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HomeMy Public PortalAboutr 07:036 2Rezolution of t4e ~oroug4 of QIarteret, ~. 3J. No. #07-lf, Date of Adoption January 11, 2007 RESOLUTION OF THE BOROUGH OF CARTERET, IN THE COUNTY OF MIDDLESEX, NEW JERSEY AUTHORIZING EXECUTION OF AN AGREEMENT FOR THE REDEVELOPMENT OF THE ROOSEVELT A VENUE LIGHT INDUSTRIAL DISTRICT WHEREAS, on June 3, 2004, the Borough Council adopted resolution number 04-191, requesting that the Borough Planning Board (the "Planning Board") determine whether certain real property located within the Borough constitutes an "area in need of redevelopment" pursuant to the Local Redevelopment and Housing Law, NJ.S.A. 40A:12A-1 et seq. (the "Redevelopment Law"); and WHEREAS, a Property assessment entitled "Redevelopment Area Assessment: Roosevelt Avenue Industrial Park Project Property, Carteret, New Jersey" dated July 6, 2004 ("Property Assessment") of certain properties commonly known as Block 6.02, Lots 6, 7 and 13 on the tax map of the Borough (the "Assessment Area") was prepared by Beacon Planning and Consulting Services, L.L.c. ("BPCS") and concluded that Block 6.02, Lots 6 and 7 of the Assessment Area met the statutory requirements to be detem1ined to be an "area in need of redevelopment" under the Redevelopment Law; and WHEREAS, on August 25, 2004, the Planning Board adopted a resolution of findings and conclusions based upon the Property Assessment determining, among other things, to recommend to the Borough Council that Block 6.02, Lots 6 and 7 of the Assessment Area be designated an "area in need of redevelopment" by the Borough; and WHEREAS, on August 26, 2004, the Borough Council, following the recommendation of the Planning Board, adopted resolution number 04-263, determining that Block 6.02, Lots 6 and 7 of the Assessment Area (hereinafter the "Redevelopment Area") constitute an "area in need of redevelopment" under the Redevelopment Law; and WHEREAS, on October 7,2004, the Borough Council adopted resolution number 04-317, directing the Planning Board to prepare a redevelopment plan; and WHEREAS, BPCS prepared a redevelopment plan (the "Redevelopment Plan") for the Redevelopment Area, dated December 30, 2004; and WHEREAS, on February 23, 2005, the Planning Board adopted a resolution of findings and conclusions determining that the Redevelopment Plan is not inconsistent with the Borough's Master Plan or the Master Plans of Woodbridge, Rahway and Linden, the Middlesex County Master Plan or the State Development and Redevelopment Plan and endorsing and recommending final adoption of the Redevelopment Plan; and WHEREAS, on February 17, 2005, the Borough Council, pursuant to Section 7 of the Redevelopment Law (NJ.S.A. 40A:12A-7) and based on the recommendation of the Plalming Board, adopted ordinance number 05-9, approving and adopting the Redevelopment Plan; and WHEREAS, on August 25, 2005, the Borough Council, acting in its capacity as a Redevelopment Entity for the Borough, adopted resolution number 05-268, tentatively designating Carteret Tomorrow as redeveloper of the Redevelopment Area, subject to the successful negotiation of a redevelopment agreement; and WHEREAS, on August 30, 2005, the parties conducted a meeting and discussed the preliminary framework for a redevelopment agreement; and 'VHEREAS, on January 23, 2006, Carteret Tomorrow requested that the Borough change the tentative designation of redeveloper of the Redevelopment Area from Carteret Tomorrow, a Partnership to Carteret Tomorrow, L.L.c.; and WHEREAS, on February 9, 2006, the Borough Council, acting in its capacity as a Redevelopment Entity for the Borough, adopted resolution number 06-71, changing the tentative designation of redeveloper of the Redevelopment Area from Carteret Tomorrow, a Partnership to Carteret Tomorrow, L.L.c.; and WHEREAS, the Borough has determined that the Redeveloper possesses the proper qualifications, financial resources and capacity to implement and complete the redevelopment of the Redevelopment Area in accordance with the Redevelopment Plan (the "Redevelopment Project"), and all other applicable laws, ordinances and regulations; and WHEREAS, the Borough believes the Redevelopment Project to be in the vital and best interests of the Borough, and that it promotes the health, safety, morals and welfare of the Borough's residents; and NO. #07-% PAGE 2 of 2 WHEREAS, in order to set forth the terms and conditions under which the Parties shall carry out their respective obligations with respect to the construction of the Redevelopment Project in accordance with the Redevelopment Plan, the Parties have determined to execute a Redevelopment Agreement. NOW, THEREFORE BE IT RESOLVED by the Borough Council of the Borough ofCarteret, in the County of Middlesex, New Jersey, as follows: Section 1. The aforementioned recitals are incorporated herein as though fulIy set forth at length. Section 2. (a) The Borough COuncil hereby authorizes the execution of a redevelopment agreement with the Redeveloper in substantially the form attached hereto as EXIllBIT A and by this reference incorporated herein (the "Redevelopment Agreement"). (b) The Mayor is hereby authorized to execute the Redevelopment Agreement in substantially the form attached hereto, with such additions, deletions and modifications as may be necessary in consultation with BPCS, the Borough Counsel and Special Counsel. Section 3. Carteret Tomorrow, L.L.c. is hereby designated as redeveloper, pursuant to the Local Redevelopment and Housing Law, of such parcels within the Redevelopment Area as are identified within the Redevelopment Agreement attached hereto. Section 4. If any part of this Resolution shall be deemed invalid, such parts shall be severed and the invalidity thereby shall not affect the remaining parts of this Resolution. Section 5. A copy of this resolution shall be available for public inspection at the offices of the Borough. This Resolution shall take effect immediately. Section 6. Adopted this II III day of January, 2007 and certified as a true copy of the original on January 12,2007. KATHLEEN M. BARNEY, RMCICMC/MMC Municipal Clerk RECORD OF COUNCIL VOTE COUNCILMAN YES NO NY A.B. COUNCILMAN YES NO NY A.B. BELLINO y "U DT In' X DIAZ y RIOS X KRUM y SITARZ X X - Indicate Vote AB - Absent NV - Not Voting XOR - Indic'ates Vote to Overrule Veto r.n ," Adopted at a meeting of the Municipal Council ~~OO7 13030-018 315263-1 / .~'c7 - EXHIBIT A Redevelopment Agreement 13030-018 312089-9 REDEVELOPMENT AGREEMENT BY AND BETWEEN BOROUGH OF CARTERET, NEW JERSEY, as the Redevelopment Entity and CARTERET TOMORROW, L.L.C., as the Redeveloper Dated as of , 2007 TABLE OF CONTENTS Reci tals.......................................................................................................................... .................. 1 Article I DeImitions and Interpretations Section 1.01 Definitions................................................................................................................. 3 Section 1. 02 Interpretation and Construction ....... ................. ...... ................. ...... .................... ..... 12 Article II Description of Redevelopment Area and the Project Improvements Section 2.01 Redevelopment Area............................................................................................... 13 Section 2.02 Proposed Development; Project Improvements...................................................... 13 Article III Acquisition of Redevelopment Area; Borough Acquisition Rights Section 3.01 Preliminary Real Property Appraisal Reports......................................................... 14 Section 3.02 Acquisition of Property by the Redeveloper........................................................... 14 Section 3.03 Property Notice....................................................................................................... 14 Section 3.04 Condemnation Procedures ... ..................... ...... ................. ...... ................................. 14 Section 3.05 Condemnation Costs. .............................................................................................. 15 Section 3.06 Condemnation Funds.............................................................................................. 16 Section 3.07 Condemnation of Easements........... ..................... ............................ ....................... 17 Section 3.08 Relocation............................................................................................................... 17 Section 3.09 Disposition of Redevelopment Area Upon Termination of Redevelopment Agreement..... ...... ... ... ............ .................... ...... ... ............ ........... ... ...... ..... ......... ....... 17 Section 3.10 Related Actions ....................................................................................................... 18 Article IV Financial Obligations Section 4.01 The Redeveloper's Financial Commitment ............................................................ 19 Section 4.02 Project Costs........................................................................................................... 19 Section 4.03 Borough Costs......................................................................................................... 19 Section 4.04 Payment of Borough Costs............................... ........................ .............................. 19 Section 4.05 Governmental Approval Fees ... ....... ............................. ......... ................. ................ 20 Section 4.06 Developer's Fee...................................................................................................... 20 Section 4.07 Development Impact Fee........................................................................................ 20 Section 4.08 Guarantor Agreement.............................................................................................. 20 Article V Environmental Matters Section 5.01 Environmental Compliance in General...................................................................21 Section 5.02 Redeveloper Indemnification of Borough .............................................................. 21 Section 5.03 Industrial Site Recovery Act Compliance............................................................... 21 Section 5.04 Borough Cooperation and Environmental Reports................................................. 21 Section 5.05 Determination of Estimated Environmental Costs in Condemnation..................... 21 Section 5.06 Redeveloper's Waiver of Pre-Condemnation Environmental Assessments........... 22 Article VI Construction of Project Improvements Section 6.01 Construction of Project Improvements ...................................................................23 Section 6.02 Construction of Project Improvements in Compliance with , Redevelopment Plan and Municipal Land Use Law Approvals; Budget and Government Approvals... ... ......... ... ............... ....... ............... ...... ......... 23 Section 6.03 Submissions of Project Improvements in Phases.................................................... 24 Section 6.04 Relocation of Utilities......................... ......................................... ..... ...................... 25 Section 6.05 Prevailing Wages ... ................................................................................................. 25 Section 6.06 First Source Employment..... ..................... ............................. ......... ....................... 25 Section 6.07 Project Labor Agreement.... .................. ......... ........... ...... ......... ............................... 25 Section 6.08 Affirmative Action....................................................................... .............. ............. 25 Section 6.09 Nondiscrimination During Construction; Equal Opportunity................................. 26 Section 6.10 Maintenance of Redevelopment Area..................................................................... 27 Section 6.11 Traffic Impact Study ...............................................................................................27 Section 6.12 Traffic............................... ...................................................................................... 27 Section 6.13 Neighborhood Impacts...... ......... ........................ ............... .................... .................. 27 Section 6.14 No Warranty................................ ........................................................ .................... 27 Section 6.15 Estoppel Certificates............................................ .......................... ......................... 28 Section 6.16 Cooperation.................... ............ ............ ... .............. ................................ ................ 28 Article VII Project Oversight Section 7.01 Progress Meetings................................................................................................... 29 Section 7.02 Progress Reports.................................. ............................................ ....................... 29 Section 7.03 Access to Property....................................................... ........................................... 29 Section 7.04 Submissions and Presentations to the Borough ...................................................... 30 Article VIII General Development Requirements Section 8.01 Scope of Undertaking. ...... ..................... ... ......... ....................... ........... ......... .......... 31 11 Section 8.02 Standards of Construction.. ........................... .................... .... ..... ........ ..................... 31 Section 8.03 Compliance With Applicable Law.......................................................................... 31 Section 8.04 Payment of Project Costs................... ...... ...... ...... ........... .............. .......................... 31 Section 8.05 Liens..................................................................................................... ................... 31 Article IX Approval of Applications For Governmental Approvals Section 9.01 Applications for Governmental Approvals............................................................. 32 Section 9.02 Borough Cooperation.............................................................................................. 32 Section 9.03 Submission of Plans and Specifications ................................................................. 32 Article X Representations and Warranties; Redeveloper Covenants Section 10.01 Representations and Warranties by the Redeveloper............................................ 33 Section 10.02 Representations and Warranties by the Borough.................................................. 34 Section 10.03 Delivery of Documents by the Redeveloper......................................................... 35 Section 10.04 Mutual Representations................. ................. ...... ...... ...... .............. ............... ....... 36 Section 10.05 Redeveloper Covenants .................. ................. ............ ............. ............................ 36 Section 10.06 Declaration of Covenants and Restrictions ........................................................... 38 Section 10.07 Effect and Duration ofthe Covenants................................................................... 38 Section 10.08 Enforcement of Covenants by the Borough.......................................................... 38 Article XI Security for Construction of Project Improvements Section 11.01 Construction Performance Security...................................................................... 40 Section 11.02 Performance and Payment Bonds.... ......... ................................... ......................... 40 Article XII Certificates of Occupancy and Completion Section 12.01 Certificate of Occupancy........ ........................ ....................... .......................... ..... 42 Section 12.02 Certificate of Completion ................. ...... .............. ............ .................... ................ 42 Article XIII Transfers Section 13.01 Prohibition Against Speculative Development..................................................... 44 Section 13.02 Prohibition Against Transfers.. ...... ......... ........ ............... ........ ......... .................. .... 44 Section 13.03 Retention of Title to Borough Property or Private Property; Redeveloper to Maintain its Existence........ ......... .................... ...... ...... ................ 44 Section 13.04 Permitted Transfers............................................................................................... 44 Section 13 .05 Notice of Permitted Transfers....................... ........ ...... .............. ........ ....... ............. 45 Section 13.06 Transfers ofInterests in Which Control is Transferred ........................................ 45 111 Section 13.07 Transfers Void...................................................................................................... 47 Article XIV Indemnification; Insurance Section 14.01 Redeveloper Indemnification................................................................................ 48 Section 14.02 Insurance Required ............................................................................................... 49 Article XV Mortgage Financing; Notice of Default to Mortgagee; Right to Cure Section 15.0 I Mortgage Financing.............................................................................................. 51 Section 15.02 Notice of Default to the Redeveloper and Right to Cure...................................... 51 Section 15.03 No Guarantee of Construction or Completion by Holder..................................... 52 Section 15.04 Borough's Option to Pay Mortgage Debt or Purchase Land ................................53 Article XVI Additional Termination Rights Section 16.01 Additional Termination Rights of Borough................................ .......................... 54 Article XVII Events of Default and Remedies Section 17.01 Events of Default ................... .................... ............ .............. ................................. 55 Section 17.02 Force Majeure....................................................................................................... 56 Section 17.03 Remedies Upon Events of Default by the Redeveloper........................................ 57 Section 17.04 Remedies Upon Events of Default by the Borough.............................................. 58 Section 17.05 Specific Performance............................................................................................ 58 Section 17.06 Failure or Delay .................................................................................................... 59 Section 17.07 Remedies Cumulative....................... ...................... ............... ............................... 59 Section 17.08 Continuance of Obligations .................................................................................. 59 Section 17.09 Mitigation.............................................................................................................. 59 Section 17.10 Documents to be Delivered Upon Termination.................................................... 59 Section 17.11 Agreement Not to Develop Upon Termination .................................................... 59 Article XVIII Miscellaneous Section 18.01 Notices.................................................................................................................. 61 Section 18.02 Conflict of Interest ................................................................................................ 62 Section 18.03 No Consideration for Redevelopment Agreement................................................ 62 Section 18.04 Lender Changes.......... ..................... ......... ............................................................ 62 Section 18.05 Non-Liability of Officials and Employees ofthe Borough .................................. 63 Section 18.06 Non-Liability of Officials and Employees of Redeveloper ..................................63 Section 18.07 Uncontrollable Circumstance................ ............ .................. .............................. .... 63 Section 18.08 Public Safety, Social and Fiscal Impacts; Traffic Improvements......................... 63 IV Section 18.09 No Brokerage Commissions ................................................................................. 63 Section 18.10 Provisions Not Merged With Deeds ..................................................................... 63 Section 18.11 Successors and Assigns......................................................................................... 64 Section 18.12 Titles of Articles and Sections .............................................................................. 64 Section 18.13 Severability........................................................................................................... 64 Section 18.14 Modification of Redevelopment Agreement ........................................................ 64 Section 18.15 Execution of Counterparts .................................................................................... 64 Section 18.16 Prior Agreements Superseded..... .............. ............... .................... ...... ................... 64 Section 18.17 Waivers and Amendments in Writing................................................................... 64 Section 18.18 Drafting Ambiguities; Interpretation ....................................................................64 Section 18.19 Governing Law................................ ................................... ...... .............. .............. 64 Section 18.20 Arbitration............................................................................................................. 