeasterly section of the Borough, proximate to the Arthur Kill waterway, Noe's
Creek, Industrial Road and Roosevelt Avenue. Residential and commercial sections of
the "Chrome" neighborhood are located directly to the southwest. Directly to the east
across the Arthur Kill is Staten Island, New York, with the predominant and most visible
feature being the massive Fresh Kills Landfill The site is located in the Heavy Industrial
Zone (HI -B), except for Block 6.2, Lot 1, which is in the Light Industrial (LI) Zone, as
shown in Figure 1.1. A description of the permitted and prohibited uses in the LI and HI-
B Zone follows in Figure 1.2.
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ
Figure 1.1
Permitted Uses Prohibited Uses
1.Business, professional and governmental 1.All natural and synthetic gas production, transfer,
offices.processing or distribution.
2.Research, experimental and testing 2.Painted exterior wall signs.
laboratories.
3.Junkyards and garbage dumps.
3.Wholesale offices and showrooms with
f - J ice• A ,._
ev
f -.. •
4.All tanks, except as otherwise noted in this article.
4.Screened storage and warehousing.5.Refining, processing, distribution, transmission and storage
of any gasoline, crude oil or the manufacture of bottled fuel
to S ..
Light Industrial manufacturing.
jr.w ff t • r .
gas or any of the principal products or by- products of the
X .\
Figure 1.2
PERMITTED USES
ttit ..a..•tr:ol (1 .P R. He indnctrial (HI -
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ
Permitted Uses Prohibited Uses
1.Business, professional and governmental 1.All natural and synthetic gas production, transfer,
offices.processing or distribution.
2.Research, experimental and testing 2.Painted exterior wall signs.
laboratories.
3.Junkyards and garbage dumps.
3.Wholesale offices and showrooms with
accessory storage of goods.4.All tanks, except as otherwise noted in this article.
4.Screened storage and warehousing.5.Refining, processing, distribution, transmission and storage
of any gasoline, crude oil or the manufacture of bottled fuel
5.Light Industrial manufacturing.gas or any of the principal products or by- products of the
petrochemical industry.
6.Open storage, subject to all yard bulk
requirements.6.All uses or substances as specified for the HI -B Zone of this
article.
7.Tanks for storage of material, provided that
the cumulative gross capacity of each tank 7.The sale, rental or leasing of any used car, truck or vehicle,
does not exceed 15,000 barrels.except as an accessory to a permitted use.
8.Billboards.
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ
SECTION 2 - REDEVELOPMENT GOALS AND POLICIES
It is the goal of Carteret to maximize its social and economic potential and to assure that the
land within its boundaries be fully productive and serve the public health and welfare. This
Redevelopment Plan seeks to attract and facilitate the development of the Chrome Waterfront
Redevelopment Area, taking full advantage of the waterway linkages to the employment centers
of Manhattan and Jersey City via the Kill Van Kull (Figure 1.3) and the physiographic benefits
of the site. The current LI and HI -B zoning of the redevelopment area is not compatible with
this vision. The redevelopment of the Chrome Waterfront Redevelopment Area will change the
face of Carteret's waterfront and stimulate neighborhood commercial uses along Lower
Roosevelt Avenue in the Chrome neighborhood, as well as providing sorely needed recreational
opportunities for Carteret residents.
Therefore, it is the intent of this Redevelopment Plan to reach the following goals and
objectives for the Borough of Carteret:
A. The development of a mixture of residential uses, supportive neighborhood retail
services, recreational opportunities that will add needed taxable improvements to the
Borough's ratable base and advance the revitalization of the Chrome section of Carteret
without adding significantly to the cost of Borough services.
B. The remediation of brownfield sites such as the Dupont property and Carteret Materials.
C. The enhancement of economic development opportunities that can support existing
businesses with new customers residing within walking distance of Lower Roosevelt
Avenue.
D. The creation of a water -based commuter village with convenient ferry service to Staten
Island, Jersey City and Manhattan and a variety of new waterfront recreational uses.
Figure 1.