65 Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16 Exhibits Borough Council Resolution Requesting Determination of Need Assessment Redevelopment Area Assessment Borough Planning Board Resolution Regarding Determination of Need Borough Council Resolution Determining Area in Need of Redevelopment Borough Council Resolution Directing Planning Board to Prepare Redevelopment Plan Redevelopment Plan Planning Board Resolution Determining Redevelopment Plan Consistent with Master Plan Borough Council Ordinance Approving and Adopting Redevelopment Plan Borough Council Resolution Tentatively Designating Redeveloper Project Schedule Form of Performance and Payment Bond Project Improvements Description Form of Declaration of Project Covenants Form of Project Labor Agreement Affirmative Action Language Redeveloper Ownership Structure v REDEVELOPMENT AGREEMENT (the "Redevelopment Agreement"), dated as of , 2007, by and between: THE BOROUGH OF CARTERET a municipal corporation of the State of New Jersey with offices at Carteret Borough Hall, 61 Cooke Avenue, Carteret, New Jersey 07008, acting in the capacity of a redevelopment entity pursuant to the provisions of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-l et seq. as amended and supplemented (the "Redevelopment Law") and its respective successors and assigns (the "Borough"), and CARTERET TOMORROW, L.L.C. a limited liability company formed under the laws of the State of New Jersey with offices at 2120 McCarter Highway, Newark, New Jersey 07104 and its successors and assigns (the "Redeveloper" and, together with the Borough, the "Parties"). W-I-T-N-E-S-S-E-T-H: WHEREAS, on June 3, 2004, the Borough Council adopted resolution number 04-191, a true and correct copy of which is attached hereto as Exhibit 1, requesting that the Borough Planning Board (the "Planning Board") determine whether certain real property located within the Borough constitutes an "area in need of redevelopment" pursuant to the Redevelopment Law; and WHEREAS, a Property assessment entitled "Redevelopment Area Assessment: Roosevelt Avenue Industrial Park Project Property, Carteret, New Jersey" dated July 6, 2004 ("Property Assessment"), a true and correct copy of which is attached hereto as Exhibit 2, of certain properties commonly known as Block 6.02, Lots 6, 7 and 13 on the tax map of the Borough (the "Assessment Area") was prepared by Beacon Planning and Consulting Services, L.L.C. ("BPCS") and concluded that Block 6.02, Lots 6 and 7 of the Assessment Area met the statutory requirements to be determined to be an "area in need of redevelopment" under the Redevelopment Law; and WHEREAS, on August 25, 2004, the Planning Board adopted a resolution of findings and conclusions, a true and correct copy of which is attached hereto as Exhibit 3, based upon the Property Assessment determining, among other things, to recommend to the Borough Council that Block 6.02, Lots 6 and 7 of the Assessment Area be designated an "area in need of redevelopment" by the Borough; and WHEREAS, on August 26, 2004, the Borough Council, following the recommendation of the Planning Board, adopted resolution number 04-263, a true and correct copy of which is attached hereto as Exhibit 4, determining that Block 6.02, Lots 6 and 7 of the Assessment Area constitute an "area in need of redevelopment" under the Redevelopment Law; and 1 WHEREAS, on October 7, 2004, the Borough Council adopted resolution number 04- 317, a true and correct copy of which is attached hereto as Exhibit 5, directing the Planning Board to prepare a redevelopment plan; and WHEREAS, BPCS prepared a redevelopment plan (the "Redevelopment Plan") for the Roosevelt Avenue Light Industrial District, dated December 30, 2004, a true and correct copy of which is attached hereto as Exhibit 6; and WHEREAS, on February 23,2005, the Planning Board adopted a resolution of findings and conclusions, a true and correct copy of which is attached hereto as Exhibit 7, determining that the Redevelopment Plan is not inconsistent with the Borough's Master Plan or the Master Plans of Woodbridge, Rahway and Linden, the Middlesex County Master Plan or the State Development and Redevelopment Plan and endorsing and recommending final adoption of the Redevelopment Plan; and WHEREAS, on February 17, 2005, the Borough Council, pursuant to Section 7 of the Redevelopment Law (N.J.S.A. 40A: l2A-7) and based on the recommendation of the Planning Board, adopted ordinance number 05-9, a true and correct copy of which is attached hereto as Exhibit 8, approving and adopting the Redevelopment Plan; and WHEREAS, on August 25, 2005, the Borough Council, acting in its capacity as a Redevelopment Entity for the Borough, adopted resolution number 05-268, a true and correct copy of which is attached hereto as Exhibit 9, tentatively designating Carteret Tomorrow as redeveloper of the Property, subject to the successful negotiation of a redevelopment agreement; and WHEREAS, on August 30, 2005, the parties conducted a meeting and discussed the preliminary framework for a redevelopment agreement; and WHEREAS, on January 23, 2006, Carteret Tomorrow requested that the Borough change the tentative designation of redeveloper of the Property from Carteret Tomorrow, a Partnership to Carteret Tomorrow, L.L.C.; and WHEREAS, on February 9, 2006, the Borough Council, acting in its capacity as a Redevelopment Entity for the Borough, adopted resolution number 06-71, changing the tentative designation of redeveloper of the Property from Carteret Tomorrow, a Partnership to Carteret Tomorrow, L.L.C.; and WHEREAS, in order to set forth the terms and conditions under which the Parties shall carry out their respective obligations with respect to the construction of the Project in accordance with the Redevelopment Plan, the Parties have determined to execute this Redevelopment Agreement. NOW, THEREFORE, for and in consideration of the mutual promises, representations, covenants and agreements contained herein and the undertakings of each Party to the other and such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby and to bind its successors and assigns, do mutually promise, covenant and agree as follows: 2 ARTICLE I DEFINITIONS AND INTERPRETATIONS SECTION 1.01. Defmitions. In this Redevelopment Agreement, unless a different meaning clearly appears from the context: "Acquisition Funds" is defined in Section 3.06. "Administrative Fee" is defined in Section 4.03. "Affiliate" means with respect to the Redeveloper, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with the Redeveloper. For purposes of this definition, the term "control" (including the correlative meanings of the terms "controlled by" and "under common control with") shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of the Redeveloper, whether through the ownership of voting securities or by contract or otherwise. "Agreement or Redevelopment Agreement" means this "Redevelopment Agreement," executed between the Borough the Borough and the Redeveloper as the same may be amended or supplemented from time to time in accordance with its terms. "Applicable Law" means any statute, law, constitution, charter, ordinance, resolution, judgment, order, decree, rule, regulation, directive, interpretation, standard or similarly binding authority which, in any case, shall be enacted, adopted, promulgated, issued or enforced by any Governmental Authority, and/or court of competent jurisdiction that relates to or affects the Parties or either of them, the Redevelopment Area, the Project Improvements, or any portion thereof, the performance by the Parties of their respective obligations or the exercise by the Parties of their respective rights under this Redevelopment Agreement, including without limitation, the Municipal Land Use Law, the Redevelopment Law and the Long Term Tax Exemption Law. "Borough" means the Borough of Carteret, a political subdivision of the State of New Jersey, and its permitted successors and assigns. "Borough Costs" is defined in Section 4.03. "Borough Council" means the governing body of the Borough. "Borough Event of Default" means, with respect to the Borough, an Event of Default, as such term is defined in Section 17.01 hereof. "Borough Indemnified Parties" means the Borough and its officers, elected officials, agents, employees, contractors and consultants. "Certificate of Completion" means a certificate or certificates certifying that the Redeveloper has performed its duties and obligations under this Redevelopment Agreement with respect to the Project Improvements or certifying that the Project Improvements, or any portion thereof, have been Completed; provided however, to the extent that the Project Improvements, or 3 any portion thereof, have been Substantially Completed, the Certificate to be provided shall certify that the Project Improvements, or any portion thereof, have been Substantially Completed. "Certificate of Occupancy" means a permanent Certificate of Occupancy, as such term is defined in the New Jersey Administrative Code, issued with respect to all or a portion of the Project upon completion of all or a portion of the Project Improvements. "Change in Law" means the enactment, promulgation, modification or repeal of or with respect to any Applicable Law subsequent to the Effective Date, which establishes requirements affecting performance by the Party relying thereon as a justification for its failure to perform any obligation under this Agreement which are materially more burdensome than and adversely inconsistent with the requirements which are applicable to the performance of such obligations as of the Effective Date. Actions or inactions of the Borough shall not constitute a Change in Law giving rise to a suspension of any performance or other obligation of the Borough under this Agreement; provided however, that the actions or inactions (including without limitation, any denial or conditional approval) of the Borough Planning Board shall not be deemed to constitute a "Change in Law" for purposes of relieving the Redeveloper of any performance or other obligation under this Agreement. However, if the Borough Planning Board action is appealed, the Redeveloper's performance obligations hereunder shall be tolled and/or extended by the amount of time during which such appeal of the Borough Planning Board's action (whether approval, denial or conditional approval) is continuing. "Clean-up Costs" means all actual and necessary costs incurred for Remediation of Hazardous Substances, whether known or unknown, on, under or migrating to or from the Redevelopment Area which allows for the Project Improvements. Clean-up Costs shall include, without limitation, the costs of Remediation, Consultant Costs, transportation costs, legal fees, permit fees and costs, filing fees, monitoring costs, Governmental Authority oversight fees and costs, and costs to retain any licensed professionals for review and oversight in lieu of or on behalf of the Governmental Authority pursuant to Environmental Laws. "Closing Date" means the date on which the Borough will convey fee simple ownership to the Redeveloper of the Redevelopment Area, or any portion thereof, which the Borough acquires through its powers of condemnation, if necessary. "Commencer ment of] Construction" means the undertaking by Redeveloper of any actual physical construction of any Project Improvements, including site preparation, environmental remediation, construction of new structures or construction or upgrading of infrastructure. "Commencement Default Date" means the respective date(s) by which physical construction of the Project Improvements, or any portion thereof, as the case may be, shall be commenced by the Redeveloper, as set forth on Exhibit 10 hereto (the "Project Schedule"). "Completr e 1, r ed1 or non 1" means with respect to the Project Improvements, or any portion thereof, that (a) all work related to the Project Improvements, or a portion thereof, or any other work or actions to which such term is applied has been completed, acquired and/or installed in accordance with this Agreement and in compliance with Applicable Laws so that (i) 4 the Project Improvements, or any portion thereof that have been completed, as the case may be, may, in all respects, be used and operated under the applicable provisions of this Agreement, or (ii) with respect to any other work or action to which such term is applied, that the intended purpose of such work or action has been completed, (b) all permits, licenses and approvals that are required in order that a Certificate of Completion can be issued for the Project Improvements, or any portion thereof that have been completed, or such other work or action to which such term is applied are in full force and effect, and (c) such "Completion" has been evidenced by a written notice provided by the Redeveloper (with respect to the Project Improvements, or any portion thereof), which determination is reasonably acceptable to the Borough. "Completion Date(s)" are as set forth in the Project Schedule, Exhibit 10 attached hereto. "Condemnation Funds" is defined in Section 3.06. "Condemnation Counsel" is defined in Section 3.04(c). "Condemnation Costs" is defined in Section 3.05. "Construction Financing" means conventional financing to be obtained by the Redeveloper for payment of the costs of constructing the Project Improvements. "Construction Performance Security" means the Construction Guarantee described in Section 4.08 hereof, or the Performance and Payment Bond described in Section 11.02 hereof, and included as Exhibit 11 hereto, in either case, securing the Redeveloper's obligations to complete construction ofthe Project Improvements as provided in this Agreement. "Construction Period" means the period of time that commences on the Commencement of Construction date and ends on the Completion Date. "Consultant Costs" is defined in Section 4.03. "Control" (including the correlative meanings of the terms "controlled by" and "under common control with"), as used with respect to the Redeveloper, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of the Redeveloper, whether through the ownership of voting securities or by contract or otherwise. "Declaration" is defined in Section 10.06 hereof. "Declaration of Taking" is the document filed in any action commenced under the Eminent Domain Act and in the Office of the Clerk of Middlesex County, duly executed by an executive official of the Borough, which declaration shall include information by N.J.S.A. 20:3- 17, such as: (a) a statement that possession of all or some part of the property being condemned is thereby being taken by the condemnor, (b) a specific reference to the statute, article and section thereof, under which the action and Declaration of Taking is authorized, (c) a description of the plot plan of the property being condemned, and, if not the entire property, the portion thereof of which possession is being taken, sufficient for identification thereof, specifying the municipality in which the same is located, the street number of the property, if any, the lot and block number of the property as designated upon the current assessment map, if any; (d) the 5 names and addresses of all condemnees known to the condemnor after reasonable investigation, and the nature of their interests in the property; ( e) a statement of the estate or interest therein being condemned; (t) a statement of the sum of money estimated by the condmemnor to be just compensation for the taking; and (g) any other information required by the Eminent Domain Act. "Easement Property" is defined in Section 3.07 "Effective Date" means the date on which this Agreement is executed by the Parties or such other date as may be agreed to by the Parties. "Eminent Domain Act" means the law governing the acquisition by condemnation of real property by the Borough, as codified at N.J.S.A. 20:3-1 et seq. as the same may be amended or supplemented from time to time. "Environmental Laws" means all federal, state, regional, and local laws, statutes, ordinances, regulations, rules, codes, consent decrees, judicial or administrative orders or decrees, directives or judgments relating to environmental contamination, damage to or protection of the environment, environmental conditions, or the use, handling, processing, distribution, generation, treatment, storage, disposal, manufacture or transport of Hazardous Substances materials or wastes, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") (42 U.S.c. 999601-9675); the Resource Conservation and Recovery Act of 1976 ("RCRA") (42 U.S.c. 996901, et seq.); the Clean Water Act (33 U.S.c. 99 1251, et seq.); the New Jersey Spill Compensation and Control Act (the "Spill Act") (NJ.S.A. 58:10-23.11, et seq.); the Industrial Site Recovery Act, as amended ("ISRA") (NJ.S.A. 13:IK-6, et seq.); the New Jersey Underground Storage of Hazardous Substances Act (NJ.S.A. 58:10A-21, et seq.), the New Jersey Water Pollution Control Act (NJ.S.A. 58:10A-1 et seq.); the New Jersey Environmental Rights Act (NJ.S.A. 2A:35A-1, et seq.); and the rules and regulations promulgated thereunder. "Estimated Clean-up Costs" is defined in Section 5.05. "Estoppel Certificate" is defined in Section 6.15. "Event of Default" means the occurrence of any Redeveloper Event of Default or Borough Event of Default, as the case may be. "Exhibit(s)" means any exhibit attached hereto which shall be deemed to be a part of this Agreement as if set forth in full in the text hereof. "Force Maieure" is defined in Section 17.02. "Foreclosure" is defined in Section 15.03. "Governmental Approvals" means all necessary reviews, consents, permits or other approvals of any kind legally required by any local, county, state or federal governmental or quasi-governmental entity required to be obtained in order to construct the Project Improvements. 6 "Governmental Authority" means the federal government, the State, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any other governmental entity with authority or jurisdiction over any part of the permitting, Remediation, construction or operation of the Project Improvements or the Redevelopment Area, or pursuant to Environmental Laws including without limitation, the Planning Board and the NJDEP. "Hazardous Substance" means any element, compound, material, mixture, substance, chemical or waste that is listed as hazardous, toxic, a pollutant or contaminant, or dangerous in the Environmental Laws or under any applicable federal, state, county or local statute, rule, regulation, ordinance or order. "Holder(s)" is defined in Section l5.0l(a). "Holder Failure" is defined in Section l5.04(b). "Interim Costs Agreement" means the agreement executed by the Parties on January 23, 2006 providing that the Redeveloper shall be responsible for fees, costs and expenses incurred by the Borough in the negotiation and execution of a redevelopment agreement. "Interim Costs Escrow Account" is defined in Section 4.04(a). "ISRA" is defined in Section 5.03. "Land Use Plan" is defined in the Redevelopment Plan. "Liabilities" is defined in Section l4.0l(b). "Local Improvement Law" means N.J.S.A. 40A:56-1 et seq., as amended and supplemented. "Long Term Tax Exemption Law" means N.J.S.A. 40A:20-l et seq., as amended and supplemented. "Master Plan" means, collectively, the Borough's Master Plan dated 1973 and the Master Plan Reexamination Report adopted in June 1998. "Minority" is defined in Section 6.08(b). "Municipal Land Use Law" means N.J.S.A. 40:55D-l et seq., as amended and supplemented. "Natural Resource Damages" means the loss, liability or damages owed to any natural resource trustee, including, without limitation, a state, the federal government or Indian tribe, to compensate for the loss or injury to natural resources. "NJDEP" means the New Jersey Department of Environmental Protection. 7 "Offer Price" means 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 3.05 hereof, which amount shall be established by appraisal report(s) commissioned by the Borough. "Off-Site Improvements" means any improvements outside the Redevelopment Area, made necessary by the On-Site Improvements, that are to be constructed and maintained by the Borough (on behalf of, and paid for by, the Redeveloper) and/or by the Redeveloper in order that the Redeveloper may satisfy the requirements of any applicable Governmental Approvals, as more particularly described in the Plans and Specifications. Any new street constructed within the Redevelopment Area shall be dedicated to and accepted by the Borough. "On-Site Improvements" means all buildings, structures, improvements, site preparation work and amenities within the Redevelopment Area, more specifically described in Exhibit 12, which are necessary for the implementation and completion of the redevelopment of the Redevelopment Area. "Performance and Payment Bond" is defined in Section 11.02. "Permitted Transfers" is defined in Section 13.04. "Person" means any individual, sole proprietorship, corporation, partnership, joint venture, limited liability company, trust, unincorporated association, Urban Renewal Entity, institution, or any other entity. "Planning Board" or "Borough Planning Board" means the Planning Board of the Borough of Carteret. "Plans and Specifications" is defined Section 9.03. "Preliminary Real Property Appraisal Reports" is defined in Section 3.01. "Prevailing Wage Act" means N.J.S.A. 34:11-56.25 et seq., as amended and supplemented. "Progress Meeting" is defined in Section 7.01. "Progress Report" is defined in Section 7.02. "Project Agreement" means any agreement to which the Redeveloper is a party or third- party beneficiary relating to the Project Improvements and/or the sale, leasing, financing or use thereof. "Project Costs" means the costs of design, permitting and construction of the Project Improvements, as set forth in the budget prepared by the Redeveloper and submitted to the Borough pursuant to Section 6.02(b )(ii). "Project Improvements" means, collectively, On-Site Improvements and Off-Site Improvements, as more specifically described in Exhibit 12, including, but not limited to, 8 grading, site drainage, drainage outfalls, walkways, water service lines for the Project Improvements, including hook-ups and service laterals from a building to the curb for water, storm and sanitary sewers, and other utilities, including electric, gas, telephone and cable services (which are to be built underground), subsurface excavation and other site preparatory work for the Project Improvements, lighting within parking areas, landscaping, fire hydrants and interior roadways, in each case, as more particularly described in the Master Plan and the Plans and Specifications; provided however, that "Project Improvements" shall not be deemed to include any improvements to be undertaken by third-party utilities (i.e. electric, water, sewer, cable, telephone, etc.), regardless as to whether the cost of such improvements is to be paid by the Redeveloper. "Project Labor Agreement" means the agreement providing for union labor in all contracts between the Redeveloper and any contractor(s) and subcontractor(s), as set forth in Exhibit 14 hereto. "Project Schedule" means the schedule for the design, permitting, financing, construction and completion ofthe Project by the Redeveloper, as set forth in Exhibit 10 hereto. "Project Team" is defined in Section 10.03(d). "Property Notice" is defined in Section 3.03. "Public Body" as defined in the Prevailing Wage Act, is the State, any of its political subdivisions, any authority created by the Legislature of the State and any instrumentality or agency of the State or of any of its political subdivisions. "Public Work(s)" as defined in the Prevailing Wage Act, is construction, reconstruction, demolition, alteration, custom fabrication, or repair work, or maintenance work, including painting and decorating, done under contract and paid for in whole or in part out of funds of a Public Body, except work performed under a rehabilitation program. Public Work is also construction, reconstruction, demolition, alteration, custom fabrication, or repair work, done on any property or premises, whether or not the work is paid for from public funds, if, at the time of the entering into of the contract: (a) Not less than 55% of the property or premises is leased by a Public Body, or is subject to an agreement to be subsequently leased by the Public Body; and (b) The portion of the property or premises that is leased or subject to an agreement to be subsequently leased by the Public Body measures more than 20,000 square feet. "Qualified Minority Business Enterprises" shall have the meaning ascribed to such term in Section 6.08(b). "Redeveloper" means Carteret Tomorrow, L.L.C., a limited liability company formed under the laws of the State of New Jersey with offices located at 2120 McCarter Highway, Newark, New Jersey 07104, and its successors and assigns. "Redeveloper Covenants" shall have the meaning ascribed to such term in Section 10.05. "Redeveloper Event of Default" means, with respect to the Redeveloper, an Event of Default as defined in Section 17.01. 9 "Redevelopment Area" means the area designated by the Borough as being an "area in need of redevelopment" under the Redevelopment Law, consisting of approximately 11.98 acres, designated as Block 6.02, Lots 6 and 7 on the Borough's Tax Map. "Redevelopment Law" means the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-l et seq., as amended and supplemented. "Redevelopment Plan" means the "Redevelopment Plan - Roosevelt Avenue Light Industrial District, Borough of Carteret, New Jersey", dated December 20, 2004 attached hereto as Exhibit 6, as the same may be amended or supplemented from time to time in accordance with the Redevelopment Law and this Agreement. "Relocation Act" is defined in Section 3.08. "Relocation Assistance Law" is defined in Section 3.08. "Relocation Costs" is defined in Section 3.08. "Relocation Entity" is defined in Section 3.08. "Remediatfel. [edl. fingl or [ionl" means the investigation, study, planning, design, clean-up, removal, containment, disposal, dispersal, treatment (including in-situ and ex-situ treatment), management, remediation, stabilization, neutralization of Hazardous Substances required by Governmental Authority and/or pursuant to Environmental Laws which allows for the Contemplated Use, including, but not limited to any operations, maintenance, and monitoring activities that may be required after completion of the foregoing. "Scheduled Completion Date" means the scheduled date of issuance of a Certificate of Completion, as set forth in the Project Schedule, subject to any extensions granted in accordance with this Agreement. "Section" means a section or subsection of this Agreement. "Site Plan" means a plan depicting those aspects of the Project Improvements required pursuant to the Borough's site plan ordinance and pursuant to N.J.S.A. 40:55D-7. "State" means the State of New Jersey. "Substantial Completion" or "Substantially Completed" means that the requirements set forth in clauses (a) through (c), inclusive, of the definition of "Completion" have been satisfied, with the exception of certain immaterial portions of the work relating to the Project Improvements that have been Completed, or such other work remains to be Completed as long as the Redeveloper, with respect to the Project Improvements, has prepared and delivered to the Borough a "punch list" of items requiring completion or correction in order for the Redeveloper to fully comply with the terms of this Agreement, (b) "punch list" items have been reasonably agreed to by the Borough, and (c) such "punch list" items are capable of being Completed within ninety (90) days of the date that Completion is certified, as set forth in the written notice provided under (c) of the definition of Completion, or such later date as is mutually acceptable to 10 the Parties, as long as the public health, welfare or safety is not impaired by such additional time for Completion; and provided further however, that all such "punch list" items shall be Completed under all circumstances within (i) one hundred eighty (180) days following the date that Completion is certified, as provided above, with respect to the exterior of any buildings and (ii) three hundred sixty-five (365) days following the date that Completion is certified, as provided above, with respect to the interiors of any buildings. "Substantial Completion" shall be evidenced by issuance of a Temporary Certificate of Occupancy for the Project Improvements, or any portion thereof that has been Substantially Completed. "Temporary Certificate of Occupancy" means a temporary Certificate of Occupancy issued with respect to the Project Improvements, or a portion thereof upon Substantial Completion of the Project Improvements or such portion thereof. "Term" means that period of time from the Effective Date of this Agreement until the Borough issues the final Certificate of Occupancy for the Project Improvements; provided however, that with respect to any portion of the Project Improvements, "Term" shall mean the period of time from the Effective Date until the Borough