Potential
Waterway
Linkage to
Manhattan
and Jersey
City
The Chrome Waterfront
Borough of Carteret, NJ
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SECTION 3 - ACQUISITION AND RELOCATION
3.1 Properties to be Acquired
The properties proposed for acquisition and redevelopment for permitted uses in
accordance with this Plan are identified on the map entitled Acquisition Parcels (Exhibit
2). This map also shows properties that are identified for rehabilitation by private
property owners in conformance with the permitted uses of this Plan.
3.1 Relocation
Certain commercial and/or industrial operations in the redevelopment area will have to
be relocated from their current places of business. Existing development that does not
further redevelopment goals and objectives relating to mixed -use residential,
neighborhood commercial, recreational and limited community retail redevelopment
should be relocated to commercial or light industrial areas within the Borough that are
more conducive to said uses. Specifically, it is recommended that the owners of the A.
Duie Pyle Inc. trucking and freight distribution use be given the option of selling their
landholdings for fair market value or provided the opportunity to negotiate a land swap
for a site in the Landfill Reclamation Redevelopment District closer to Exit 12 of the
New Jersey Turnpike. As an alternative, the Redevelopment Agency will provide fair
market value for Block 5.2, Lot 1.03 and will provide relocation assistance. It is also
recommended that Block 5. 1, Lot 2, occupied by P & E Auto Body, be acquired
privately by the designated redeveloper, including suitable compensation for relocating
the business to a more suitable light industrial site closer to Exit 12. A relocation officer
will be designated by the Redevelopment Agency to ensure successful relocation of
affected businesses, and to organize funds for moving expenses.
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ 7
1
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LEGEND
M Acquire for
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Acquire for
Rehabilitation or
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Consistent with
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The Chrome Waterfront Redevelopment Plan 8
Borough of Carteret, NJ
SECTION 4 - RELATIONSHIP TO OTHER PLANS
4.1 Municipal Land Use and Zoning
The redevelopment area is currently located within the Light Industrial and HI -B Heavy
Industrial Zoning Districts. The Carteret Borough Master Plan Reexamination (1998)
envisions the redevelopment of the area and the development of public recreational uses
of the Arthur Kill waterfront. The goals, objectives and standards contained herein are
therefore consistent with the Borough's Master Plan. Section 5 discusses the degree to
which local zoning regulations are supplemented by the standards contained herein.
4.2 Sewer and Water
The redevelopment area is within public water and sewer service areas. It is anticipated
that mains will be extended to serve the project.
4.3 Transportation and Public Transportation
The Redevelopment Plan notes the opportunities for public transportation offered by the
potential for commuter ferry service up the Arthur Kill through the Newark Bay to
Staten Island. It also notes the potential for bus transportation along Lower Roosevelt
Avenue from Woodbridge through Carteret to Exit 12 of the New Jersey Turnpike.
Finally, the existence of freight rail right -of -way through the redevelopment area offers
the potential to consider the possibility of a light rail connection to the commuter rail
system.
4.4 Relation to Master Plans of Adjacent Municipalities
Municipalities that border Carteret are Woodbridge Township in Middlesex County and
Linden and Rahway in Union County. The redevelopment area is separated from both
Woodbridge Township and the City of Rahway by existing heavily industrialized areas.
Therefore, the proposed mixed -use residential, neighborhood commercial, recreational
and limited community retail land uses in the redevelopment area are not anticipated to
have a measurable impact on either municipality.
4.5 Relation to County Plan and State Development Plan
4.5.1 The Strategic Plan for Middlesex County's Urban Center
The Redevelopment area is located within the Arthur Kill & Raritan Bay Shore Strategic
Planning Area, and has historically been deemed appropriate for commercial
development and redevelopment. The Strategic Plan envisions a coastal trail extending
between Joseph Medwick Park along the Rahway River to the Arthur Kill, and
eventually south to the Raritan Bay. This coastal trail would facilitate improved
waterfront access for residents of the Borough and of the region, and would pass directly
through the Study Area.
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ
4.5.2 The State Development and Redevelopment Plan
The entirety of the redevelopment area is located within the Metropolitan Planning Area
PA -1) as set forth by the State Development and Redevelopment Plan (SDRP). The
intent of the SDRP in the PA -1 is to:
provide for much of the state's future redevelopment;
revitalize cities and towns;
promote growth in compact forms;
stabilize older suburbs;
redesign areas ofsprawl; and
protect the character of existing stable communities.