issues a final Certificate of Occupancy for such portion. "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. "Transfer" is defined in Section 13.03. "Uncontrollable Circumstance" means the events or conditions set forth below, or any combination thereof, that has (have) had or may reasonably be expected to have a material adverse effect on the rights or obligations of the Parties to this Agreement; provided however, that such act, event or condition shall be beyond the reasonable control of the Party relying thereon as justification for not performing obligation or complying with any condition required of such Party under the terms of this Agreement: (a) An act of God, such as severe natural conditions such as landslide, lightning strike, earthquake, flood, hurricane, blizzard, tornado or other severe weather conditions, severe sea conditions affecting delivery of materials or similar cataclysmic occurrence, nuclear catastrophe, an act of a public enemy, war, blockade, insurrection, riot, general unrest or general restraint of government and people; provided however, that any question as to whether any such conditions should be deemed to constitute an Uncontrollable Circumstance shall be considered in light of good engineering practice and industry standards to protect against reasonably foreseeable severe weather conditions (such as, but not limited to, seasonable temperature and precipitation), taking into account the geographic location and topographic and geotechnical conditions of the Redevelopment Area. (b) "Change in Law". ( c) Action or inaction by any Governmental Authority which precludes or delays the Party relying thereon from performing its obligations under this Agreement; provided however, 11 that (i) such action or failure to act shall not be the result of the willful, intentional or negligent action or inaction of the Party relying thereon, (ii) neither the contesting of any action or failure act, in good faith, nor the reasonable failure to so contest shall constitute or be constructed as a willful, intentional or negligent action or inaction by such Party, (iii) such action, inaction, issuance, denial or suspension shall not be the result of the illegal or unlawful actions of the Party relying thereon, and/or (iv) decisions interpreting Federal, State and local tax laws that are generally applicable to all business taxpayers shall not constitute an Uncontrollable Circumstance under this paragraph (c). (d) The suspension, termination, interruption, denial, failure of or delay in the renewal or issuance of any Governmental Approval; provided however, that such suspension, termination, interruption, denial or failure of or delay in renewal or issuance shall not be the result of the willful, intentional or negligent action or inaction of the Party relying thereon and that neither the contesting of any such suspension, termination, interruption, denial or failure of renewal or issuance, in good faith, nor the reasonable failure to so contest (up to thirty (30) days following such suspension, termination, interruption or failure of renewal or issuance) shall constitute or be construed as a willful, intentional or negligent action or inaction by such Party. The Redeveloper's failure to timely and substantially complete submission for a Governmental Approval or failure of the Redeveloper to agree to any reasonable condition to the issuance or renewal of such Governmental Approval shall not constitute an Uncontrollable Circumstance under this paragraph (d). (e) The intentional or unintentional damage or destruction of the Project Improvements or any portion thereof or of the Redevelopment Area by contractors, as long as the Redeveloper has implemented and complied with customary and reasonable security measures and has maintained customary and reasonable insurance against the occurrence of such acts. (f) Delay caused by or arising out oflegal action or lawsuits filed in challenge of the issuance or grant of any Governmental Approval, including, but not limited to, local Planning Board approval of the Redeveloper's Site Plans. (g) Delay caused by or arising out of the inability of any contractor or materials supplier to make timely delivery or materials of long-lead items due to strike, labor unrest, national emergency or generally recognized materials shortage, or other delays in the industry. The Parties acknowledge that the acts, events or conditions set forth in paragraphs (a) through (g) of this definition are intended to be the only acts, events or conditions which may (upon satisfaction of the criteria set forth above) constitute an Uncontrollable Circumstance. "Urban Renewal Entity" means an urban renewal entity formed by the Redeveloper in accordance with the Long Term Tax Exemption Law and this Redevelopment Agreement. "USEP A" is the United States Environmental Protection Agency" "Utilities" means municipal water, sanitary sewer and storm water provisions, natural gas, electricity, and voice and data transmission facilities. "WRAP" is defined in Section 3.08. 12 13 SECTION 1.02. Interpretation and Construction. In this Redevelopment Agreement, unless the context otherwise requires: (a) The terms "hereby", "hereof", "hereto", "herein", "hereunder" and any similar terms, as used in this Redevelopment Agreement, refer to this Redevelopment Agreement, and the term "hereafter" means after, and the term "heretofore" means before the date of delivery of this Redevelopment Agreement. (b) Words importing a particular gender mean and include correlative words of every other gender and words importing the singular number mean and include the plural number and VIce versa. (c) Words importing persons mean and include firms, associations, partnerships (including limited partnerships), trusts, corporations, limited liability companies and other legal entities, including public or governmental bodies, as well as natural persons. (d) Any headings preceding the texts of the several Articles and Sections of this Redevelopment Agreement, and any table of contents or marginal notes appended to copies hereof, shall be solely for convenience of reference and shall not constitute a part of this Redevelopment Agreement, nor shall they affect its meaning, construction or effect. (e) Unless otherwise indicated, all approvals, consents and acceptances required to be given or made by any Person or Party hereunder shall not be unreasonably withheld, conditioned, or delayed. (f) Each right of the Borough to review or approve any actions, plans, specifications, or other obligations of the Redeveloper hereunder shall be made by the Borough official(s) with legal authority to conduct such review or grant such approvals. Any review contemplated by this Agreement shall be made in a timely manner. Upon request of the Redeveloper, the Borough shall inform the Redeveloper of all officials with the required authority. (g) All notices to be given hereunder and responses thereto shall be given, unless a certain number of days is specified, within a reasonable time, which shall not be less than ten (10) days nor more than twenty (20) days, unless the context dictates otherwise. (h) Unless otherwise indicated, any "fees and expenses" shall be required to be customary and reasonable. [END OF ARTICLE I] 14 ARTICLE II DESCSRIPTION OF REDEVELOPMENT AREA AND THE PROJECT IMPROVEMENTS SECTION 2.01. Redevelopment Area. The Redevelopment Area consists of the surface, subsurface and airspace above the real property described in the definition thereof and upon which the Project Improvements will be constructed. SECTION 2.02. Proposed Development: Project Improvements. The overall development of the Redevelopment Area will include the Project Improvements to be constructed by the Redeveloper as further described in the Site Plans to be prepared by Redeveloper and approved by the Borough and the Planning Board, as applicable, pursuant to the Municipal Land Use Law. [END OF ARTICLE II] 15 ARTICLE III ACQUISITION OF REDEVELOPMENT AREA; BOROUGH ACQUISITION RIGHTS SECTION 3.01. Preliminary Real Property Appraisal Reports. Pursuant to the terms of the Interim Costs Agreement entered into by and between the Parties hereto, the Borough has commissioned the preparation of preliminary real property appraisals for each parcel of property contained within the Redevelopment Area ("Preliminary Real Property Appraisal Reports"). 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 seven (7) days of its receipt of each preliminary real property appraisal, have the right to terminate this Agreement where the valuations represented exceed that which it considers a reasonable dollar value for the properties. If the Redeveloper does not reject the Preliminary Real Property Appraisal Reports within such seven (7) day period, they shall be deemed accepted and the right to terminate this Agreement set forth in this Section shall be deemed to be null and void. The Preliminary Real Property Appraisal Reports shall not be effective for any other purpose under this Agreement other than to provide the Redeveloper, or the Borough, with a basis for privately negotiating with the record owners for conveyance of any or all of the parcels of property contained within the Redevelopment Area as set forth in Section 3.02 or Section 3.03 hereof, respectively, and the Redeveloper's rights to terminate this Agreement pursuant to this Section. SECTION 3.02. Acquisition of Property by the Redeveloper. If the Redeveloper has not terminated this Agreement pursuant to Section 3.01 hereof, the Redeveloper will use its best efforts, at its sole cost and expense, to acquire the Redevelopment Area. The Redeveloper will notify the Borough within ten (10) days of any purchase contracts it enters into to acquire each or any of the parcels located within the Redevelopment Area. The Redeveloper will pay all real estate taxes and other impositions lawfully due on any property it acquires from the date that the Redeveloper acquires its interest in same. SECTION 3.03. Property Notice. After unsuccessfully making a written offer and exercising its good faith efforts to acquire the subject property through negotiations with an owner of any portion of the Redevelopment Area, the Redeveloper will provide written notice to the Borough of same ("Property Notice"). The Property Notice will also include the Condemnation Funds required by Section 3.06 hereof and copies of any title work, surveys, appraisals for the subject property and an estimate of Clean-up Costs in the Redeveloper's possession at that time. With respect to estimated Clean-up Costs, the Redeveloper's inclusion of such costs in the Property Notice shall not relieve the Redeveloper from compliance with Section 5.05 hereof. SECTION 3.04. Condemnation Procedures. (a) Upon receipt of a Property Notice and provided that the Redeveloper is in compliance with this Agreement, the Borough agrees to exercise its power of condemnation in connection with each portion of the Redevelopment Area identified by the Redeveloper in the Property Notice described in Section 3.03 hereof, in accordance with the Redevelopment Law and the Eminent Domain Act. The Borough will obtain any and all appraisals for each of the relevant parcel(s) identified in the Redeveloper's 16 Property Notice. The Borough will be responsible for the commencement of bona-fide good faith negotiations to acquire the subject property from the owner(s) of record. (b) Pursuant to Section 3.04(a), if the Borough's bona-fide good faith negotiations to acquire the subject property from the owner(s) of record are unsuccessful, then the Borough shall commence condemnation proceedings to acquire property described in the Property Notice by eminent domain. Any condemnation complaint shall include appropriate reservation of rights clauses with respect to the Borough's recovery of Clean-up Costs pursuant to Environmental Laws. After a consultation with the Redeveloper, the Borough shall institute any action to recover such Clean-up Costs that the Borough deems necessary and appropriate. In no event shall the Borough file and record a Declaration of Taking as to any contaminated parcel of property requiring Remediation described in a Property Notice until the estimated Clean-up Costs are determined in accordance with Section 5.05 hereof. Simultaneously with the filing of a Declaration of Taking, the Borough shall deposit into court the estimated fair market value of the property described in a Property Notice as if Remediated. Upon motion of any condemnee to withdraw the funds on deposit, the Borough shall object to the withdrawal of any amount that leaves a balance less than or equal to the Estimated Clean-up Costs, as defined in and determined pursuant to Section 5.05 hereof, and shall request an order allowing the court to hold the Estimated Clean-up Costs in escrow or in trust as potential cost recovery damages. (c) With respect to any condemnation proceedings instituted by the Borough and with respect to any other legal work required by the Borough relating to the Project Improvements, the Redeveloper agrees that the Borough will be entitled to appoint an attorney or attorneys to act as special counsel to conduct said condemnation proceedings and to perform such other work for the Borough ("Condemnation Counsel"). The Redeveloper further agrees to reimburse the Borough for the services provided to the Borough by special counsel services will be compensated at the following hourly rates: $350 for senior partners; $300-325 for partners, $250 for senior associates, $175-225 for associates and $150 for paralegals. The Redeveloper also agrees that it will reimburse Condemnation Counsel for customary out-of-pocket disbursements. In addition, at the Redeveloper's expense, the Borough will have the right to hire appraisers, surveyors and such other professionals as may reasonably be required in connection with such condemnation proceedings. The selection of appraisers, surveyors and such other professionals shall be at the Borough's discretion; however, prior to retaining such professiona1(s), the Borough shall use reasonable efforts to consult with the Redeveloper to solicit their opinion and/or recommendation with respect to the professional(s) being consulted. (d) Each parcel of property contained within the Redevelopment Area acquired by the Borough under this Article III will 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 within the State, subject only to permitted title exceptions, namely title exceptions that do not adversely affect the construction, financing, marketing or use of the Project Improvements. The Redeveloper agrees that it will be responsible for premiums incurred for any title insurance policy or policies, obtained or requested by the Redeveloper, insuring its interest in the relevant property(ies). The Redeveloper specifically acknowledges that the Borough makes no representation or warranty, expressed or implied or otherwise, as to the Redevelopment Area's fitness for use for any 17 particular purpose, condition, durability thereof, or that it will be suitable for the Redeveloper's purposes. ( e) The Borough will promptly file and record in the Office of the Clerk of Middlesex County, the deed to the relevant parcel(s) of property(ies) (or portions thereof) if acquired by negotiated purchase and a Declaration of Taking if acquired by condemnation proceedings. If the Borough has not designated the Redeveloper as grantee on any such instrument, the Borough will then immediately convey the property interest acquired to the Redeveloper by proper instrument and subject to payment of all outstanding financial obligations of the Redeveloper in accordance with this Agreement. (f) The Closing Date will be no later than ten (10) days after the Borough acquires fee simple, insurable title to any portion of the Redevelopment Area. The Closing Date may be such earlier or later date as may be mutually acceptable to the Parties. (g) Upon conveyance as described in this Section, the Redeveloper will acquire such property in an "as is" condition and, as such, the Redeveloper will assume all responsibility and liability for complying with Environmental Laws and Governmental Authorities and bear all costs ofRemediating such property as more fully set forth in Article V hereof. SECTION 3.05. Condemnation Costs. The Redeveloper will pay those reasonable costs, expenses and fees incurred by the Borough in acquiring properties identified in the Redeveloper's Property Notice(s), whether acquired by negotiated sale or by condemnation. These costs are hereinafter referred to as the "Condemnation Costs" and include, but are not limited to: (a) The Offer Price or the ultimate price paid or to be paid to property owners of the relevant parcels of property identified in the Redeveloper's Property Notice, which will be the just compensation value determined by the condemnation process either in bona-fide negotiations with the property owner(s) or as a result of condemnation proceedings; (b) The amount paid in compromise or settlement of any claim for just compensation (as to which the Borough agrees it will not settle or compromise any claim without the Redeveloper's consent, which consent will not be unreasonably denied or delayed); (c) Any Relocation Costs, as defined in Section 3.08; (d) Reasonable attorneys' fees for the Borough's 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 ofthe eminent domain action; (e) Title insurance costs; (f) Liability and property insurance premiums and costs; and (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 18 fees, environmental investigations, court deposit (required by N.J.S.A. 20:3-18) and court costs and fees associated with bona-fide negotiations, commissioners' hearings, court proceedings and challenges to the condemnation. SECTION 3.06. Condemnation Funds. Simultaneously with the delivery of a Property Notice, the Redeveloper will deposit with the Borough for each parcel of property identified therein the amount of Thirty-Five Thousand Dollars ($35,000.00) (the "Condemnation Funds"). The Condemnation Funds will be used to pay the Condemnation Costs as set forth in Section 3.05, except for the Offer Price As a condition precedent to the Borough's commencement of condemnation proceedings, the Redeveloper will also deposit with the Borough the amount equal to one hundred fifteen percent (115%) of the Offer Price (the "Acquisition Funds"), which shall be added to the Condemnation Funds. The Redeveloper shall deposit said Acquisition Funds within three (3) business days of the parties determination of the Estimated Clean-up Costs in accordance with Section 5.05 hereof. Within ten (10) days of the receipt by the Redeveloper of a written notice from the Borough that the amount of the Condemnation Funds (excluding the Acquisition Funds) has decreased to Five Thousand Dollars ($5,000.00), the Redeveloper will replenish the Condemnation Funds to the amount of Thirty-Five Thousand Dollars ($35,000.00). Should the Condemnation Costs incurred by the Borough exceed the amount in the Condemnation Funds, the Redeveloper will pay the full amount of those costs within seven (7) business days of the receipt of written notice from the Borough that such costs are due. Should the Borough be required to deposit funds into court or make payment to the property owner for the acquisition of any portion of the Redevelopment Area, and there are insufficient funds in the Condemnation Funds to cover those costs, the Redeveloper will pay the full amount of those costs to the Borough within seven (7) business days of the receipt of written notice from the Borough that such costs are due (it being agreed that the Borough shall not be required to advance any such funds), such costs to be deemed a lien on the Redevelopment Area in favor of the Borough until paid unless other reasonably satisfactory security is posted. The Redeveloper will take all necessary steps and make all necessary payments to or on behalf of the Borough in a timely fashion to meet this obligation of this Agreement. SECTION 3.07. Condemnation of Easements. Provided the same is reasonably necessary, the Redeveloper may, in accordance with Section 3.03 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 Improvements (e.g., an easement on neighboring property for the benefit of the Project Improvements ("Easement Property"). Upon receipt of such Property Notice and provided that the Borough has the right to exercise condemnation authority over such property interests, the Borough shall proceed in accordance with Section 3.04 hereof. The Redeveloper will be responsible for all Condemnation Costs and Clean-up Costs incurred in connection with the condemnation of any Easement Property. The Redeveloper will also assume all responsibility and liability for Remediating and complying with Environmental Laws and Governmental Authorities in connection with any Easement Property as more fully set forth in Article V hereof. 19 SECTION 3.08. Relocation. In connection with the acquisition of the Redevelopment Area through the exercise of its powers of condemnation, the Borough or such entity designated by the Borough (the "Relocation Entity") will remove and relocate any displaced tenants, licensees or other occupants thereof in full compliance with the requirements of the Relocation Assistance Law of 1967, N.J.S.A. 52:3IB-I et seq. (the "Relocation Assistance Law") and the Relocation Assistance Act of 1971, N.J.S.A. 20:4-1 et seq. (the "Relocation Act"), the regulations promulgated thereunder. All costs of compliance, including preparation of a State- approved Workable Relocation Assistance Plan ("WRAP") for the Redevelopment Area, reasonable Borough administrative costs associated with implementing same, including the salary of a relocation officer, shall be referred to as "Relocation Costs". SECTION 3.09. Disposition of Redevelopment Area Upon Termination of Redevelopment Agreement. In the event that, subsequent to the acquisition of any portion of the Redevelopment Area and prior to the issuance of the final Certificate of Completion for the Project Improvements, an Event of Default by the Redeveloper occurs and the Borough terminates the Redeveloper's designation as the redeveloper of the Redevelopment Area, title to the portiones) of the Redevelopment Area conveyed to the Redeveloper and with respect to which no Certificate of Completion has been issued shall revert to the Borough or its designee pursuant to reverter clauses in such conveyance documents without any further act on the Borough's part and the estate conveyed by the Borough by deed to the Redeveloper shall immediately terminate and revest in the 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 Redevelopment Area by the Borough to the Redeveloper shall be made upon a condition subsequent to the effect that upon the occurrence of an Event of Default by the Redeveloper prior to the issuance of a Certificate of Completion with respect to any relevant structure(s) constructed as part of the Project Improvements, the Borough, at its option may, in accordance with this section, unilaterally declare a reversion of the title, and all the rights and interests in and to such portiones) of the Redevelopment Area to the Borough, and that such title and all rights and interests to and in such portiones) of the Redevelopment Area shall revert to the Borough without further action. However, such condition subsequent and any reversion of title as a result thereof in the 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 Redevelopment Area for which a Certificate of Completion has been issued by the Borough. The Borough's right to declare such reversion of the title is not intended as a waiver by the Redeveloper of any rights it may have to challenge the validity of such a declaration if the Redeveloper believes such right is improperly exercised. SECTION 3.10. Related Actions. (a) The Borough and the Redeveloper hereby specifically acknowledge that the current owner of the Redevelopment Area (the "Current Owner") has filed an action in New Jersey Superior Court challenging the Borough's designation of the Redevelopment Area as an area in need of redevelopment and the Borough's adoption of the Redevelopment Plan. That action is currently pending before the Superior Court, Appellate Division, is captioned Carteret Industrial Proiect v. Borough Council of the Borough of Carteret, et aI., and bears Docket No. A-1893-05Tl. The Parties acknowledge that, if the Current Owner successfully challenges the Borough's designation of the Redevelopment Area as an area in need of redevelopment, the Borough's ability to successfully acquire the Redevelopment Area under 20 the Eminent Domain Act will be negatively affected. If, in that event, the Borough has already acquired the Redevelopment Area under the Eminent Domain Act, the Redeveloper agrees that is will reimburse the Borough for any damages the Borough is ordered to pay the Current Owner. (b) The Borough hereby agrees that, in the event the Current Owner successfully challenges the Borough's designation of the Redevelopment Area as an area in need of redevelopment, the Borough will take such actions as may be necessary to cure such defects in said designation and, if legally possible, re-designate the Redeveloper as the redeveloper of the Redevelopment Area. [END OF ARTICLE III] 21 ARTICLE IV FINANCIAL OBLIGATIONS SECTION 4.01. The Redeveloper's Financial Commitment. The Redeveloper represents and warrants that it has obtained or can obtain and will commit the requisite equity and debt financing in an amount necessary to implement and complete the Project Improvements. SECTION 4.02. Project Costs. All costs of implementing this Agreement and completing the Project Improvements, including Borough Costs as specified in Section 4.03 hereof, and the costs incurred by the Redeveloper will be borne by the Redeveloper. SECTION 4.03. Borough Costs. In addition to the Redeveloper's estimated costs for the Project Improvements, the Redeveloper agrees to provide funding to the Borough for all reasonable out-of-pocket costs incurred by the Borough in connection with the redevelopment of the Redevelopment Area (the "Borough Costs"). The Borough Costs shall include, but not be limited to (a) any fees and costs of any professional consultant, contractor or vendor retained by the Borough including attorneys, technical consultants, planners, financial consultants and appraisers, among others, and all out-of-pocket costs and expenses of the Borough (hereinafter also referred to as "Consultant Costs"); and (b) an annual administrative fee to the Borough (the "Administrative Fee") in an amount, as permitted by State law, which shall be sufficient to defray all reasonable administrative and operational costs of the Borough to the extent that same are not equitably allocated to other redevelopment projects. SECTION 4.04. Payment of Borough Costs. (a) The Redeveloper agrees that it will make timely payment or reimbursement to the Borough for all Borough Costs. The Redeveloper has established an escrow account, pursuant to the Interim Costs Agreement (the "Interim Costs Escrow Account"), having an initial balance of fifty thousand dollars ($50,000). The Redeveloper agrees that it will replenish the Interim Costs Escrow Account in the event that the balance drops below twenty thousand dollars ($20,000). Funds in the Interim Costs Escrow Account will be applied to the payment or reimbursement of the Borough Costs as provided in this Redevelopment Agreement. At least ten (10) days prior to making any disbursement from the Interim Costs Escrow Account, written notice of the proposed disbursement shall be mailed to the Redeveloper, setting forth: (a) the amount of the disbursement; (b) the name of the person, company or entity designated to receive payment; and (c) a description, in reasonable detail, of the particular cost to be paid or reimbursed in accordance with this Redevelopment Agreement. If the Redeveloper does not object to such disbursement within ten (10) days of receipt of such notice, the Redeveloper will be deemed to have acquiesced to the same. Any dispute concerning payment of the Borough Costs shall be resolved in accordance with the procedures set forth in NJ.S.A. 40:55D-53.2a. At the Completion Date, as evidenced by the issuance of the Certificate of Completion, or upon termination of this Redevelopment Agreement, except in the event of a termination caused by an Event of Default by the Redeveloper, any money remaining in the Interim Costs Escrow Account shall be disbursed to the Redeveloper, except that the Borough may retain an amount sufficient to cover reasonably budgeted expenses. 22 (b) On the Effective Date of this Agreement, the Interim Costs Agreement shall cease to be operative and effective and the terms and obligations contained therein shall be subsumed by the terms contained herein. To the extend that the Interim Costs Escrow Account is less than fifty thousand dollars ($50,000) immediately prior to the execution of this Agreement, the Redeveloper, upon execution of this Agreement, shall replenish the Interim Costs Escrow Account to increase the balance to fifty thousand dollars ($50,000). (c) On the Effective Date and on the anniversary of the Effective Date in each following year until the Project Improvements are completed, the Borough shall provide an estimate to the Redeveloper of the upcoming year's Administrative Fee, which Redeveloper shall pay to the Borough in equal monthly installments. SECTION 4.05. Governmental Approval Fees. The Redeveloper will pay all fees for permits required by the Borough (in accordance with standard fees provided in the Borough's ordinances) and any other Governmental Authority for the construction and development of the Project Improvements. Redeveloper shall pay all other permit fees, which include any permit fees payable by the Borough or Redeveloper to all required Governmental Authorities other than the Borough, or for which the Borough is required to reimburse other Governmental Authorities or is required to pay other third party contractors retained by or on behalf of the Borough to perform services that the Borough would otherwise be required to perform itself. The Borough shall use reasonable efforts to predetermine the amounts of such costs referenced in the preceding sentence and give Redeveloper prior notice thereof. SECTION 4.06. Developer's Fee. The Redeveloper agrees to pay to the Borough a non-refundable developer's fee in the amount of Two Hundred Fifty Thousand dollars ($250,000.00), payable as follows: One Hundred Twenty-Five Thousand dollars ($125,000.00) will be paid immediately upon the execution of this Agreement and One Hundred Twenty-Five Thousand dollars ($125,000.00) will be paid no later than July 31, 2007. SECTION 4.07. Development Impact Fee. The Redeveloper will comply with the Borough's Development Impact Fee, as the same may be amended and supplemented from time to time. SECTION 4.08. Construction Guarantee. On the Effective Date, the Redeveloper agrees to establish and maintain no less that $500,000 in equity, either cash or other liquid assets, until issuance of a final Certificate of Completion for the Project Improvements. The Redeveloper hereby acknowledges and agrees that it will immediately forfeit, to the Borough, such equity, along with the property that comprises the Redevelopment Area, which the Redeveloper agrees to maintain title to in its own name, if a Redeveloper Event of Default occurs and the Borough terminates this Agreement prior to the issuance of a final Certificate of Completion for the Project Improvements. [END OF ARTICLE IV] 23 ARTICLE V ENVIRONMENTAL MATTERS SECTION 5.01. Environmental Compliance in General. As between the Redeveloper and the Borough, the Parties acknowledge that there may be present Hazardous Substances on, under or migrating to or from the Redevelopment Area that require Remediation. The Redeveloper agrees and specifically assumes any and all responsibility, liability and costs for such Remediation of the Redevelopment Area or anything affected off-site, as required by applicable Environmental Laws and Governmental Authorities, regardless of whether the property was conveyed by the Borough to the Redeveloper in accordance with the proceedings set forth in Article III hereof or acquired directly from the owner of record. The Redeveloper also agrees that it shall obtain all requisite approvals from the appropriate Governmental Authority for the Remediation of the Redevelopment Area, including but not limited to Letters of Nonapplicability, or No Further Action Letters and covenants not to sue from the NJDEP with respect to any such environmental conditions and any remediation funding agreement that may be required by the NJDEP. Any costs of environmental compliance not paid by the present owners ofthe relevant properties will be the responsibility of the Redeveloper. SECTION 5.02. Redeveloper Indemnification of Borough. In conjunction witih the Indemnification provisions of Article XIV hereof, the Redeveloper covenants and agrees, at its expense, to pay and to indemnify, protect, defend and hold the Borough Indemnified Parties harmless from and against all liability, losses, damages (including, without limitation, Natural Resource Damages), demands, costs, claims, lawsuits, administrative proceedings, fines, penalties and expenses (including attorneys' fees and court costs) of every kind, character and nature arising from or associated with (i) the performance or any failure or delay of performance by the Redeveloper of its responsibilities and obligations to Remediate the Redevelopment Area or anything affected off-site, as required by applicable Environmental Laws and Governmental Authorities; and (ii) the presence of Hazardous Substances, whether known or unknown, on, under or migrating from the Redevelopment Area. SECTION 5.03. Industrial Site Recovery Act Compliance. The Redeveloper, as agent for Borough, will prepare and submit all applications and documentation necessary to comply with the requirements of all Environmental Laws, including but not limited to the Industrial Site Recovery Act, N.J.S.A. 13:IK-6 et seq. ("ISRA") prior to the Borough's acquisition of any property under Article III hereof. With the Borough's cooperation, the Redeveloper will use its best efforts to obtain from the NJDEP Letters of Nonapplicability, No Further Action Letters, or other appropriate documentation evidencing compliance with ISRA. The Borough will not be responsible for any environmental costs associated with the failure to obtain ISRA clearance Letters of Nonapplicability. The Redeveloper will assume the responsibility for such environmental compliance. SECTION 5.04. Borough Cooperation and Environmental Reports. The Parties acknowledge that any proposed activities associated with Remediation of the Redevelopment Area or compliance with Environmental Laws will be reviewed, approved and coordinated with the Borough's professionals prior to submission to the NJDEP or other applicable Governmental Authority for review and, where appropriate, approval. Each party, when possessing title to any 24 portion of the Redevelopment Area, will sign any necessary applications or other submissions to the NJDEP, USEPA or other regulatory body required for Remediation and/or compliance with Environmental Laws. Notwithstanding the foregoing, should off-site disposal of either Hazardous Substances or non-Hazardous Substances be required as part of the Remediation of the Redevelopment Area, Project Improvements or compliance with Environmental Laws, the Borough will not be required to sign any manifests relating to such disposal and the Redeveloper shall be listed as the generator of such material. The Borough and the Redeveloper will provide to each other and their respective engineering consultants any and all copies of environmental reports that either party obtains or has possession of in connection with the Redevelopment Area. SECTION 5.05. Determination of Estimated Clean-up Costs in Condemnation. In its discretion, the Redeveloper may conduct a Preliminary Assessment and a Site Investigation or other investigation necessary to obtain a determination of estimated Clean-up Costs associated with the Remediation of the Redevelopment Area (the "Estimated Clean-up Costs"). The Preliminary Assessment and any Site Investigations will comply with the NJDEP's Technical Requirements for Site Remediation, N.J.A.C. 7:26E-l et seq. Upon delivery of a Property Notice with respect to any portion of the Redevelopment Area, the Redeveloper will complete its determination of Estimated Clean-up Costs, if any, and provide the Borough with the Estimated Clean-up Costs for such property(ies) as soon as practicable. The Redeveloper hereby acknowledges that the Borough has retained a consultant to investigate the environmental condition of the Redevelopment Area and to prepare an estimate of costs associated with reporting and/or remediating any environmental condition(s) relating to the property(ies). The cost of such consultant will be reimbursed by the Redeveloper pursuant to Section 3.04(c) hereof. The final determination of Estimated Clean-up Costs will be the higher estimate of that prepared by the Borough's consultant and that prepared by the Redeveloper's consultant, if any. SECTION 5.06. Redeveloper's Waiver of Pre-Condemnation Environmental Assessments. At any time prior to the filing of a verified complaint for the condemnation of any property(ies), the Redeveloper may request that the Borough proceed on the basis of an "as clean" appraisal and a reservation of rights with respect to a separate action to recover Clean-up Costs, waiving the pre-condemnation environmental assessments. The Borough may comply with such a request in its discretion. [END OF ARTICLE V] 25 ARTICLE VI CONSTRUCTION OF PROJECT IMPROVEMENTS SECTION 6.01. Construction of Project Improvements. (a) Proiect Improvements. The Redeveloper will construct or cause to be constructed the Project Improvements. The Redeveloper will design, permit and construct the Project Improvements, at the Redeveloper's sole cost and expense, except insofar as any grant funds have been received by the Borough and made available to the Redeveloper for use in the Project Improvements. Physical work on the Project Improvements shall be commenced on or prior to the applicable Commencement Default Date for the Project Improvements and shall be Completed on or prior to the applicable Completion Default Date for the Project Improvements, as set forth on Exhibit 10 hereto. (b) Extensions of Commencement Default Dates. In the event that the Redeveloper is unable, for reasonable cause, to commence physical work on the Project Improvements prior to the Commencement Default Date, the Redeveloper shall provide written notice to the Borough at least thirty (30) days prior to such Date, setting forth in reasonable detail (a) the reason for the failure to satisfy the required tasks necessary to reach the Commencement Default Date, (b) the Redeveloper's proposed actions to remedy any delay, and (c) the Redeveloper's proposed schedule for reaching the Commencement Default Date and requesting an extension of up to six (6) months in the Commencement Default Date, which extension shall not be denied by the Borough unless the Borough reasonably believes that such extension will render Completion of the Project Improvements on or prior to the applicable Completion Default Date plus the duration of the requested extension (not to exceed six (6) months) substantially impossible or impractical. In the event that an extension of the Commencement Default Date is granted, Exhibit 10 hereto shall be revised and restated (as of the date such extension is granted) to reflect the Commencement Default date, as extended. The Borough's approval of any such extension shall not limit in any manner the rights of the Borough or diminish the obligations of the Redeveloper with respect to the Project Improvements under this Redevelopment Agreement. SECTION 6.02. Construction of Project Improvements in Compliance with Redevelopment Plan and Municipal Land Use Law Approvals: Budszet and Government Approvals. (a) The Project Improvements shall be designed and constructed by the Redeveloper in accordance with the Redevelopment Plan approved by the Borough and the approvals obtained by the Redeveloper under the Municipal Land Use Law. Any site plan and subdivision applications made to the Planning Board shall be consistent with the Redevelopment Plan. To the extent that the concept plan that is ultimately approved by the Borough for the Project Improvements is at variance with the Redevelopment Plan in effect at the time of the approval of this Agreement, the Borough agrees to use its best efforts to amend the Redevelopment Plan, subject to Governmental Approvals, to be consistent with the approved concept plan. (b) At least forty-five (45) days prior to the date that the Redeveloper expects to commence construction of the Project Improvements, the Redeveloper shall submit to the Borough for its review and approval, among other things, (i) the estimated date that construction of the Project Improvements will commence, and (ii) a budget setting forth an estimate of the costs of construction for the Project Improvements. The approved budget shall be used to 26 determine, among other things, the amount of the Construction Performance Security to be obtained pursuant to Section 11.01 hereof. The Redeveloper shall also provide such supporting documentation that the Redeveloper reasonably believes will be necessary or beneficial to the Borough for the Borough's review. (c) At least ninety (90) days prior to the date that the Redeveloper reasonably expects to commence physical construction of the Project Improvements (as set forth in the notice provided to the Redeveloper pursuant to paragraph (b ) above), the Redeveloper shall provide the Borough with written notice setting forth, at a minimum, (i) a list of Governmental Approvals required for construction of the Project Improvements, (ii) the current status of the submittal, review and/or issuance of the Governmental Approvals for the Project Improvements, and (iii) an estimate of the date on which each of such Governmental Approvals is expected to be received (which shall be prior to the date on which the Redeveloper expects to commence physical construction for the Project Improvements, to the extent that such Governmental Approvals are required to be obtained prior to, or as a condition precedent, to the commencement of construction. The Redeveloper shall also provide such supporting documentation as the Redeveloper reasonably believes will be necessary or beneficial to the Borough for the Borough's review of such notice. The list of Governmental Approvals shall be updated by the Redeveloper as part of the Progress Reports required to be provided pursuant to Section 7.02 hereof. The Redeveloper and the Borough shall cooperate and use diligent efforts to secure, or cause to be secured, any and all Governmental Approvals which may be required to be obtained from any governmental agency having jurisdiction over the Project Improvements. The Borough agrees to fully cooperate with the Redeveloper in obtaining the Governmental Approvals, to the extent reasonably requested by the Redeveloper, including without limitation, execution (as a co-applicant) of any application relating to such Governmental Approvals. (d) Subsequent to submission of the budget and list of Governmental Approvals, as provided in paragraphs (b) and (c) above, the Redeveloper shall provide written notice to the Borough of any deviation from such previously submitted budget or list of Governmental Approvals. In the event that the budget is increased in an amount deemed to be material by the Borough (in the exercise of its reasonable discretion), the Redeveloper shall submit such modified budget to the Borough for its review and approval (such approval not to be unreasonably withheld). Any such approved increase shall be utilized by the Parties in establishing the increased amount of the Construction Performance Security to be provided by Redeveloper pursuant to Section 11.01 hereof. SECTION 6.03. Submission of Project Improvements in Phases. Nothing contained in this Article VI or Article IX hereof shall preclude the Redeveloper from submitting the documentation required under Section 6.02 or Article IX hereof with respect to the Project Improvements on a phased basis, each such phase constituting a portion (but less than all) of the Project Improvements; provided however, that all such submittals shall be made on or prior to the Commencement Default Date and/or Completion Default Date for the Project Improvements. If the Redeveloper elects to submit on a phased basis, as aforesaid, the provisions for review and approval by the Borough shall be applied to the phased submittals separately as submitted and, subject to the provisions of Section 18.07 hereof relating to Uncontrollable Circumstances, any 27 approved phase as to which construction has commenced will be prosecuted to Completion continuously and in a period of time which is reasonable in light of the size of such phase and the nature of construction methods employed. SECTION 6.04. Relocation of Utilities. The Redeveloper acknowledges that providers of Utilities may have certain rights with respect to the Redevelopment Area and may own certain facilities located therein. The Redeveloper agrees that it is its sole responsibility to undertake the appropriate measures to negotiate with, acquire, relocate or otherwise address the existence of these Utilities and improvements and easements therefore, in order to complete construction of the Project Improvements, as provided by this Redevelopment Agreement. To the extent reasonably requested by the Redeveloper, the Borough shall cooperate in facilitating the installation and/or relocation of any such affected utilities. SECTION 6.05. Prevailing Wages. The parties hereby acknowledge that the Prevailing Wage Act, N.J.S.A. 34:11-56.25, et seq. (the "Prevailing Wage Act") applies only to the extent this Agreement is deemed to constitute a Public Works contract and the construction of the Project Improvements is deemed to constitute a "Public Work," as defined in the Prevailing Wage Act. The Redeveloper shall determine whether the Prevailing Wage Act applies and, to the extent that the Prevailing Wage Act applies, the Redeveloper shall be responsible for costs associated therewith. SECTION 6.06. First Source Employment. The Redeveloper will make good faith efforts to employ and shall provide in its contracts with its contractors and subcontractors that they must make good faith efforts to employ residents of the Borough in the construction of the Project Improvements. Consistent with market wages and to the greatest extent feasible, the Redeveloper shall ensure that residents of the Borough are employed in the operation of the Project Improvements. The Redeveloper agrees to cooperate with the Borough or its designee in developing a plan to coordinate training programs and employment recruitment efforts for Borough residents. The Redeveloper will cooperate with efforts to recruit Borough residents for all employment opportunities in connection with the Project Improvements, including participation in the Borough job fairs or similar events. The Redeveloper agrees to meet with appropriate Borough officials to determine the status of recruitment and training efforts, and to plan future employment training and recruitment activities. All contracts entered into by the Redeveloper for the construction of the Project Improvements shall contain appropriate language to effectuate this provision. The Redeveloper shall submit quarterly reports to the Borough regarding compliance with this Article. In addition, the Redeveloper covenants to enforce its contracts with its contractors and subcontractors if such parties are not in compliance with this Article VI. SECTION 6.07. Proiect Labor Agreement. The Redeveloper agrees that it will use and incorporate the Project Labor Agreement, attached hereto as Exhibit 14, into each contract with contractors and subcontractors executed in connection with the Project Improvements. SECTION 6.08. Affirmative Action. During the construction of the Project Improvements, the Redeveloper covenants that it will use good faith efforts to comply with, and shall provide in its contracts with its contractors and subcontractors, the following: 28 (a) it will comply with the provisions of the Affirmative Action Language annexed hereto as Exhibit 15. (b) when hiring workers in each construction trade, or when engaging contractors, the Redeveloper agrees, pursuant to the Borough's request, to use its good faith efforts to employ: (i) Minority workers in each construction trade or (ii) Minority contractors consistent with the followings goals: (as to workers) -- a goal of employing fifteen (15%) percent Minority workers out of the total number of workers employed as part of the work force in connection with the Project Improvements; or (as to contractors) -- a goal of contracting with Qualified Minority Business Enterprises for fifteen (15%) of the dollar value of the hard costs of total procurements to be awarded in connection with the Project Improvements. For purposes of this section, the term "Minority" shall mean persons who are Female, African-American, Hispanic, Portuguese, Latino, Asian-American, American Indian or Alaskan natives. The term "Qualified Minority Business Enterprises" shall mean a business which has its principal place of business in New Jersey, is independently owned and operated, is at least 51 % owned and controlled by Minority group members and is qualified. (c) it will undertake a program of local preference to facilitate entering into contracts with and/or purchasing goods and services from local merchants and businesses located within the Borough, including preferences for local retail and restaurant businesses, especially any local merchants and businesses which may be relocated within the Redevelopment Area, who operate uses which are permitted by the Redevelopment Plan and compatible with the Project Improvements as determined by the Redeveloper. (d) it will endeavor to comply with the above stated goals by, among other things, considering employment of applicants, contractors and vendors who are from a pool registered by the Borough or its designee. (e) where applicable it will at all times conform to the laws, regulations, policies of the State, the Federal government, and other governmental bodies with respect to affirmative action and equal employment opportunities requirements, and particularly those which are imposed as a condition to receipt of any government-sponsored funding for the Project Improvements, notwithstanding any other provision of this Redevelopment Agreement to the contrary. (f) The Redeveloper and its contractors and subcontractors shall submit reports regarding their compliance with this Section as the Borough may reasonably require. (g) The Redeveloper covenants to enforce its contracts with its contractors and subcontractors if such parties are not in compliance with this Section. SECTION 6.09. Nondiscrimination During Construction: Equal Opportunity. The Redeveloper for itself and its successors and assigns agrees that in the construction of the Project Improvements: (a) The Redeveloper will not discriminate against any employee or applicant for employment because of race, color, religion, creed, national origin, ancestry, physical handicap, 29 age, marital status, affectional preference or gender. The Redeveloper will ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, creed; national origin, ancestry, physical handicap, age, marital status, or gender. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment, advertising, layoff or termination, rates of payor other forms of compensation, and selection for training, including apprenticeship. The Redeveloper agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. (b) The Redeveloper will, in all solicitations or advertisements for employees placed by or on behalf of the Redeveloper state that all qualified applicants will receive consideration for employment without regard to race, color, religion, creed, national origin, ancestry, physical handicap age, marital status, affectional preference or gender. (c ) The Redeveloper will cause the foregoing provisions to be inserted in all contracts for any work covered by this Redevelopment Agreement so that such provisions will be binding upon each contractor and subcontractor. SECTION 6.10. Maintenance of Redevelopment Area. Following commencement of physical construction of the Project Improvements, the Redeveloper will maintain all areas of the Redevelopment Area including the buildings, parking areas, landscaping, streetscaping, sidewalks including curbing and traffic calming devices (but not the paved roadway, unless disturbed by the Redeveloper), trash collection and receptacles, and all such issues identified in the Borough Property Maintenance Code, S 222. SECTION 6.11. Traffic Impact Study. The Redeveloper will provide the Borough and the Planning Board with a traffic impact study for the Project Improvements in connection with its application for approval ofthe Site Plan. SECTION 6.12. Traffic. The Redeveloper and the Borough agree that the direction, flow and amount of traffic in and around the Redevelopment Area is an issue to be addressed during the construction of the Project Improvements, as well as after its completion. The Redeveloper will exert reasonable efforts to minimize the traffic effects of the Project Improvements upon the surrounding neighborhoods. SECTION 6.13. Neighborhood Impacts. The Redeveloper and the Borough acknowledge that the construction of the Project Improvements may have certain impacts on the neighborhoods in the vicinity of the Redevelopment Area and, in particular, adjacent redevelopment projects. Although it is anticipated that the Project Improvements 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 will 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 6.14. No Warranty. The Borough specifically acknowledges that, except as otherwise specifically set forth herein, the Redeveloper makes no representation or warranty, 30 expressed, implied or otherwise, as to the fitness of the Project Improvements or the Redevelopment Area for use for any particular purpose, condition or durability thereof, or that it will be suitable for the Redeveloper's purposes. No representations are made herein as to the requirements of any other agency or governmental entity other than the Borough. SECTION 6.15. Estoppel Certificates. Within fourteen (14) days following written request therefore by a Party hereto, or of any Holder, purchaser, tenant or other party having an interest in the Redevelopment Area, the other party shall issue a signed certificate ("Estoppel Certificate") either stating that this Redevelopment Agreement is in full force and effect and that there is no default or breach under this Redevelopment Agreement (nor any event which, with the passage of time and the giving of notice would result in a default or breach under this Redevelopment Agreement), or stating the nature of the default or breach or event, if any. In the event the Estoppel Certificate discloses such a default, breach or event, it shall also state the manner in which such default, breach and/or event may be cured. No more than a reasonable number of Estoppel Certificates may be requested per year. SECTION 6.16. Cooperation. The Parties shall fully cooperate with each other as necessary to effectuate the Project Improvements, including entering into additional agreements that may be required; provided however, that such actions and/or agreements shall not result in a material increase or decrease in the Borough's and the Redeveloper's respective obligations hereunder. [END OF ARTICLE VI] 31 ARTICLE VII PROJECT OVERSIGHT SECTION 7.01. Progress Meetings. The Parties agree to attend and participate in monthly progress meetings ("Progress Meetings") to report on the status of the Project Improvements and to review the progress under the Project Schedule. Progress Meetings may be held more frequently at the request of the Borough. The Borough shall give the Redeveloper seven (7) days advance written notice of any additional meetings. The Progress Meetings shall be held in the Borough Hall. Prior to the meeting, representatives of the Borough may visit the Redevelopment Area to inspect the progress of the work on the Project Improvements, in accordance with Section 7.03. The agenda for the Progress Meetings shall include, but not be limited to, (a) a status report with regard to Governmental Approval submissions and approvals, financial commitments, construction of the Project Improvements, compliance with the Redevelopment Plan and activities concerning marketing, sales and leasing. At the Progress Meetings, this information will be evaluated by the Borough to determine compliance with the terms and conditions of this Redevelopment Agreement and the Project Schedule. The Borough shall have the right at all reasonable times to inspect the construction contracts, Construction Performance Security, financing commitments and agreements, books and records pertinent to Project Improvements' construction contracts, leases, insurance policies, and such other agreements of the Redeveloper which are pertinent to the purposes of this Redevelopment Agreement and to the Progress Meetings in order to insure completion of the Project Improvements in accordance with the Project Schedule. SECTION 7.02. Progress Reports. The Redeveloper shall submit to the Borough a detailed monthly written progress report ("Progress Report") (or more frequent Progress Reports, if reasonably requested by the Borough) which shall include a description of activities completed, the activities to be undertaken prior to the next quarterly Progress Report, the status of all Governmental Approvals, an explanation of each activity, if any, which is showing delay, a description of problem areas, current and anticipated delaying factors and their estimated impact on performance of other activities and completion dates in the Project Schedule and an explanation of corrective action taken or proposed. The written progress report shall also contain the most current Estoppel Certificate. SECTION 7.03. Access to Property. The Borough and its authorized representatives shall have the right to enter the Redevelopment Area to inspect the Project Improvements and any and all work in progress for the purpose of furthering its interest in this Redevelopment Agreement. In no event shall the Borough's inspection of the Project Improvements (or any construction activities related thereto) be deemed acceptance of the work or be deemed to waive any right the Borough has under this Redevelopment Agreement. The Borough acknowledges hereby that the Redevelopment Area will be an active construction site and that the Redeveloper shall not be liable or responsible to the Borough, its employees or agents for injury to person or property sustained in connection with any such inspection, except to the extent that the Redeveloper violates the standard of due care owed to invitees. 32 SECTION 7.04. Submissions and Presentations to the Borough. The Redeveloper shall be required to provide the Borough with a copy of each and every application for Governmental Approvals submitted to Governmental Bodies at the same time the Redeveloper submits those applications to such Governmental Bodies. Prior to its submission of any site plan application, the Redeveloper shall be available to make a presentation to the Borough of such application and shall take into consideration reasonable comments of the Borough. [END OF ARTICLE VII] 33 ARTICLE VIII GENERAL DEVELOPMENT REQUIREMENTS SECTION 8.01. Scope of Undertaking. The services and responsibilities undertaken by the Redeveloper hereunder include all aspects of the design, development, and construction of the Project Improvements, including without limitation, all design, engineering, permitting and administrative aspects, the performance of or contracting for and administration and supervision of all physical work required in connection with the Project Improvements, arrangement for interim and final inspections and any other actions required to satisfy the requirements of any applicable Governmental Approvals, the administration, operation and management, or contracting for the administration, operation and management of the Project Improvements and all aspects of the funding of the Project Improvements (except as otherwise expressly provided in this Redevelopment Agreement), including equity funding and construction, interim and permanent financing, all at the sole cost and liability of the Redeveloper. SECTION 8.02. Standards of Construction. Without limitation, all work on the Project Improvements shall be performed in a good and workmanlike manner, with the materials called for under the Governmental Approvals being of such quality as is required by such Approvals and as are appropriate for a project of the character and quality of the Project Improvements. All construction shall be in accordance with the Uniform Construction Code, codified at N.J.A.C. 52:3-1 et seq., Class 1A or Class 1B, as appropriate, based on height and area, unless another class is specifically approved in writing by the Borough. SECTION 8.03. Compliance With Applicable Law. The Project Improvements and all materials, fixtures and equipment used or installed in connection therewith shall be in full compliance with all Applicable Laws. SECTION 8.04. Payment of Project Costs. The Redeveloper shall pay (or cause to be paid) when due, all costs and expenses, including, without limitation, all contractors' requisitions and the cost of materials and equipment incurred in connection with work on the Project Improvements and all fees and expenses of any consultants and professionals and like providers acting for (or on behalf of) the Redeveloper. SECTION 8.05. Liens. The Redeveloper shall indemnify and hold the Borough harmless from all liens, or claims or rights to enforce liens, against the Redevelopment Area, or the improvements arising out of any activities or work performed by (or on behalf of) the Redeveloper or labor or materials furnished to the Redeveloper under this Redevelopment Agreement. Without limitation, in all events, not less than ten (10) days prior to the date on which the Borough or the Redeveloper might be divested of any interest in the Redevelopment Area as a result of any such lien, the Redeveloper shall cause any such lien to be lifted and removed, by bonding or other action satisfactory to the Title Insurer and shall provide the Borough a current endorsement of the applicable Title Insurance Policy or Policies reflected that Title is free and clear of such lien. [END OF ARTICLE VIII] 34 ARTICLE IX APPROVAL OF APPLICATIONS FOR GOVERNMENT AL APPROVALS SECTION 9.01. Applications for Governmental Approvals. (a) The Redeveloper (at its sole cost and expense) shall apply for and obtain all Governmental Approvals necessary to construct and use the Project Improvements. The Redeveloper shall provide the Borough with a copy of each application for Governmental Approvals at such time as such applications are submitted. To the extent that application is made to the Borough, acting in its capacity as a Governmental Authority, the Borough agrees to process such applications in a timely and expeditious manner, in light of the circumstances related to such application. The Redeveloper shall provide the Borough with a copy of each Governmental Approval received by the Redeveloper with respect to the Project Improvements. (b) To the extent reasonably requested by the Redeveloper, and to the extent applicable, the Borough shall provide assistance and support to the Redeveloper in connection with any applications for any Governmental Approvals required to be obtained for or with respect to the Project Improvements. SECTION 9.02. Borough Cooperation. To the extent reasonably requested by the Redeveloper and, to the extent permitted by Applicable Law (and without violating its obligations as a governmental entity or regulatory body having competent jurisdiction over the Project Improvements), the Borough shall provide its support and assistance to the Redeveloper in facilitating the review of all plans, issuance of all permits, request for inspections and the conduct of such inspections through the appropriate Borough board, body or department, as applicable. SECTION 9.03. Submission of Plans and Specifications. The Redeveloper shall provide the Borough with copies of all plans and specifications prepared in connection with the Project Improvements ("Plans and Specifications"), or any portion thereof, for its review. To the extent that the Borough communicates comments with respect to such Plans and Specifications, such comments shall be addressed by the Redeveloper and, to the maximum extent practicable, incorporated into the final Plans and Specifications. [END OF ARTICLE IX] 35 ARTICLE X REPRESENT A TIONS AND WARRANTIES; REDEVELOPER COVENANTS SECTION 10.01. Representations and Warranties by the Redeveloper. The Redeveloper hereby represents and warrants the following to the Borough for the purpose of inducing the Borough to enter into this Redevelopment Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof (such representations and warranties to survive the termination or expiration of the Term of this Agreement): (a) The Redeveloper is a limited liability company organized under the laws of the State, is in good standing under the laws of the State, and has all requisite power and authority to carry on its business as now and whenever conducted, and to enter into and perform its obligations under this Redevelopment Agreement. (b) The Redeveloper has the legal power, right and authority to enter into this Redevelopment Agreement and the instruments and documents referenced herein to which the Redeveloper is a party, to consummate the transactions contemplated hereby, to take any steps or actions contemplated hereby, and to perform their obligations hereunder. (c) This Redevelopment Agreement has been duly authorized, executed and delivered by the Redeveloper; and is valid and legally binding upon the Redeveloper and enforceable in accordance with its terms. The execution and delivery thereof shall not constitute a default under or violate the terms of any indenture, agreement or other instrument to which the Redeveloper is a party. (d) No receiver, liquidator, custodian or trustee of the Redeveloper shall have been appointed as of the Effective Date, and no petition to reorganize the Redeveloper pursuant to the United States Bankruptcy Code or any similar statute that is applicable to the Redeveloper shall have been filed as of the Effective Date. (e) No adjudication of bankruptcy of the Redeveloper or a filing for voluntary bankruptcy by the Redeveloper under the provisions of the United States Bankruptcy Code or any other similar statute that is applicable to the Redeveloper shall have been filed. (f) No indictment has been returned against any partner of the Redeveloper with respect to any transaction related to the transactions contemplated by the terms of this Redevelopment Agreement or otherwise. (g) There is no pending or, to the best of the Redeveloper's knowledge, threatened litigation that would prevent the Redeveloper from performing its duties and obligations hereunder. 36 (h) There are no suits, other proceedings or investigations pending or, to the best of the Redeveloper's knowledge, threatened against the Redeveloper that would have a material adverse effect on the financial condition of the Redeveloper. (i) All materials and documentation submitted by the Redeveloper and its agents to the Borough and its agents were, at the time of such submission, and as of the Effective Date, materially accurate, and the Redeveloper shall continue to inform the Borough of any material and adverse changes in the documentation submitted. The Redeveloper acknowledges that the facts and representations contained in the information submitted by the Redeveloper are a material factor in the decision of the Borough to enter into this Redevelopment Agreement. (j) The Redeveloper is financially and technically capable of developing, designing, financing and constructing the Project Improvements. (k) The cost and financing of the Project Improvements is the responsibility of the Redeveloper, pursuant to the Redevelopment Plan and this Redevelopment Agreement. The Borough shall not be responsible for any cost whatsoever in respect to same. (1) The ownership structure of the Redeveloper is set forth in Exhibit 16. The Redeveloper shall, at such times as the Borough may request, furnish the Borough with a complete statement subscribed and sworn to by a .general member of the Redeveloper, setting forth all of the ownership interests of the Redeveloper, or other owners of equity interests of the Redeveloper and the extent of their respective holdings, and in the event any other parties have a beneficial interest in the Redeveloper, their names and the extent of such interest. SECTION 10.02. Representations and Warranties by the Boroue:h. The Borough hereby represents and warrants the following to the Redeveloper for the purpose of inducing the Redeveloper to enter into this Redevelopment Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof (such representations and warranties to survive the termination or expiration ofthis Agreement): (a) The Borough has the legal power, right and authority to enter into this Redevelopment Agreement and the instruments and documents referenced herein to which the Borough is a party, to consummate the transactions contemplated hereby, and to perform its obligations hereunder. (b) This Redevelopment Agreement has been duly authorized, executed and delivered by the Borough and is valid and legally binding upon the Borough and enforceable in accordance with its terms on the basis of laws presently in effect and the execution and delivery thereof shall not, with due notice or the passage of time, constitute a default under or violate the terms of any indenture, agreement or other instrument to which the Borough is a party. (c) Other than as described in Section 3.10 hereof, there is no pending or, to the best of the Borough's knowledge, threatened litigation that would in any way (i) contest or seek to invalidate the Redeveloper's ability to commence performance of its obligations under the Redevelopment Agreement, or (ii) prevent the Borough from performing its duties and obligations hereunder. 37 (d) There are no suits, other proceedings or investigations pending or, to the best of the Borough's knowledge, threatened against the Borough that would have a material adverse effect on the Borough's financial condition. (e) The Project Improvements are authorized by the Redevelopment Plan and are not in contravention with any federal, state or municipal law, ordinance or regulation. (f) All materials and documentation submitted by the Borough and its agents were, at the time of such submission, and as of the Effective Date, materially accurate, and the Borough shall continue to inform the Redeveloper of any material and adverse changes in the documentation submitted. SECTION 10.03. Delivery of Documents by the Redeveloper. The Redeveloper agrees to deliver the following fully executed collateral documents simultaneously with the execution of this Redevelopment Agreement and the Borough hereby acknowledges the receipt of such documents: (a) An opinion(s) of counsel to the Redeveloper, in a form which is reasonably satisfactory to the Borough, to the effect set forth in Section 10.01 (a)-(j), inclusive. Such opinion(s) may be provided by the Redeveloper's in-house counsel and/or outside special counsel. (b) Certified copies of the certificate of formation and certificate of good standing of the Redeveloper. (c) Certifications of counsel to the Redeveloper that, after reasonable inquiry, (I) no material action, suit, proceeding or official investigation shall have been threatened, publicly announced or commenced by any federal, state or local governmental authority or agency, or in any federal, state or local court, that seeks to enjoin, assess civil or criminal penalties against, assess civil damage against or obtain any judgment, order or consent decree with respect to the Redeveloper, this Redevelopment Agreement or to any of the agreements which are referred to herein, as a result of the Redeveloper's negotiation, execution, delivery or performance of any such agreement or its participation or intended participation in any transaction contemplated thereby; except that this Section 1O.03(c)(1) shall not apply to any material action, suit, proceeding or official investigation not involving criminal penalties which does not challenge the validity, binding effect or enforceability of any of the agreements which are referred to in this Redevelopment Agreement and which, if adversely determined, would not materially adversely affect any of such agreements, the performance by the Redeveloper of its obligations thereunder, or transactions contemplated thereby; (2) no receiver, liquidator, custodian or trustee of the Redeveloper or of a major part of its property, shall have been appointed as of the date hereof, and no petition to reorganize the Redeveloper, pursuant to the United States Bankruptcy Code or any similar statute which is applicable to the Redeveloper, shall have been filed as of the date hereof; (3) no adjudication of bankruptcy of the Redeveloper or a filing for voluntary bankruptcy by the Redeveloper, under the provisions of the United States Bankruptcy Code or any other similar statute which is applicable to the Redeveloper, shall have been filed; and (4) no indictment has been returned against any official of the Redeveloper, with respect to any 38 transaction, related to the transactions contemplated by the terms of this Redevelopment Agreement. (d) A comprehensive list of the names, addresses, email addresses and telephone numbers of all individuals who will comprise the Redeveloper's "Project Team" including, but not limited to, those individuals who will be directly responsible for managing the Project Improvements' design, approvals and construction. The Redeveloper shall provide notice to the Borough of any changes in the representatives on the Project Team. SECTION 10.04. Mutual Representations. (a) The Borough and the Redeveloper agree that the Project Improvements will be governed by this Redevelopment Agreement. (b) In the event that any contractual provisions that are required by the Applicable Law have been omitted, then the Borough and the Redeveloper agree that this Redevelopment Agreement shall be deemed to incorporate all such clauses by reference and such requirements shall become a part of this Redevelopment Agreement. If such incorporation occurs and results in a change in the obligations or benefits of one of the parties, the Borough and the Redeveloper agree to act in good faith to mitigate such changes in position. SECTION 10.05. Redeveloper Covenants. Subject to Section 10.07 below, the Redeveloper covenants and agrees that the following covenants shall survive the termination or expiration of the Redevelopment Agreement (collectively, "Redeveloper Covenants"): (a) The Redeveloper shall use diligent efforts to obtain all Government Approvals necessary for the construction and development of the Project Improvements. The Redeveloper shall construct, improve, operate and maintain the Project Improvements in compliance with all Governmental Approvals, and other laws, ordinances, approvals, rules, regulations and requirements applicable thereto including, but not limited to, such zoning, sanitary, pollution and other environmental safety ordinances, laws and such rules and regulations thereunder as shall be binding upon the Redeveloper under applicable laws. The Redeveloper shall provide evidence reasonably satisfactory to the Borough that the Project Improvements are in compliance with all applicable State and Federal environmental statutes and regulations. (b) The Redeveloper shall (i) obtain financing of the Project Improvements, (ii) construct and develop the Project Improvements with due diligence and (3) shall begin and Complete construction of each item in the Project Schedule on or prior to the applicable date set forth in the Project