This redevelopment plan is entirely consistent with the intent of the SDRP as it relates to
the PA -1. Additionally, this redevelopment plan promotes the following stated policy
objectives of the SDRP as they related to the PA -1:
Land Use: Promote redevelopment and development in Cores and
Neighborhoods of Centers and in Nodes that have been identified through
cooperative regional planning efforts. Promote diversification of land uses,
including housing where appropriate, in single -use developments and
enhance their linkages to the rest of the community. Ensure efficient and
beneficial utilization of scarce land resources throughout the Planning Area
to strengthen its existing diversified and compact nature.
Economic Development: Promote economic development by encouraging
strategic land assembly, site preparation and infill development,
public /private partnerships and infrastructure improvements that support an
identified role for the community within the regional marketplace. Encourage
job training and other incentives to retain and attract businesses. Encourage
private sector investment through supportive government regulations,
policies, and programs, including tax policies and expedited review of
proposals that support appropriate redevelopment.
Natural Resource Conservation: Reclaim environmentally damaged sites
and mitigate future negative impacts, particularly to waterfronts, scenic
vistas, wildlife habitats and to Critical Environmental Sites and Historic and
Cultural Sites. Give special emphasis to improving air quality. Use open
space to reinforce neighborhood and community identity, and protect natural
linear systems, including regional systems that link to other Planning Areas.
Redevelopment: Encourage redevelopment at intensities sufficient to support
transit, a broad range of uses and efficient use of infrastructure. Promote
design that enhances public safety, encourages pedestrian activity and
reduces dependency on the automobile.
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ 10
Public Facilities and Services: Complete, repair or replace existing
infrastructure systems to eliminate deficiencies and provide capacity for
sustainable development and redevelopment in the region. Encourage the
concentration ofpublic facilities and services in Centers and Cores.
Moreover, this redevelopment plan seeks to further the SDRP's stated Statewide goal to
protect the environment, prevent and clean up pollution," and promotes the objective of
actively pursuing "... public /private partnerships, the latest technology and strict
enforcement to prevent toxic emissions and clean up polluted air, land and water without
shifting pollutants from one medium to another, from one geographic location to
another."
The Chrome Waterfront Redevelopment Plan lj
Borough of Carteret, NJ
SECTION 5 - REDEVELOPMENT PLAN
The Redevelopment Plan for the District provides the framework for the implementation of the
project to achieve the goals and objectives.
5.1 Land Use Options
The Redevelopment Plan is intended to accommodate a mix of higher density residential
uses with supportive neighborhood retail services, conversion of industrial buildings to
community retail uses and the development of a variety of waterfront and recreational
uses along the Arthur Kill (See Exhibit 3). The range of these uses is a dramatic
departure from those permitted under the Borough's zoning ordinance in order to
transform the Chrome Waterfront Redevelopment Area using the combination of
Borough -owned land and the 36 acre E.I. Du Pont De Nemours & Co. brownfield site.
5.2 Redevelopment Standards
5.2.1 - Purpose: The intent of these redevelopment standards is to provide the
developer with guidelines in order to facilitate the design of a conforming project. It is
also the purpose of the redevelopment standards to provide flexibility in the standards to
accomplish a successful project.
5.2.2 - Definitions: The words used in the Redevelopment Plan shall have the same
definition as included in the Carteret Land Development Ordinance adopted May 2000
and as amended, unless specifically defined herein.
5.2.3 - Other Standards: The standards contained within the Redevelopment Plan shall
supersede existing regulations as contained in the Carteret Land Development Ordinance
adopted May 2000, as amended. The Land Development Ordinance shall be the
regulations for any site requirements or other standards not specifically set forth in this
plan.
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ 12
FIGURE 5.1
PERMITTED USES
CHROME WATERFRONT REDEVELOPMENT AREA
Permitted Uses
RM Zone
Permitted Uses
PWD Zone
I Townhouse single - family dwellings as I. Multifamily dwellings as regulated in the R-
regulated in the R -M(T) Zone.M(G) Zone.