Schedule (and for those items for which commencement dates only are given, such items shall be completed in a commercially reasonable period). All activities performed under this Redevelopment Agreement shall be performed in accordance with the level of skill and care ordinarily exercised by reputable developers of similar developments of the character, scope and composition of the Project Improvements. (c) The Redeveloper shall construct the Project Improvements in accordance with this Redevelopment Agreement, the Redevelopment Law, the Redevelopment Plan, and all other Applicable Law and, in the event that the Redeveloper wishes to change or modify the Project Improvements, notwithstanding the fact that such change or modification is authorized by the Redevelopment Plan, the Borough's prior written approval must be secured prior to proceeding 39 with any activities relating to such proposed modifications. The Redeveloper acknowledges that the Borough has relied on the proposed Project Schedule in entering into its obligations under this Redevelopment Agreement. (d) The Redeveloper shall fulfill its material obligations under any and all agreements it enters into with third parties with respect to the acquisition, construction, leasing, sale, financing and other matters relating to the Project Improvements; provided however, that this covenant is not intended to prevent the Redeveloper from contesting the scope or nature of such obligations as and to the extent provided in such agreements. (e) The Redeveloper shall complete the Project Improvements or cause same to be completed, on or prior to the date set forth in the Project Schedule at its sole cost and expense; provided however, that the Parties acknowledge that moneys may be made available towards the completion of same from other outside sources. In the event that moneys made available pursuant to any outside source are not sufficient to pay the costs necessary to complete the Project Improvements, the Redeveloper shall nonetheless be responsible for Completion of the Project Improvements at its expense and shall not be entitled to any reimbursement therefore from the Borough, except to the extent otherwise expressly provided in this Agreement. (f) Upon completion of the development and construction of the Project Improvements, the Redeveloper shall use diligent efforts to obtain all Governmental Approvals authorizing the occupancy and uses of the Project Improvements for the purposes contemplated hereby. (g) The Redeveloper shall not discriminate against or segregate any person, or group of persons, on account of race, color, religion, creed, national origin, ancestry, physical handicap, age, marital status, affectional preference or gender in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project Improvements, nor shall the Redeveloper itself, or any Person claiming under or through the Redeveloper, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use of occupancy oftenants, lessees, subtenants, sublessees, or vendees of the Project Improvements. (h) The Redeveloper shall not restrict the sale, lease, sublease, rental, transfer, use, occupancy, tenure, or enjoyment of the Project Improvements on the basis of race, color, religion, creed, national origin, ancestry, physical handicap, age, marital status, affectional preference or gender of any person. (i) The Redeveloper shall not suspend or discontinue the performance of its obligations under this Redevelopment Agreement (other than in the manner provided for herein) for any reason, including, without limiting the generality of the foregoing, any acts or circumstances that may constitute failure of consideration, commercial frustration of purpose, or any damage to or destruction of the Project Improvements. (j) The Redeveloper shall immediately notify the Borough of any material change in its financial condition from the information provided to the Borough by the Redeveloper indicating the Redeveloper's financial capability to develop, finance and construct the Project 40 Improvements in furtherance of the Borough's consideration in designating the Redeveloper as the redeveloper of the Redevelopment Area. (k) The Redeveloper shall not use the Redevelopment Area, Project Improvements or any part thereof for which a Certificate of Completion has not been issued, in a manner that is inconsistent with the Redevelopment Plan and this Redevelopment Agreement. (1) The Redeveloper shall not use the Redevelopment Area, Project Improvements or any part thereof for which a Certificate of Completion has not been issued, as collateral for an unrelated transaction. SECTION 10.06. Declaration of Covenants and Restrictions. The Redeveloper shall execute and record one or more declaration(s) of project covenant(s), approved by the Borough (the "Declaration") imposing on the Project Improvements and the Redevelopment Area, the Covenants set forth in Section 10.05 (as may be limited by Section 10.07 hereof), and those other matters indicated in this Redevelopment Agreement to be included in the Declaration. Such Declaration shall be in the form of Exhibit 13 attached hereto. SECTION 10.07. Effect and Duration ofthe Covenants. It is intended and agreed, and the Declaration shall so expressly provide, that the agreements and covenants set forth in Section 10.05 hereof and those elsewhere in this Redevelopment Agreement designated for inclusion in the Declaration shall be covenants running with the land until the Project Improvements shall be Completed, and such covenants shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Redevelopment Agreement, be binding, to the fullest extent permitted by Applicable Law and equity, for the benefit and in favor of, and enforceable by, the Borough, its successors and assigns, and any successor in interest to the Project Improvements, or any part thereof, the Redeveloper, its successors and assigns and every successor in interest therein, and any Party in possession or occupancy of the Project Improvements, or any part thereof. It is further intended and agreed that the agreements and covenants in 10.05 shall remain in effect without limitation as to time. Such agreements and covenants, however, shall be binding on the Redeveloper itself, each successor in interest to the Redeveloper and each party in possession or occupancy, respectively, only for such period as the Redeveloper or such successor or party shall be in possession or occupancy of the Redevelopment Area, the buildings and structures thereon, or any part thereof. SECTION 10.08. Enforcement of Covenants by the Borough. In amplification, and not in restriction of the provisions of this Article X, it is intended and agreed that the Borough and its successors and assigns shall be deemed beneficiaries of the agreements and covenants set forth in this Redevelopment Agreement, both for and in their own right but also for the purposes of protecting the interests of the community and other parties, public or private, in whose favor or for whose benefit such agreements and covenants have been provided. Such agreements and covenants shall run in favor of the Borough for the entire period during which such agreements and covenants shall be in force and effect, without regard to whether the Borough has at any time been, remains, or is an owner of any land or interest therein, or in favor of which such agreements and covenants relate. The Borough shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies and to maintain any 41 actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant, to which it or any other beneficiaries of such agreement or covenant may be entitled, including all other rights as more specifically set forth in Article XVII. This Section is not intended to confer standing to sue on any party other than the Borough. Upon redevelopment of the Redevelopment Area and completion of the Project Improvements, the conditions that were found and determined to exist at the time the Redevelopment Area was determined to be in need of redevelopment shall be deemed to no longer exist, the land and improvements thereon shall no longer be subject to eminent domain as a result and the conditions and requirements ofN.l.S.A. 40A:12A-9 shall be deemed to have been satisfied with respect to the Project Improvements. [END OF ARTICLE Xl 42 ARTICLE XI SECURITY FOR CONSTRUCTION OF PROJECT IMPROVEMENTS SECTION 11.01. Construction Performance Security. The Redeveloper shall execute and deliver the Guarantor Agreement to the Borough in order to secure the Redeveloper's obligations to Complete construction of the Project Improvements in accordance with the provisions and requirements of this Redevelopment Agreement. The Guarantor Agreement shall be substantially similar in form and substance to the completion guarantee provided by the Guarantor to the Redeveloper's construction financing lender and otherwise upon terms and conditions to be agreed upon by and between the Guarantor and the Borough prior to the commencement of construction ofthe Project Improvements. SECTION 11.02. Performance and Payment Bonds. (a) In the event that the Redeveloper's general contractor for the Project Improvements is not an Affiliate of the Redeveloper, then, at the Borough's request, the Redeveloper shall require its contractor(s) for the Project Improvements (to the extent not already posted in connection with Governmental Approvals or to a construction lender (in which case, the Borough shall be named as additional insured), to furnish performance and payment bonds as set forth in Exhibit 11 (the "Performance and Payment Bond(s)") as security for the performance of the obligations of the contractor(s) under the contract(s) for the Project Improvements. Said Performance and Payment Bond(s) shall be in form and content most often accepted by government agencies in the State and sufficient for the protection of the Borough and that are standard in the underwriting industry for ensuring full performance and completion of construction by contractors and payment of all payments to multiple prime contractors, subcontractors, workers and material suppliers by contractors and subcontractors pursuant to the contracts for the Project Improvements in accordance with the laws of the State and the regulations promulgated thereunder. (b) In the event that the Redeveloper is entitled to and fails to exercise its rights under the Performance and Payment Bond(s) and/or if an Event of Default by the Redeveloper occurs, then subject to the rights of a Holder, the Borough shall have the right to the protections and guarantee(s) available through and from the surety provided by the Performance and Payment Bond(s). The Borough shall also have all other rights and remedies available to it under the Performance and Payment Bond(s), this Redevelopment Agreement and/or at law. The Performance and Payment Bond(s) shall name the Redeveloper and the Borough, as their respective interests may appear, as beneficiaries of the Performance and Payment Bond(s) and of all rights, payments and benefits flowing or deriving from the Performance and Payment Bond(s). (c) The Performance and Payment Bond(s) must include any change orders or other modifications to work material to completion of the Project Improvements, and the Redeveloper agrees that it will comply and cause its contractor(s) to comply with all requirements set forth in the Performance and Payment Bond(s) in connection therewith. 43 (d) The identity and financial net worth of the surety issuing the Performance and Payment Bond(s) and the form and content of the Performance and Payment Bond(s) shall be acceptable to the Borough and subject to its approval in its sole discretion. ( e) The Redeveloper shall bear the cost of obtaining the Performance and Payment Bond(s), ifissued. (f) In the event that the Redeveloper's general contractor is an Affiliate of the Redeveloper, notice of its identity shall be provided to the Borough and such general contractor will be deemed to have agreed that its construction of the Project Improvements is subject to the terms of this Redevelopment Agreement and that construction of the Project Improvements shall be carried out in accordance with the terms of the Redevelopment Agreement. Any acts or omissions by such general contractor shall be deemed to be acts or omissions of the Redeveloper. (g) The Performance and Payment Bond(s) shall be held as security until the issuance by the Borough of a Certificate of Completion with respect to the Project Improvements, or any portion thereof to which the Performance and Payment Bond(s) relate. If there occurs an event of default which is not cured, the Borough shall thereafter have the right to the protections and guarantee(s) available through and from the surety provided by the Performance Bonds including its automatic application by the Borough as liquidated damages as a result thereof. The Borough shall also have all other rights and remedies available to it under the Performance Bond(s) and/or Applicable Law. [END OF ARTICLE XI] 44 ARTICLE XII CERTIFICATES OF OCCUPANCY AND COMPLETION SECTION 12.01. Certificate of Occupancy. Upon completion of the construction of any building that is included as part of the Project Improvements, the Redeveloper shall apply to the appropriate governmental officer or body for a Certificate of Occupancy for that building. The Redeveloper shall take all actions required for issuance of a Certificate of Occupancy and the Borough shall promptly process any applications for same. Upon satisfaction of the requirements set forth in the definition of "Substantial Completion," the Redeveloper may apply to the appropriate governmental officer or body for issuance of a Temporary Certificate of Occupancy which shall be effective until such time as a permanent Certificate of Occupancy is received. Notwithstanding the issuance of the Temporary Certificate of Occupancy, the Redeveloper shall not be deemed to have completed the Project Improvements, or portion thereof, as applicable, until the permanent Certificate of Occupancy is issued. As such, until such permanent Certificate is issued, the provisions of this Redevelopment Agreement and the Declaration shall remain in full force and effect. SECTION 12.02. Certificate of Completion. The completion of the Project Improvements shall be evidenced by a certificate of the Borough in recordable form ("Certificate of Completion") accepting the terms of a certificate of the Redeveloper stating that: (a) the Project Improvements have been Completed (excluding any normal and customary tenant improvements) in accordance with the final Site Plan and subdivision approval and all labor, services, materials and supplies used in connection therewith have been paid for or adequate security has been posted in connection therewith; (b) other facilities necessary to achieve substantial Completion and commence occupancy of a particular portion of the Project Improvements has been acquired, constructed or improved in accordance with the final Site Plan and subdivision approval and all costs and expenses incurred in connection therewith have been paid or adequate security otherwise posted; and (c) a Certificate of Occupancy, if required, and any other permissions required, if any, of governmental authorities or agencies for the occupancy and use of all portions of the Project Improvements for the purposes contemplated by this Redevelopment Agreement and the Redevelopment Plan, have been obtained. The Borough shall not unreasonably withhold or delay the delivery of a Certificate of Completion. If the Borough determines that the Redeveloper is not entitled to a Certificate of Completion, the Borough shall, at the written request of the Redeveloper, within thirty (30) days of receipt of the written request, provide the Redeveloper with a written statement of the reasons the Borough refused or failed to furnish a Certificate of Completion. If the reason for the refusal is confined to the immediate availability of specific minor finish items, the Borough will issue its Certificate of Completion upon the posting of a bond (or other reasonably satisfactory security) by the Redeveloper with the Borough in an amount representing 125% of the value of the work not yet completed unless Completion of such work is covered by and secured by Construction Performance Security reasonably acceptable in form and content by the Borough. Upon issuance of a Certificate of Completion, the Project Improvements, or the portion thereof to which such Certificate relates shall no longer be subject to the provisions of 45 this Redevelopment Agreement and/or the Declaration. In such event, the Parties shall execute such written acknowledgment as may be reasonably requested by the Redeveloper or required to be executed and filed so as to release the lien of this Redevelopment Agreement and the Declaration from the Project Improvements or portion thereof, as the case may be. [END OF ARTICLE XII] 46 ARTICLE XIII TRANSFERS SECTION 13.01. Prohibition Against Speculative Develo{lment. The Redeveloper covenants that its undertakings pursuant to this Redevelopment Agreement shall be for the purpose of redevelopment of the Redevelopment Area and not for speculation in land holding. SECTION 13.02. Prohibition Against Transfers. The Redeveloper recognizes that, in view of (a) the importance the redevelopment to the general welfare of the community; (b) the public assistance to be made available by law and by the Borough on the conditions stated herein, for the purpose of making such redevelopment possible; and ( c) the fact that a change in ownership or control of the Redeveloper, or any other act or transaction involving or resulting in a change in ownership or control of the Redeveloper to the degree thereof, is for practical purposes a transfer or disposition of the property interest then owned by the Redeveloper, the qualifications and identity of the Redeveloper and its principals are of particular concern to the Borough, no voluntary or involuntary successor in interest of the Redeveloper shall acquire any interest in or rights or powers under this Redevelopment Agreement except as expressly set forth herein. SECTION 13.03. Retention of Title to Borough Property or Private Property: Redeveloper to Maintain its Existence. Except where expressly permitted hereunder, during the term of this Redevelopment Agreement, the Redeveloper shall not: (a) effect or permit any change, directly or indirectly, in the ownership or control of the Redevelopment Area prior to the issuance of the final Certificate of Completion for the Project Improvements or any portion thereof, (b) assign or attempt to assign this Redevelopment Agreement or any rights herein, or (c) make any total or partial sale, transfer, or conveyance of the whole or any part of its interest in the Redevelopment Area, except with respect to those Project Improvements for which a Certificate of Completion has been issued (individually and collectively, a "Transfer"), in which case, the Borough's consent shall not be required. SECTION 13.04. Permitted Transfers. (a) The Redeveloper, without violating the provisions of Section 13.02 or Section 13.03 hereof, may effect the following Transfers, to which the Borough hereby consents upon receipt of notice thereof, without the necessity of further action by the Borough ("Permitted Transfers"): (i) security for, and only for, the purpose of obtaining the financing necessary to enable the Redeveloper to perform its obligations under this Redevelopment Agreement with respect to completing the Project Improvements and any other purpose authorized by this Redevelopment Agreement; (ii) a mortgage or mortgages and other liens and encumbrances (including mechanic's liens) for the purposes of financing costs associated with the acquisition, development, construction and marketing ofthe Project Improvements; 47 (iii) utility and other development easements; (iv) environmental covenants and restrictions imposed by a regulatory agency as a condition of any permit or approval; (v) any lease, option agreement or contract of sale for all or any portion of the Project Improvements provided that the conveyance contemplated thereby occurs following the issuance of a Certificate of Completion as to the Project Improvements; (vi) transfers among partners ofthe Redeveloper and/or trustees for their benefit; (vii) any contract or agreement with respect to any ofthe foregoing exceptions. (b) The Redeveloper may, in accordance with Redevelopment Law, seek the approval of the Borough to transfer the Redevelopment Area to a reputable developer with whom the Redeveloper has entered into a joint venture agreement for the development of the Project Improvements, provided that the Redeveloper maintains a minimum fifty-one percent (51%) ownership or controlling interest in the joint venture entity, which approval the Borough shall not unreasonably withhold. SECTION 13.05. Notice of Permitted Transfers. With respect to any Permitted Transfers, the Redeveloper shall provide to the Borough written notice at least thirty (30) days prior to such Transfer, including a description of the nature of such Transfer, and the name(s) and addressees) of the transferee and any parties, individuals and/or entities comprising such transferee. No such Permitted Transfer shall become effective until the Borough has reviewed the supporting documentation provided by the Redeveloper and approved such supporting documentation. In such event, the Redeveloper shall cause the transferee to execute such documentation as is reasonably requested by the Borough in order to assure that the transferee has assumed all of the Redeveloper's obligations under this Redevelopment Agreement and the Declaration as to the Project Improvements (if the Redeveloper's right, title and interest in the Project Improvements is being transferred) or any portion thereof (if the Redeveloper's right, title and interest in a portion of the Project Improvements is being transferred). The Redeveloper shall exercise its best efforts with respect to the provisions of any documentation relating to the Transfer as the Borough may reasonably request. SECTION 13.06. Transfers of Interests in Which Control is Transferred. (a) The Redeveloper shall be entitled to transfer 50% or more of its interest in Carteret Tomorrow, LLC, the Redevelopment Area or the Project Improvements to a transferee satisfYing the following conditions, as reasonably determined by the Borough: (i) the proposed transferee will own and occupy the portion of the Redevelopment Area or the Project Improvements being transferred to it at least until the final Certificate of Completion for the Project Improvements is issued, and will represent same in writing to the Borough. (ii) the proposed transferee will have qualifications and financial responsibility necessary and adequate to fulfill the obligations undertaken in this Agreement with respect to the Project Improvements by the Redeveloper and other obligations pursuant to Governmental 48 Approvals (including, but not limited to, maintenance of remedial systems), or any part of such obligations that may pertain to the transferred interest or the transferred portion of the Redevelopment Area and/or the Project Improvements, as determined from: a. Audited financial statements indicating (i) net worth or (ii) unencumbered lines of credit; or evidence ofloan commitments sufficient to carry out the Project Improvements by the transferee or assignee; and b. Submission of letters of recommendation from reputable parties for whom the prospective transferee has undertaken a comparable development, stating that the proposed transferee or assignee possesses the competence and integrity to undertake the Project Improvements or part thereof. (iii) Any proposed transferee, by instrument in writing reasonably acceptable to the Borough, will, for itself and its successors and assigns, and expressly for the benefit of the Borough, have expressly assumed all of the relevant obligations of the Redeveloper under this Agreement with respect to the Project Improvements and agreed to be subject to all the relevant conditions and restrictions to which the Redeveloper is subject. (iv) Any Transfer under this Section will release the Redeveloper from any and all relevant obligations under this Agreement, except as to any liability or obligation of the Redeveloper incurred prior to such Transfer. (v) The Redeveloper and its transferees will comply with such other reasonable conditions as the Borough may find necessary in order to achieve and safeguard the purposes of the Redevelopment Plan. (b) Prior to any Transfer under this Section 13.06, the Redeveloper will payor cause to be paid to the Borough the sum of One Hundred Fifty Thousand Dollars ($150,000.00) in consideration for such right to transfer and in order to defray costs associated with such Transfer and the ongoing oversight thereof. Further, the Redeveloper will payor cause to be paid all third-party expenses incurred by the Borough in connection with such Transfer. (c) The transfer rights granted pursuant to this Section 13.06 are personal to the Redeveloper and will not run to any transferee so long as this Agreement is in effect. In no event will the Redeveloper be permitted to carry out more than one (1) transfer pursuant to this Section 13.06. SECTION 13.07. Transfers Void. Any transfer of the Redeveloper's interest in violation of this Redevelopment Agreement shall be a Redeveloper Event of Default and shall be null and void ab initio. Such default shall entitle the