2 Multifamily dwellings as regulated in 2. Townhouse single - family dwellings as
the R -M(G) Zone.regulated in the R -M(T) Zone.
3. Wholesale outlet stores with accessory storage
of goods.
4. Retail business and personal service
establishments which are clearly of a service
character and needed for more -or -less daily
shopping by persons residing nearby.
5. Service establishments dealing directly with
consumers.
6. Business, professional and governmental
offices, banks and fiduciary institutions.
7. Retail uses that provide services or materials,
except that no outdoor storage is permitted.
8. Child -care centers, subject to § 160 -132.
9. Indoor and Outdoor recreational uses,
including golf courses, fishing piers and
boating facilities such as boat ramps, docks,
slips and dry storage areas.
10. Water- dependent uses such as marinas, water
taxis, excursion boats, ferry service, boat and
watercraft rental.
11. Municipal facilities, including governmental
offices, public works facilities, water and
wastewater treatment facilities, parks and
recreational facilities and other uses of
Borough -owned land subject to the approval
of the Borough Council.
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ
13
LEGEND
Community Retail
Commercial
Residential
Municipal
Facilities
Planned
Development
Public Park
BOROUGH OF CARTERET
Ch 4' etertrorit Rede'fei0prnentPIan
c= u r Projo_t # 020149902 Gate: t., nu a r{ 2003
LAND USE PLAN
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ
14
5.2.4 - Bulk Standards (See Exhibit 4 for Zoning Map)
Bulk Items RM (Multifamily Planned Waterfront
Residential DeveloDevelopment"*
Minimum Lot area *40,000 square feet 30 acre Tract
Minimum Lot width*200
20'i500MinimumFrontyardsetback*20'
20'50' from Tract BoundMinimumSideyardsetbackeach)*
20 from Tract BoundMinimumRearard **
Maximum coverage - principal buildin s)*60%
50% overallMaximumcoverae - impervious surfaces 80%
45'
Maximum building height 45'
Maximum Residential Density 35 Dwelling Units per acre 35 Dwelling Units per acre,
excluding common
recreational areas.
Any lot created for the purpose of creating a "pad site" for the occupancy of a structure for separateownershiporleaseholdwithinalargertractconsistentwiththisplanshallnotbesubjecttolotarea,
dimensional or setback requirements
Through lots shall be considered to have one front yard and one rear yard; No rear yard is required for
those properties backing to the Arthur Kill.
Buildings and structures on Borough -owned land are exempt from these standards
5.3 - Additional Requirements
5.3.1 Signs:
See Carteret Zoning Ordinance Section 160- 113.D: "Nonresidential signs ".
5.3.2 Parking, Loading, Access:
A. Office — 3 spaces per 1,000 sf.
B. Residential — Subject to Residential Site Improvement Standards (RSIS), as
amended.
C. Other Permitted Uses — As per Borough Land Development Ordinance.
The above off - street parking and loading standards shall apply, except where the
Planning Board determines that said standards may be reduced by up to 40% to
account for shared parking and loading demands which diminish the need for on-
site parking and loading.
Where possible, cross easements shall be permitted and encouraged to enable
sharing of parking facilities loading areas and driveways /access roads between
lots.
The Chrome Waterfront Redevelopment Plan 15
Borough of Carteret, NJ
The Chrome Waterfront Redevelopment Plan
Borough of Carteret, NJ 16
5.3.3 Non - Applicable Sections:
The following sections of the Borough Land Development Ordinance will not apply in the
Redevelopment Area:
160 -76: Blocks
160 -78: Corner lots
160 -83: Grading and Filling
160 -85: Lots
160 -98: Accessory Buildings
160 -109: Maximum number of principal uses or buildings per lot
5.3.4 Stormwater Management:
The stormwater management facilities shall meet requirements set forth by the New Jersey
Department of Environmental Protection, as necessary for required permits.
5.3.5 Street, Curbs and Sidewalks:
The proposed improvements shall meet the requirements set forth in the Land DevelopmentOrdinanceatSections160 -79, 160 -91, 160 -94 and 160- 107.D.
5.3.6 Landscaping, Buffers, Pedestrian Circulation and Amenities:
Proposed improvements shall meet the landscaping, buffering, and pedestrian circulation andamenitiesstandardssetforthinSection160 -77, 160- 138.G(l)(h)(i) of the Borough Ordinance.
SECTION 6 - APPROVALS /INFRASTRUCTURE
IMPROVEMENTS
6.1 Subdivision /Site Plan
Except as otherwise provided in this Redevelopment Plan, any redevelopment projectcarriedoutintheChromeWaterfrontRedevelopmentAreaisrequiredtomeetthe
standards and requirements of the Carteret Land Development Ordinance.
Subdivision and site plans for any redevelopment project are required to be submitted totheCarteretPlanningBoardforreview, public hearing and approval. No site plan shall
be submitted unless the necessary infrastructure to support that intensity of development
is part of such site plan or already approved.
A public hearing will be required as part of the approval process. Individuals will benotifiedasrequiredundertheNewJerseyMunicipalLandUseLaw. Input from the
The Chrome Waterfront Redevelopment Plan 17
Borough of Carteret, NJ
property owners and general public will be made at the public hearing.
6.2 Infrastructure Improvements
As a condition of redevelopment of the District, certain infrastructure improvements
must be made to the site.
The infrastructure improvements anticipated for the District include:
a. Construction of on -site potable water and sewer mains.
b. Construction of off -site potable water, sewer mains and a sewage pump station.
C. Construction of a road system including a storm water management system.
d. Construction of electric, gas, cable television, and telephone facilities.
SECTION 7 - CERTIFICATE OF COMPLETION
7.1 Certificate of Completion
Any redevelopment project undertaken under a redeveloper agreement executed
pursuant to this Plan shall not be deemed complete until a Certificate of Completion is
issued by the redevelopment entity based on a determination that all requirements of the
redeveloper agreement have been fulfilled. Upon issuance of a Certificate of
Completion, the parcel upon which the redevelopment project is located shall no longer
be in need of redevelopment.
The Chrome Waterfront Redevelopment Plan
Borough of Carteret. NJ 18
EXHIBIT C
PROJECT PREMISES
By virtue of Resolution No. 03 -228 duly adopted by the Governing Body of the
Borough of Carteret on July 24, 2003 by Carteret Landings LLC was designated to serve
as redeveloper of the following parcels of property and the Improvements constructed
thereupon.
Tax Block Tax Lot Street Address
4 1 4000 Industrial Avenue
4 2 (C.O.100)100 Middlesex Avenue
4 2 (C.O.200)100 Middlesex Avenue
4 2 (C.O.300)100 Middlesex Avenue
4 2 (C.O.400)100 Middlesex Avenue
5.02 1.01 off) Roosevelt Avenue
5.02 1.02 off) Roosevelt Avenue
5.02 1.03 off) Roosevelt Avenue
5.02 2.01 off) Roosevelt Avenue
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EXHIBIT D
PROJECT DESCRIPTION
The Redeveloper's project will be situated upon Tax Block 4 Lots 1 and 2 (C.O.
100, C.O. 200, C.O. 300 and C.O. 400) and Tax Block 5.02 Lots 1.01, 1.02, 1.03 and
2.01. As designed the project will tie into the currently existing residential aspect of the
Borough and will provide an extension of same to the improved waterfront.
The overall project will occur in three (3) general phases of development and
construction, each of which will contain two (2) or more subphases.
Sitework and Roadway Improvements
Each phase of development and construction will include all reasonably necessary
infrastructure and utility service improvements required for the completion and use of the
relevant phase. Such site improvements will include electric power transmission lines,
television cable lines, storm and sanitary sewer conduits, related equipment and facilities
and secondary and tertiary roadways the locations of which will be specified in the
approved site plan.
The project also will include the extension of Carteret Avenue, from Roosevelt
Avenue extending eastward to the ferry landing; the construction of Landings Boulevard,
a major cross street running parallel with the waterfront and the extension of Middlesex
Avenue from Industrial Road extending eastward to the marina. The extension of
Carteret Avenue will occur as a component of Phase 1. Landings Boulevard will be
constructed as a component of Phase I and Phase II. The extension of Middlesex Avenue
will occur as a component of the optional Phase III.