Borough to seek all remedies available under the terms hereof, and those available pursuant to law or equity, including termination of this Redevelopment Agreement. In the absence of specific written consent by the Borough, no such sale, transfer, conveyance or assignment or approval thereof by the Borough, shall be deemed to relieve the Redeveloper from any obligations under this Redevelopment Agreement. The Declaration shall contain a restriction against transfers as set forth in this Article and, in addition, shall provide that in the event of any attempted transfer in violation of the restrictions in this Article, the Borough shall be entitled to the ex parte issuance of an injunction restraining 49 such transfer, and the award of legal fees and related expenses of the Borough in connection with any such legal action. Upon the recording of the Declaration in the Office of the Middlesex County Register, the provision affording such injunctive relief shall have the same force and effect as a Notice of Lis Pendens. Upon recording of the final Certificate of Completion, the provisions of the Declaration set forth in this Article as to the Project Improvements shall be deemed terminated, and the Declaration shall so state. [END OF ARTICLE XIII] 50 ARTICLE XIV INDEMNIFICATION; INSURANCE SECTION 14.01. Redeveloper Indemnification. (a) The Redeveloper covenants and agrees, at its expense, to pay and to indemnify, protect, defend and hold the Borough Indemnified Parties harmless from and against all liability, losses, damages, demands, costs, claims, lawsuits, administrative proceedings, fines, penalties, and expenses (including attorneys' fees and court costs) of every kind, character and nature resulting, wholly or partially, from the condition, use, possession, conduct, management, planning, design, acquisition, construction, installation, financing, leasing or sale of the Project Improvements, including but not limited to, (i) the death of any person or any accident, injury, loss, and damage whatsoever to any person or to the property of any person which shall occur on or adjacent to the Redevelopment Area and which results, wholly or partially, from any negligence or willful misconduct of Redeveloper, its agents, servants, employees, or contractors, but excluding damage, liability, costs and expenses to the extent that same may result from gross negligence or willful misconduct of the Borough, its employees, representatives or agents, or (ii) any lawsuit or other proceeding commenced by any person or entity, because of action(s) or omissions taken by the Redeveloper, its contractors, employees, agents, representatives and elected or appointed officials in connection with the Project Improvements or this Redevelopment Agreement. (b) The Redeveloper shall defend, indemnify and hold harmless the Borough Indemnified Parties and its officers, agents, employees, contractors, and consultants from any claims, investigations, liability, loss, injury, damage, remediation costs, lawsuits, civil proceedings, fines, penalties, and expenses including reasonable attorneys fees and disbursements (hereinafter "Liabilities") which result, wholly or partially, from (i) the performance or any failure or delay of performance by the Redeveloper of its obligations under the Redevelopment Agreement; (ii) any bodily injury or property damage that may occur in the Redevelopment Area during the term of the Redevelopment Agreement; provided however, that such indemnity shall not include the actions or inactions of third-parties over whom the Redeveloper does not exercise control, as long as the Redeveloper maintains and enforces commercially reasonable security measures and commercial liability insurance to protect against such actions or inactions. (c) In any situation in which a Borough Indemnified Party is entitled to receive and desires indemnification by the Redeveloper, the Borough Indemnified Party shall give prompt notice of such situation to the Redeveloper. Failure to give prompt notice to the Redeveloper shall not relieve the Redeveloper of any liability to indemnify the Borough Indemnified Party, unless such failure to give prompt notice materially impairs the Redeveloper's ability to defend such party. Upon receipt of such notice, the Redeveloper shall resist and defend any action or proceeding on behalf of the Borough Indemnified Party, including the employment of counsel reasonably acceptable to the Borough Indemnified Party, the payment of all expenses and the right to negotiate and consent to settlement. All of the Borough Indemnified Parties shall have 51 the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of the indemnified party unless the employment of such counsel is specifically authorized by the Redeveloper, which authorization shall not be unreasonably withheld or delayed. The Redeveloper shall not be liable for any settlement of any such action effected without its consent, but if settled with the consent of the Redeveloper or if there is a final judgment against the Borough Indemnified Party in any such action, the Redeveloper agrees to indemnify and hold harmless the Borough Indemnified Party from and against any loss or liability by reason of such settlement or judgment for which the Borough Indemnified Party is entitled to indemnification hereunder. The Redeveloper shall have the right to settle any such action on terms it deems appropriate provided that a full release of the Borough Indemnified Party is obtained and no admission of liability by the Borough Indemnified Party is required. In the event the Borough refuses to provide a release of such action, and a final judgment is rendered against the Redeveloper, the Borough shall be responsible for the Redeveloper's counsel fees and costs incurred subsequent to the Borough's refusal to release the action and for that amount of the judgment which is in excess of the sum for which the Redeveloper would have otherwise settled the action. (d) The Redeveloper's indemnity provided under this Section 14.01 shall survive the termination of this Redevelopment Agreement and shall run with the land and be referenced in the Declaration. SECTION 14.02. Insurance Required. (a) Prior to the commencement of construction of the Project Improvements, the Redeveloper shall furnish or shall cause to be furnished, to the Borough, duplicate originals of commercial general liability insurance, insuring the Borough against losses, costs, liabilities, claims, causes of action and damages for bodily injury and property damage on all property in the Property or related to the construction thereon, in the amount of at least Ten Million Dollars ($10,000,000.00) combined single limit coverage. 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 covered loss, including, but not limited to, claims of subcontractors, however occasioned, occurring during the policy term, shall be endorsed to add the Borough as an additional insured, and to provide that such coverage shall be primary and that any insurance maintained by the Borough shall be excess insurance only. Such coverage shall be endorsed to waive the insurer's rights of subrogation against the Borough. (b) Builder's Risk Insurance for the benefit of the 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. The limits of liability will be equal to one hundred percent (100%) of the replacement cost (to current building code) of the Project Improvements, including items oflabor and materials connected therewith, whether in or adjacent to the structure(s) insured, and materials in place or to be used as part of the permanent construction. ( c) The Redeveloper shall also furnish or cause to be furnished to the Borough evidence satisfactory to the Borough that the Redeveloper and any contractor with whom it has contracted for the construction of the Project Improvements carries workers' compensation 52 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 the Borough. (d) Following completion of the Project Improvements, casualty insurance naming the Borough as an additional insured in an amount sufficient to cover full replacement cost of same shall be maintained by the Redeveloper or any tenant in occupancy, evidence of same to be provided to the Borough. (e) All insurance policies required by this section shall be obtained from insurance companies licensed in the State of New Jersey and rated at least A++ in Best's Insurance Guide or such lesser rated provider that is proposed by the Redeveloper and is reasonably acceptable to the Borough. All insurance policies required hereunder shall be kept in force until a Certificate of Completion is issued. (f) All insurance policies required by this Section shall be nonassessable and shall contain language to the effect that (a) the policies are primary and noncontributing with any insurance that may be carried by the Borough, (b) the policies cannot be canceled or materially changed except after thirty (30) days written notice by the insurer to the Borough, and (c) the Borough shall not be liable for any premiums or assessments. All such insurance shall have deductibility limits reasonably satisfactory to the Borough and shall contain cross liability endorsements. (g) The Redeveloper's obligation to maintain insurance in this Section 14.02 shall terminate upon issuance of a Certificate of Completion with respect to the Project Improvements. [END OF ARTICLE XIV] 53 ARTICLE XV MORTGAGE FINANCING; NOTICE OF DEFAULT TO MORTGAGEE; RIGHT TO CURE SECTION 15.01. Mortgage Financing. (a) Neither the Redeveloper nor any successor in interest to the Project Improvements, or any part thereof, shall engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Project Improvements, 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 Improvements, in excess of 90 percent of Project Costs, except as may be approved by the Borough (which approval shall not be unreasonably withheld) for the purpose of obtaining funds in connection with the construction of the Project Improvements, provided, however, that upon the issuance of a Certificate of Completion for the Project Improvements, or any portion thereof, such prohibition shall no longer apply with respect to the corresponding parcel of land and improvements. The Redeveloper, or its successor in interest, shall notify the 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 Improvements, or any part thereof (the mortgagee thereunder, a "Holder") and, in any event, the Redeveloper shall promptly notify the 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 Improvements, whether by voluntary act of the Redeveloper or otherwise, upon obtaining knowledge or notice of same. (b) If the Holder reasonably requires any change(s) or modification(s) to the terms of this Redevelopment Agreement, the Borough shall reasonably cooperate with the Holder and the Redeveloper in reviewing and approving such proposed change(s) or modification(s); provided however, that any such proposed change or modification shall not materially and adversely alter or modify the rights and obligations of the Redeveloper or the Borough, as provided in this Redevelopment Agreement. (c) To the extent reasonably requested by the Redeveloper, the Borough shall execute such other agreements and/or documents (to the extent same are in form and content reasonably acceptable to the Borough) as may be requested or required by any Holder (or any equity participant of the Redeveloper); provided however, that any such agreement or document shall not materially and adversely alter any of the rights or obligations of the Redeveloper or the Borough under this Redevelopment Agreement. SECTION 15.02. Notice of Default to the Redeveloper and Right to Cure. (a) Whenever the Borough shall deliver any notice or demand to the Redeveloper with respect to any breach or default by the Redeveloper under this Redevelopment Agreement, the Borough shall at the same time deliver to each Holder a copy of such notice or demand; provided that the 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 the Borough are concerned) have the right at its option within ninety (90) days after the receipt of such notice (and the expiration of all applicable cure periods), to cure or remedy, or to commence to cure or remedy, any such default which is subject to being cured and to add the cost thereofto the debt and the lien which it holds. 54 (b) To the extent that any Holder is required to foreclose against any lien it has with respect to the Project Improvements (as a result of a Redeveloper Event of Default or a default by the Redeveloper under any agreements executed by the Redeveloper and its project lenders), the Borough agrees to forebear from the enforcement of any remedies provided under this Redevelopment Agreement that it may have against the Redeveloper in order to permit such Holder to assume the obligations of the Redeveloper under this Redevelopment Agreement; provided however, that the Borough shall not be obligated to forebear from the exercise of any remedies available to it hereunder if such forbearance will result (or may result, in the reasonable judgment of the Borough) in a waiver of the Borough's rights under this Redevelopment Agreement or a material and adverse effect on the Borough's rights or performance obligations hereunder or any material increase in the Borough's financial obligations hereunder. SECTION 15.03. No Guarantee of Construction or Completion by Holder. (a) A Holder shall in no manner be obligated by the provisions of this Redevelopment Agreement to construct or complete the Project Improvements, or to guarantee such construction or completion; nor shall any covenant or any other provisions be construed so to obligate a Holder. Nothing contained in this Redevelopment Agreement shall be deemed to permit or authorize such Holder to undertake or continue the construction or completion of the Project Improvements (beyond the extent necessary to conserve or protect the Holder's security, including the improvements or construction already made) without the Holder or Affiliate of Holder first having expressly assumed the Redeveloper's obligations to the Borough with respect to the Project Improvements by written agreement reasonably satisfactory to the Borough. (b) If a Holder forecloses its mortgage secured by the Project Improvements, or takes title (in its name or the name of an Affiliate) to the Project Improvements by deed-in-lieu of foreclosure or similar transaction (collectively a "Foreclosure"), the Holder or its Affiliate shall have the option to either (i) sell the Project Improvements, as applicable, to a responsible Person reasonably acceptable to the Borough, which Person shall assume the obligations of the Redeveloper under this Redevelopment Agreement in accordance with Applicable Law, and/or (ii) itself, or its affiliate, assume the obligations of the Redeveloper under this Redevelopment Agreement in accordance with Applicable Law. In the event of a Foreclosure and provided the Holder or the purchaser is in compliance with this Redevelopment Agreement, the Borough shall not seek to enforce against the Holder or purchaser of such parcel any of the remedies available to the Borough pursuant to the terms of this Redevelopment Agreement available in connection with the events preceding the Foreclosure. The Holder, or the entity assuming the obligations of the Redeveloper as to the parcel affected by such Foreclosure or sale, in that event must agree to complete the Project Improvements in the manner provided in this Redevelopment Agreement, but subject to reasonable extensions of the Completion Default Date, and shall submit evidence reasonably satisfactory to the Borough that it has the qualifications and financial responsibility necessary to perform such obligations. Any such Holder, or other entity assuming such obligations of the Redeveloper, properly completing the Project Improvements shall be entitled, upon written request made to the Borough, to Certificates of Completion. Nothing in this Redevelopment Agreement shall be construed or deemed to permit or to authorize any Holder, or such other entity assuming such obligations of the Redeveloper, to devote the Redevelopment Area, or any part thereof, to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Redevelopment Agreement and the Redevelopment Plan. The Holder or such other entity that assumes the obligations of the 55 Redeveloper shall be entitled to develop the Redevelopment Area or Project Improvements in accordance herewith. SECTION 15.04. Borough's Option to Pay Mortgage Debt or Purchase Land. In any case where, subsequent to an Event of Default by the Redeveloper under this Redevelopment Agreement and/or Foreclosure, the Holder: (a) has, but does not exercise, the option to construct or complete the Project Improvements or part thereof covered by its mortgage, or to which it has obtained title, and such failure continues for a period of sixty (60) calendar days after the Holder has been notified or informed of the Event of Default; or (b) undertakes construction or completion of the Project Improvements or part thereof but does not complete such work within a reasonable period, and such default shall not have been cured within one hundred eighty (180) calendar days after written demand by the Borough to do so ((a) and (b) each constituting a "Holder Failure"); then the Borough shall have the option of paying to the Holder the amount of the mortgage debt and obtaining an assignment of the mortgage and the debt secured thereby, or, in the event ownership of the Project Improvements, or part thereof, has vested in such Holder by way of foreclosure or action in lieu thereof, the Borough shall be entitled, at its option, to a conveyance to it of the Project Improvements upon payment to such Holder of an amount equal to the sum of: (i) the mortgage debt at the time of foreclosure or action in lieu thereof (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (ii) all expenses with respect to the foreclosure, including reasonable attorney's fees and expenses; (iii) the net expense, if any (exclusive of general overhead), incurred by such Holder in and as a direct result of the subsequent management of the mortgaged property; (iv) the costs incurred by such Holder in making any the Project Improvements; and (v) an amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage debt and such debt had continued in existence. Every mortgage instrument made prior to completion of the Project Improvements with respect to any phase of development of the Project Improvements by the Redeveloper shall provide for the foregoing. [END OF ARTICLE XV] 56 ARTICLE XVI ADDITIONAL TERMINATION RIGHTS SECTION 16.01. Additional Termination Rights of Borough. This Redevelopment Agreement shall terminate upon notice by the Borough to the Redeveloper of its decision to so terminate, notwithstanding the occurrence of an Uncontrollable Circumstance (whether or not continuing) and/or whether or not an Event of Default by the Redeveloper has occurred, if: (a) The Redeveloper fails to complete any task listed on the Project Schedule by the completion date set for such task in the Project Schedule, as same may be amended or modified; (b) The ownership interests in the Redeveloper change by more than twenty percent (20%) in the aggregate, unless such change(s) has(ve) first been approved by the Borough; or (c) The Redeveloper experiences a substantial change in its financial condition which the Borough determines, in its sole and reasonable judgment, would significantly impair the Redeveloper's ability to complete the Project Improvements. Further, in the event that the Redeveloper substantially abandons or suspends construction of the Proj ect Improvements for a period in excess of one hundred eighty (180) days as a result of an Enforced Delay not caused by the act or omission of the Borough hereunder or a period in excess of ninety (90) days not resulting from the occurrence of Uncontrollable Circumstance, then, whether or not an Event of Default by the Redeveloper has been declared by the Borough, the Borough shall have the right to (i) terminate this Redevelopment Agreement, and/or (ii) compel the Guarantor to Complete the Project Improvements and, upon reasonable notice, the Borough may draw upon the Guarantor Agreement to assure that the remaining work relating to the Project Improvements is Completed or draw upon the Guarantor Agreement to obtain moneys to be applied toward payment of the costs to Complete the work on the Project Improvements. Nothing in this Section 16.01 shall prevent the Borough from declaring that a Redeveloper Event of Default by the Redeveloper hereunder has occurred nor from pursuing any of its other remedies hereunder. [END OF ARTICLE XVI] 57 ARTICLE XVII EVENTS OF DEFAULT AND REMEDIES SECTION 17.01. Events of Default. Anyone or more of the following shall constitute an event of default hereunder ("Event of Default") hereunder (with none of the following to be construed as a limitation on any other): (a) Failure of the Redeveloper or the Borough to observe and perform any covenant, condition or agreement under this Redevelopment Agreement, and continuance of such failure for a period of thirty (30) days, after receipt by the defaulting party of written notice from the non-defaulting party specifying the nature of such failure and requesting that such failure be remedied; provided however, if the failure is one which cannot be remedied within the thirty (30) days after such written notice has been given, it shall not be an Event of Default as long as the defaulting party is proceeding with due diligence to remedy the same as soon as practicable but in no event later than one hundred twenty (120) days after such written notice. (b) (i) The Redeveloper shall have applied for or consented to the appointment of a custodian, receiver, trustee or liquidator of all or a substantial part of its assets; (ii) a custodian shall have been legally appointed with or without consent of the Redeveloper; (iii) the Redeveloper (A) has made a general assignment for the benefit of creditors, or (B) has filed a voluntary petition in bankruptcy or a petition or an answer seeking an arrangement with creditors or has taken advantage of any insolvency law; (iv) the Redeveloper has filed an answer admitting the material allegations of a petition in any bankruptcy or insolvency proceeding; or (v) the Redeveloper shall take any action for the purpose of effecting any of the foregoing; (vi) a petition in bankruptcy shall have been filed against the Redeveloper and shall not have been dismissed for a period of ninety (90) consecutive days; (vii) an order for relief shall have been entered with respect to or for the benefit ofthe Redeveloper under the Bankruptcy Code; (viii) an order, judgment or decree shall have been entered, without the application, approval or consent of the Redeveloper by any court of competent jurisdiction appointing a receiver, trustee, custodian or liquidator of the Redeveloper or a substantial part of its assets and such order, judgment or decree shall have continued unstated and in effect for any period of ninety (90) consecutive days; or (ix) the Redeveloper shall have suspended the transaction of its usual business. ( c) The Redeveloper shall be in default of or violate its obligations with respect to the design, development and/or construction of the Project Improvements in accordance with this Redevelopment Agreement (including, but not limited to, the Project Schedule), final Site Plan approval or final subdivision approval, or shall abandon or substantially suspend construction work (unless such suspension arises out of an Uncontrollable Circumstance), and any such default, violation, abandonment or suspension shall not be cured, ended, or remedied within ninety (90) days after written demand by the Borough to do so; provided however, that if the default or violation is one which cannot be completely remedied within the ninety days after such written notice has been given, it shall not be an Event of Default as long as the Redeveloper 58 is proceeding with due diligence to remedy the same as soon as practicable but in no event later than one hundred twenty (120) days after such written notice. (d) The filing of a complaint in foreclosure against the Redeveloper or other Foreclosure for any financing in connection with the Project Improvements. (e) The Redeveloper or its successor in interest (except for third parties to which a portion of the Project Improvements has been conveyed in the ordinary course of business) shall fail to pay any real estate taxes or assessments on any real property or any part thereof owned by it in the Borough when due, or shall place thereon any encumbrance or lien unauthorized by this Redevelopment Agreement, or shall suffer any levy or attachment to be made, or any materialman's, mechanics' or construction lien, or any other unauthorized encumbrance or lien to attach and such real estate taxes or assessments shall not have been paid, or the encumbrance or lien removed or discharged or provision satisfactory to the Borough made for such payment, removal, or discharge, within sixty (60) days after written demand by the Borough to do so. (f) There is, in violation of this Redevelopment Agreement, any Transfer. SECTION 17.02. Force Majeure. Performance by either party hereunder shall not be deemed to be in default where delays or failure to perform are the result of the following acts, events or conditions or any combination thereof that has had or may be reasonably expected to have a direct, material, adverse