PHASE I -A
Phase I -A will consist of the redevelopment of the twenty -three point nine (23.9
ac.) acres component of the overall site situated east of Industrial Avenue and west of the
future Landings Boulevard and running south to encompass both sides of the majority of
the length of Carteret Boulevard, as extended.
This subphase will consist of the development and construction of one hundred
sixty -five (165) townhouses to be built over the proposed apartment units: two hundred
two (202) apartments and two hundred fifty -two (252) age- restricted apartments. The
retail /commercial space components of this subphase will include a ten thousand (10,000
sq. ft.) square feet health club facility; a big box retail space of approximately one
hundred four thousand (104,000 sq. ft.) square feet; a fifty -one thousand (51,000 sq. ft.)
square feet office building; fifteen thousand (15,000 sq. ft.) square feet of office space
along the future Landings Boulevard and eleven thousand (11,000 sq. ft.) square feet of
small office space. This subphase will also include the construction of the streetscape
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features of the Carteret Avenue extension; ancillary off - street parking areas; and
miscellaneous landscape and hardscape features.
PHASE I -B
Phase I -B will consist of the redevelopment of the sixteen point eight (16.8 ac.)
acres component of the overall site located on the east side of the future Landings
Boulevard, and running east to the waterfront and running south to encompass both sides
of the eastern terminus of the Carteret Avenue extension.
This subphase will consist of the development and construction of three hundred
sixty -six (366) waterfront townhouses; a co- extensive portion of the waterfront
promenade; the ferry pier landing; the recreation center; ancillary off- street parking areas;
and miscellaneous landscape and hardscape features.
PHASE II -A
Phase II -A will consist of the redevelopment of the six point four (6.4 ac.) acres
northern aspect of the overall site situated southeast of Roosevelt Avenue and west of the
future Landings Boulevard.
Development and construction in this subphase will include two thousand (2,000
sq. ft.) square feet of small office space; approximately twenty -two thousand (22,000 sq.
ft.) square feet of retail space; ninety -four (94) townhouses to be constructed over the
proposed apartments; sixty (60) age- restricted elevator - accessed apartments; ancillary
off- street parking areas; and miscellaneous landscape and hardscape features.
PHASE II -B
Phase II -B will consist of the redevelopment of the eleven point two (11.2 ac.)
acres northern waterfront aspect of the overall site, east of the future Landings Boulevard
southeast of Roosevelt Avenue and extending east to the waterfront.
Development and construction in this subphase will include three hundred thirty -
two (332) waterfront townhouses; a co- extensive portion of the waterfront promenade;
ancillary off- street parking areas; and miscellaneous landscape and streetscape features.
PHASE III
Phase III represents an optional future aspect of the overall redevelopment project
whose development and construction will be coordinated with the then - prevailing
residential and commercial real estate markets as well as the region's ability to absorb the
residential and commercial space created in the earlier phases of the project.
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PHASE III -A
Phase III -A consists of the redevelopment of the sixteen (16 ac.) acres component
of the overall site located on the west side of the future Landings Boulevard and south of
Carteret Avenue, as extended and extending south to the north side of Middlesex Avenue,
as extended.
When the Redeveloper proceeds with this phase, development and construction
will include a ninety thousand (90,000 sq. ft.) square feet big -box retail venue;
approximately fifteen thousand (15,000 sq. ft.) square feet of office space situated along
the future Landings Boulevard and an approximately fifty -one thousand (51,000 sq. ft.)
square feet office building. Residential development and construction will include two
hundred seventy -six (276) townhouses to be constructed over the proposed apartment
units and one hundred eight (108) elevator - accessed apartment units; ancillary off - street
parking areas; and miscellaneous landscape and hardscape features.
PHASE III -B
Phase III -B consists of the redevelopment of the twelve point two (12.2 ac.) acres
component of the overall site located along the east side of the future Landings Boulevard
between the south side of Carteret Avenue, as extended and the southern boundary of the
overall site and extending east to the southern aspect waterfront.
When the Redeveloper proceeds with this phase, development and construction
will feature one hundred eighty (180) marina -front townhouses; a two hundred twenty
220) unit extended stay hotel facility; seventy -seven (77) townhouses constructed over
apartment units; approximately seventy -five thousand (75,000 sq. ft.) square feet of retail
space; a co- extensive portion of the waterfront promenade; ancillary off - street parking
areas; and miscellaneous landscape and hardscape features.
PHASE III -C
Phase 11I -C consists of the redevelopment of the thirteen point nine (13.9 ac.)
acres portion of the overall site between the southern boundary of the overall site and the
south side of Middlesex Avenue, as extended; and between the west side of the future
Landings Boulevard and the east side of Industrial Road.
When the Redeveloper proceeds with this phase, development and construction
will include three hundred eighteen (318) townhouses constructed over apartment units;
ninety (90) age- restricted apartment units; ancillary off - street parking areas; and
miscellaneous landscape and hardscape features.
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EXHIBIT E
PUBLIC IMPROVEMENTS
Pursuant to Section 2.9 of this Redevelopment Agreement, upon receipt of all
necessary Governmental Approvals for the respective phases and in accordance with the
proposed completion dates contained in the Project Schedule, the Redeveloper shall
construct certain upgrades and improvements to the following roadways within the
Project Premises which are deemed to be Public Improvements:
Carteret Boulevard
Roosevelt Avenue
Upon completion of the upgrades and improvements to these roadways and
completion of the relevant phases of the overall project, the Borough agrees to accept
these roadways as public thoroughfares, if approved for acceptance by the Borough
Engineer pursuant to the design standards established by law.
As a component of Phase I and Phase II of the overall project, receipt of all
necessary Governmental Approvals and in accordance with the proposed completion
dates contained in the Project Schedule, the Redeveloper shall construct a new
thoroughfare that shall run parallel with the existing Industrial Avenue, proximate to the
waterfront aspects of the Project Premises. This new roadway, when complete shall
intersect with Roosevelt Avenue and Carteret Boulevard. This new roadway will be
temporarily identified as:
Landings Boulevard
Upon completion of this new roadway and completion of the relevant phases of
development, the Borough agrees to accept this roadway as a public thoroughfare, if
approved for acceptance by the Borough Engineer pursuant to the design standards
established by law.
In the event that the Redeveloper elects to proceed with the Phase III component
of the overall project, upon receipt of all necessary Governmental Approvals for this
phase and in accordance with the proposed completion dates contained in the Project
Schedule, the Redeveloper shall construct certain upgrades and improvements to the
following roadway within the Project Premises which is deemed to be a Public
Improvement:
Middlesex Avenue
In addition thereto, as a component of the optional Phase III, the Redeveloper
shall extend Landings Boulevard in a southward direction to intersect with Middlesex
Avenue.
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Upon completion of the Phase III component of the overall project, the Borough
agrees to accept Middlesex Avenue and the extension of Landings Boulevard as public
thoroughfares, if approved for acceptance by the Borough Engineer pursuant to the
design standards established by law.
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EXHIBIT F
SUMMARY OF BUSINESS TERMS FOR LONG -TERM TAX
EXEMPTION PURSUANT TO N.J.S.A. 40A:20 -1 ET SEQ.
Commercial/Office Space:
For the Commercial /Office Space constructed within each phase of the overall
Project an Annual Service Charge of fifteen (15 %) percent of the annual gross revenue
received by the qualified urban renewal entity shall be paid to the Borough in lieu of
taxes.
The Annual Service Charge specified in the preceding paragraph shall be
periodically adjusted for each phase of development in accordance with the following
schedule:
Stage 1 — Commencing upon the issuance of a Certificate of Completion, Year 1
through Year 6, the Annual Service Charge shall be fifteen (15 %) percent of the
annual gross revenue.
Stage 2 — Upon the commencement of Year 7, the Annual Service Charge shall be
fifteen (15 %) percent or twenty (20 %) percent of the taxes otherwise due on the
value of the land and Improvements, whichever is greater.
Stage 3 — Upon the commencement of Year 8, the Annual Service Charge shall be
fifteen (15 %) percent or forty (40 %) percent of the taxes otherwise due on the
value of the land and Improvements, whichever is greater.
Stage 4 — Upon the commencement of Year 9 and continuing through the
termination of Year 11, the Annual Service Charge shall be fifteen (15 %) percent
or sixty (60 %) percent of the taxes otherwise due on the land and Improvements,
whichever is greater.
Stage 5 — Upon the commencement of Year 12 and continuing through the
termination of Year 15, the Annual Service Charge shall be fifteen (15 %) percent
or eighty (80 %) percent of the taxes otherwise due on the land and improvements,
whichever is greater.
The Long Term Tax Exemption for Commercial /Office Space shall be limited to a
term of fifteen (15) years for each phase of development commencing upon the
respective dates of issuance of Certificates of Completion, unless agreed to otherwise by
the parties.
Residential (Rental) Units:
For the Residential (Rental) Units constructed within each phase of the overall
Project an Annual Service Charge of fifteen (15 %) percent of the annual gross revenue
received by the qualified urban renewal entity shall be paid to the Borough in lieu of
taxes.
The Annual Service Charge specified in the preceding paragraph shall be
periodically adjusted for each phase of development in accordance with the following
schedule:
Stage 1 — Commencing upon the issuance of a Certificate of Completion, Year 1
through Year 6, the Annual Service Charge shall be fifteen (15 %) percent of the
annual gross revenue.
Stage 2 — Upon the commencement of Year 7, the Annual Service Charge shall be
fifteen (15 %) percent or twenty (20 %) percent of the taxes otherwise due on the
value of the land and Improvements, whichever is greater.
Stage 3 — Upon the commencement of Year 8, the Annual Service Charge shall be
fifteen (15 %) percent or forty (40 %) percent of the taxes otherwise due on the
value of the land and Improvements, whichever is greater.
Stage 4 — Upon the commencement of Year 9 and continuing through the
termination of Year 11, the Annual Service Charge shall be fifteen (15 %) percent
or sixty (60 %) percent of the taxes otherwise due on the land and Improvements,
whichever is greater.
Stage 5 — Upon the commencement of Year 12 and continuing through the
termination of Year 15, the Annual Service Charge shall be fifteen (15 %) percent
or eighty (80 %) percent of the taxes otherwise due on the land and improvements,
whichever is greater.
The Long Term Tax Exemption for the Residential (Rental) Units shall be limited
to a term of fifteen (15) years for each phase of development commencing upon the
respective dates of issuance of Certificates of Completion, unless agreed to otherwise by
the parties.
Residential (For Sale) Units:
For the Residential (For Sale) Units constructed within each phase of the overall
Project an Annual Service Charge of two (2 %) percent of initial bona fide sales price
calculated on per unit basis shall be paid to the Borough in lieu of taxes.
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The Annual Service Charge specified in the preceding paragraph shall be
periodically adjusted for each phase of development in accordance with the following
schedule:
Stage 1 — Commencing upon the issuance of a Certificate of Completion, Year 1
through Year 6, the Annual Service Charge shall be two (2 %) percent of the
initial bona fide sales price calculated on a per unit basis.
Stage 2 — Upon the commencement of Year 7, the Annual Service Charge shall be
two (2 %) percent of the initial bona fide sales price calculated on a per unit basis
or twenty (20 %) percent of the taxes otherwise due on the value of the land and
Improvements, whichever is greater.
Stage 3 — Upon the commencement of Year 8, the Annual Service Charge shall be
two (2 %) percent of the initial bona fide sales price calculated on a per unit basis
or forty (40 %) percent of the taxes otherwise due on the value of the land and
Improvements, whichever is greater.
Stage 4 — Upon the commencement of Year 9, the Annual Service Charge shall be
two (2 %) percent of the initial bona fide sales price calculated on a per unit basis
or sixty (60 %) percent of the taxes otherwise due on the land and Improvements,
whichever is greater.
Stage 5 — Upon the commencement of Year 10, and continuing through the
termination of Year 10, the Annual Service Charge shall be two (2 %) percent of
the initial bona fide sales price calculated on a per unit basis or eighty (80 %)
percent of the taxes otherwise due on the land and Improvements, whichever is
greater.
The Long Tenn Tax Exemption for the Residential (For Sale) Units shall be
limited to a term of ten (10) years for each phase of development commencing upon the
respective dates of issuance of Certificates of Completion, unless agreed to otherwise by
the parties.