effect on the rights or obligations of the parties to this Redevelopment Agreement; provided, however, that such act, event or condition shall be beyond the reasonable control of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the terms of this Redevelopment Agreement (a "Force Majeure"): (a) An act of God, lightning, blizzards, hurricane, tornado, earthquake, acts of public enemy, war, terrorism blockade, insurrection, riot or civil disturbance, sabotage or similar occurrence, but not including reasonably anticipated weather conditions for the geographic area of the Redevelopment Area, other than those set forth above (such events being required to physically affect a party's ability to fulfill its obligations hereunder; the consequential effect of such events (e.g., impact on market conditions) shall not be considered a Force Majeure event); (b) A landslide, fire, explosion, flood or release of nuclear radiation not created by an act or omission of either party hereto; (c) The order, judgment, action or inaction and/or determination of any Governmental Authority (other than the Borough when acting in conformance with this Redevelopment Agreement) with jurisdiction within the Borough, excepting decisions interpreting federal, state and local tax laws generally applicable to all business taxpayers, adversely affecting the construction of the Project Improvements; provided, however, that such order judgment, action and/or determination shall not be the result of the willful, intentional or negligent action or inaction of the party to this Redevelopment Agreement relying thereon and that neither the contesting of any such order, judgments, action and/or determination, in good faith, nor the reasonable failure to so contest, shall constitute or be construed as a willful, intentional or negligent action or inaction by such party; 59 (d) The suspension, termination, interruption, denial or failure of or delay in renewal or issuance of any other Governmental Approval, provided, however, that such suspension, termination, interruption, denial or failure of or delay in renewal or issuance shall not be the result of the willful, intentional or negligent action or inaction of the party relying thereon and that neither the contesting of any such suspension, termination, interruption, denial or failure of renewal or issuance, in good faith, nor the reasonable failure to so contest, shall constitute or be construed as a willful, intentional or negligent action or inaction by such party. Delay in issuance of a Governmental Approval resulting from the Redeveloper's failure to make an administratively complete submission for a Governmental Approval shall not be an event of Force Majeure; (e) Strikes or similar labor action by equipment manufacturers, suppliers or material and/or transporters of same; (f) Acts or omissions of the other party, except in conformance with this Redevelopment Agreement, or, as to the Redeveloper, acts or omissions of the Borough; The parties hereto acknowledge that the acts, events or conditions set forth in paragraphs (a) through (f) above are intended to be the only acts, events or conditions that may (upon satisfaction of the conditions specified above) constitute Force Majeure. Notice by the party claiming such extension shall be sent to the other party within thirty (30) calendar days of the commencement of the cause. During any Force Majeure that affects part of the Project Improvements, the Redeveloper shall continue to perform its obligations for the rest of the Project Improvements. The existence of an act of Force Majeure shall not prevent a party from declaring the occurrence of an Event of Default by the party relying on such Force Majeure provided that the event that is the basis of the Event of Default is not a result of the Force Majeure. Except for act or acts of Force Majeure resulting from acts or omissions of the Borough, all act or acts of Force Majeure will be deemed to have ceased to exist as of a date eighteen (18) months from its initial occurrence. SECTION 17.03. Remedies Upon Events of Default by the Redeveloper. If an Event of Default by the Redeveloper occurs, then the Borough may take whatever action at law or in equity as may appear necessary or desirable to enforce the performance or observance of any rights, remedies, obligations, agreements, or covenants of the Redeveloper, as applicable, under this Redevelopment Agreement, including the seeking of damages (including reasonable attorneys' fees and costs). Further, but subject to any cure provisions afforded the Redeveloper hereunder, the Borough shall have the right, in its sole and absolute discretion, upon sixty (60) days' notice to the Redeveloper and any Holder, to terminate this Redevelopment Agreement and the Redeveloper's designation as the Redeveloper ofthe Project Improvements. In the event that this Redevelopment Agreement is terminated by the Borough pursuant to this Section 17.03, the Borough shall terminate the Redeveloper's designation as the Redeveloper of the Redevelopment Area. The Redeveloper shall pay over to the Borough all of the costs and/or damages (including reasonable counsel fees) incurred by the Borough on account of the default of the Redeveloper. The Borough shall have the right to apply to the aforementioned costs or damages incurred by the Borough as aforesaid, any funds of the Redeveloper in the hands of the Borough at the time of such default and termination. 60 In the event that the Borough terminates the Redeveloper's designation as the redeveloper of the Redevelopment Area, the Borough shall, pursuant to its responsibilities under State law, use reasonable efforts to designate a replacement redeveloper for the Redevelopment Area (subject to such permitted mortgage liens as may exist against the Project Improvements and the rights of a Holder as set forth in Article XV hereof). Such replacement developer shall be designated as soon and in such manner as the Borough shall find feasible and consistent with the objectives of State law and of the Redevelopment Plan, to a qualified and responsible party or parties as determined by the Borough, who will assume the obligation of completing the Project Improvements or such other improvements in its stead as shall be satisfactory to the Borough and in accordance with the uses specified in this Redevelopment Agreement and the Redevelopment Plan. This provision shall be entered in the Declaration. The Redeveloper shall deliver to such replacement developer assignments of all other rights and agreements pertaining to the Project Improvements. Any proceeds resulting from the designation of the replacement developer under this Section shall be applied: (a) First, to all reasonable costs and expenses incurred by the Borough, including but not limited to legal fees and related expenses incurred by the Borough in connection with the Project Improvements; all taxes, assessments, and water and sewer charges owed by the Redeveloper as of such date, if any, with respect to the Project Improvements or any part thereof; any payments made or necessary to be made to discharge any encumbrances or liens existing on the Project Improvements at the time of the Borough's reacquisition of the Project 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 Improvements, or any part thereof, on the uncompleted portion or any part thereof; and any amounts otherwise owed to the Borough by the Redeveloper and its successors or transferees in accordance with the terms of this Redevelopment Agreement; and (b) Second, to reimburse the Redeveloper, its successor or transferee, up to the amount equal to the Redeveloper's actual costs associated with the Project Improvements, including land acquisition, engineering, planning, site improvement, marketing and other development costs paid for by the Redeveloper. Any balance remaining after such reimbursements shall be retained by the Borough as its property. SECTION 17.04. Remedies Upon Events of Default by the Borough. In the event that an Event of Default by the Borough occurs, then the Redeveloper 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 Borough, as applicable, under this Redevelopment Agreement, including the seeking of damages (including reasonable counsel fees and costs). Further, but subject to any cure provisions afforded the Borough hereunder, the Redeveloper shall have the right, in its sole and absolute discretion, upon sixty (60) days' notice to the Borough, to terminate this Redevelopment Agreement. SECTION 17.05. Specific Performance. If an Event of Default occurs, or a party hereto threatens to take an action that will result in the occurrence of an Event of Default, the non-defaulting (or non-threatening) party shall have the right and remedy, without posting bond or other security, to have the provisions of this Redevelopment Agreement specifically enforced 61 by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to the Borough or the Redeveloper and that money damages may not provide an adequate remedy thereto. SECTION 17.06. Failure or Delay. Except as otherwise expressly provided in this Redevelopment Agreement, any failure or delay by either party in asserting any of its rights or remedies as to any default, shall not operate as a waiver of any default, or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. SECTION 17.07. Remedies Cumulative. No remedy conferred by any of the provisions of this Redevelopment Agreement is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of anyone or more remedies shall not constitute a waiver of the right to pursue other available remedies. In no event, however, shall a party be entitled to recover more than its actual damages. SECTION 17.08. Continuance of Obligations. The occurrence of an Event of Default shall not relieve the defaulting party of its obligations under this Redevelopment Agreement unless this Redevelopment Agreement is terminated as a result of such Event of Default, as and to the extent permitted hereunder. SECTION 17.09. Mitie:ation. The parties shall act reasonably to mitigate any damages that may be incurred as a result of an Event of Default hereunder. SECTION 17.10. Documents to be Delivered Upon Termination. In the event this Redevelopment Agreement is terminated for any reason, except as a result of the default of the Borough, the Redeveloper shall deliver to the Borough, within ten (10) days after such termination, copies of all reports, studies, data, plans, surveys, title reports, subdivision maps and specifications prepared by the Redeveloper and third parties with respect to the Property and all documents, reports, permits and approvals obtained by the Redeveloper relating to the Property. SECTION 17.11. Agreement Not to Develop Upon Termination. Subject to the rights of any Holders, in the event this Redevelopment Agreement is terminated as a result of a Redeveloper Event of Default, then, in order to give the Borough the opportunity to select a replacement Redeveloper and address any additional issues resulting from such termination, the Redeveloper agrees that, for a period of one (1) year following such termination, in the event that the Redeveloper still owns or controls the Redevelopment Area (or any part thereof), it shall take no further steps to construct the Project Improvements or to develop the Redevelopment Area, except as may be agreed to by the Borough, in its sole discretion, notwithstanding the fact that the Redeveloper may be in possession of Governmental Approvals required for such development. [END OF ARTICLE XVII] 62 ARTICLE XVIII MISCELLANEOUS SECTION 18.01. Notices. Formal notices, demands and communications between the Borough and the Redeveloper shall be deemed given if dispatched to the address set forth below by registered or certified mail, postage prepaid, return receipt requested, or by a commercial overnight delivery service with packaging tracking capability and for which proof of delivery is available. In this case such notice is deemed effective upon 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. Copies of all notices, demands and communications shall be sent as follows: If to the Borough: Borough of Carteret Municipal Building 61 Cooke Avenue Carteret, New Jersey 07008 Attn: Mayor and/or Borough Clerk Tel. No. 732-541-3800 Fax No. 732-541-8925 with copies to: Robert J. Bergen, Esq. Gill & Chamas 655 Florida Grove Road P.O. Box 760 Woodbridge, New Jersey 07095 Tel. No. 732-324-7600 Fax No. 732-324-7606 and Joseph P. Baumann, Jr., Esq. McManimon & Scotland, LLC One Riverfront Plaza, 4th Floor Newark, N ew Jersey 07102 Tel. No. 973-622-1800 Fax No. 973-622-7333 E-mail: ibaumanncmmands1aw.com 63 If to the Redeveloper: Carteret Tomorrow, L.L.C. 2120 McCarter Highway Newark, New Jersey 07104 Attn: Armand Yannone, Managing Member Tel. No. 973-296-0396 with copies to: Robert F. Dato, Esq. Law Offices of Robert F. Dato 313 Amboy Avenue Woodbridge, New Jersey 07095 Tel. No. 732-636-8880 Fax No. 732-636-8232 E-mail: bob~datolaw.com and David B. Himelman, Esq. Himelman, Wertheim & Geller, L.L.c. 1405 Route 18 South, Suite 201 Old Bridge, New Jersey 08857 Tel. No. 732-679-4040 Fax No. 732-679-0511 Email: dhimelman~hwgattorneys.com SECTION 18.02. Conflict of Interest. No member, official or employee of the Borough shall have any direct or indirect interest in this Redevelopment Agreement, nor participate in any decision relating to this Redevelopment Agreement which is prohibited by law. SECTION 18.03. No Consideration For Redevelopment Agreement. The Redeveloper warrants it has not paid or given, and will not payor give, any third person any money or other consideration in connection with obtaining this Redevelopment Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers, financial consultants and attorneys. The Redeveloper further warrants it has not paid or incurred any obligation to pay any officer or official of the Borough, any money or other consideration for or in connection with this Redevelopment Agreement. SECTION 18.04. Lender Changes. If the Redeveloper's lender requires a change in the terms of this Redevelopment Agreement, the Borough shall reasonably cooperate with the Redeveloper in approving such change, so long as such change, if any, does not modify or change the substantial rights or obligations of the Parties as set forth in this Redevelopment Agreement. In addition, the Borough agrees to enter into s"ijch agreements as the Redeveloper's lender (or its equity participants) may reasonably require provided that such agreement shall not 64 be inconsistent with the terms of this Redevelopment Agreement (i.e. shall not increase the Borough's responsibilities or decrease its benefits hereunder). SECTION 18.05. Non-Liability of Officials and Employees of the Borough. No member, official or employee of the Borough shall be personally liable to the Redeveloper, or any successor in interest, in the event of any default or breach by the Borough, or for any amount which may become due to the Redeveloper or its successor, or on any obligation under the terms of this Redevelopment Agreement. SECTION 18.06. Non-Liability of Officials and Employee of Redeveloper. No member, officer, shareholder, director, partner or employee of the Redeveloper shall be personally liable to the Borough, or any successor in interest, in the event of any default or breach by the Redeveloper or for any amount which may become due to the Borough, or their successors, on any obligation under the terms of this Redevelopment Agreement unless such liability is separately assumed under a separate document. SECTION 18.07. Uncontrollable Circumstance. Performance by either Party hereunder shall not be deemed to be in default where delays or failure to perform are the result of the occurrence of an Uncontrollable Circumstance. An extension of time for any such cause shall be for the period of the Uncontrollable Circumstance, which period shall commence to run from the time of the commencement of the cause. Notice by the Party claiming such extension shall be sent to the other party within fifteen (15) calendar days of the commencement of the cause. SECTION 18.08. Public Safety. Social and Fiscal Impacts: Traffic Improvements. The Redeveloper will be obligated to address and/or mitigate the public safety and social and fiscal impacts that may result from the Project Improvements, as required by the resolution adopted by the Borough Planning Board granting approval of a Site Plan for the Project Improvements. To the extent that traffic improvements are required as a direct result of the Project Improvements, the Redeveloper shall provide a fair share contribution toward the cost of the construction of capacity improvements necessitated by increased traffic attributable to the Project Improvements. The fair share financial contribution shall be equal to the fair share proportion multiplied by the cost of the traffic improvement, as determined in accordance with the New Jersey Highway Access Management Code. SECTION 18.09. No Brokerage Commissions. The Borough and the Redeveloper each represent one to the other that no real estate broker initiated, assisted, negotiated or consummated this Redevelopment Agreement as broker, agent, or otherwise acting on behalf of either the Borough or the Redeveloper, and the Borough and the 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 18.10. Provisions Not Merged With Deeds. To the extent that the provisions of this Redevelopment Agreement are intended to bind the Redeveloper's assigns and successors, its provisions shall not be merged by reason of any deeds transferring title to any portion of the Redevelopment Area from the Redeveloper or any successor in interest, and any 65 such deeds shall not be deemed to affect or ImpaIr the provIsIOns and covenants of this Redevelopment Agreement. SECTION 18.11. Successors and Assi2ns. This Redevelopment 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 18.12. Titles of Articles and Sections. The titles of the several Articles and Sections of this Redevelopment Agreement are inserted for the convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. SECTION 18.13. Severability. If any term or provision of this Redevelopment Agreement or the application thereof shall to any extent be held to be invalid or unenforceable, the remainder of this Redevelopment Agreement, 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 Redevelopment Agreement shall be valid and shall be enforced to the extent permitted by law. SECTION 18.14. Modification of Redevelopment Agreement. No modification, waiver, amendment, discharge, or change of this Redevelopment Agreement shall be valid unless the same is in writing, duly authorized, and signed by the party against which the enforcement of such modification, waiver, amendment, discharge, or change is or may be sought. SECTION 18.15. Execution of Counterparts. This Redevelopment Agreement may be executed in one or more counterparts and when each party has executed and delivered at least one counterpart, this Redevelopment Agreement shall become binding on the parties and such counterparts shall constitute one and the same instrument. SECTION 18.16. Prior Agreements Superseded. This Redevelopment Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes any prior Agreement and all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. SECTION 18.17. Waivers and Amendments in Writing. All waivers of the provisions of this Redevelopment Agreement must be in writing and signed by the appropriate authorities of the Borough and the Redeveloper and all amendments hereto must be in writing and signed by the appropriate authorities of the Borough and the Redeveloper. SECTION 18.18. Drafting Ambiguities: Interpretation. In interpreting any provision of this Redevelopment Agreement, no weight shall be given to, nor shall any construction or interpretation be influenced by, the fact that counsel for one of the parties drafted this Redevelopment Agreement, each party acknowledging that it and its counsel have had an opportunity to review this Redevelopment Agreement and have contributed to the final form of same. SECTION 18.19. Governing Law. This Redevelopment Agreement shall be governed by and construed in accordance with the Applicable Laws of the State. 66 SECTION 18.20. Arbitration. (a) Notwithstanding anything to the contrary elsewhere in this Agreement, the binding arbitration procedure as set forth herein ("Arbitration") shall be the exclusive means for resolution of disputes arising under, relating to, or touching upon this Agreement, involving the interpretation thereof, or the performance or breach by party thereto, including, but not limited to, original disputes and as disputes asserted as cross claims, counterclaims, third party claims, or claims for indemnity or subrogation, in any threatened or ongoing court litigation with third parties; provided, however, that these Arbitration procedures shall not apply to (1) any dispute involving a claim exceeding $5,000,000.00, exclusive of interest, fees and costs; (2) any matter arising out of or relating to any matter asserted already in litigation between the parties as of the Effective Date; (3) claims concerning environmental damages or remediation, unless such claim involves only the parties to this Agreement and no other parties. (b) Procedure. (1) Demand for Arbitration. Notice of a demand for arbitration by a party shall be filed in writing with the other party; (2) Selection of Arbitrator. An Arbitration shall be conducted by a single "Arbitrator," who shall be selected as follows: within ten (10) days of receipt of a demand for Arbitration, the parties shall select an Arbitrator. In the event they are unable to agree on an Arbitrator, the parties shall exchange lists of five (5) proposed arbitrators, ranked in order of preference, all of whom shall be former judges of the New Jersey Superior Court, the Appellate Division, a former justice of the New Jersey Supreme Court, or a former judge of the Federal District Court for the District of New Jersey. The parties shall select the highest ranked Arbitrator from the names common to their lists. If no common names exist, the parties shall exchange further lists of five (5) ranked proposed arbitrators from the same pool of former judges and justices, until the parties agree upon an Arbitrator. (3) Rules. The Arbitrator shall conduct the hearing pursuant to the rules and procedures of the American Arbitration Association in effect at the time. (4) Discovery. The Arbitrator shall determine the nature and scope of discovery, if any. Upon application by either party, the Arbitrator shall issue such orders as may be necessary and permissible under law to protect privileged, confidential, proprietary or sensitive materials or information from disclosure or other misuse. A party may make application to a court of competent jurisdiction to have a protective order entered as may be appropriate to confirm such order of the Arbitrator. (5) Hearing. A party may petition the Arbitrator for an expedited hearing if circumstances require prompt adjudication of a dispute. Otherwise, an arbitration hearing will commence as soon as practicable, but not later than thirty (30) days after selection of an Arbitrator, provided that the Arbitrator is available to accommodate the parties' schedule. The time in which the Arbitration must commence shall be extended only by the consent of the parties to the dispute, or by decision of the Arbitrator upon a showing of emergent circumstances. A hearing will proceed from business day to business day until it is concluded. (6) Award. The Arbitrator shall issue an award within 15 days following the conclusion of the arbitration, or as soon as possible thereafter. An award providing for deferred 67 payment shall include interest at the post-judgment rate set forth in the New Jersey Rules of Court. The award shall be rendered in accordance with this Agreement and state law. (7) Scope of A ward. The Arbitrator shall be without authority to award punitive damages, and any punitive damage award shall be void. If an award in excess of Two Hundred Thousand Dollars ($200,000.00) is made against a party, exclusive of interest, the Arbitrator shall provide written findings of fact, conclusions of law and a statement as to the method of calculating damages. (8) Jurisdiction. The Arbitrator shall not be bound for jurisdictional purposes by the amount asserted in a party's claim, but shall conduct a preliminary hearing into the question of jurisdiction upon application of any party at the earliest convenient time, but not later than the commencement of the arbitration hearing. (9) Entry of Judgment. A party may apply to a court of competent jurisdiction for confirmation of an award, and for entry of judgment on an award. Payment of such judgment shall be made following receipt of the court's final, non-appealable decision or order. (10) Severance and Joinder. The Arbitrator may, on his own authority, join or sever parties or claims, as he may deem necessary for the just, prompt and efficient resolution of a dispute. The Arbitrator, however, is not authorized to join to the proceeding parties not in privity with the Borough or the Redeveloper. Nothing herein shall create the right by a party to assert against another party claims not recognized under the substantive law applicable to the dispute. (11) Appeal. A party may appeal the following: (i) an error of law by the Arbitrator if, and only if, the error occurred in an Arbitration in which an award in excess of $200,000.00 was made; (ii) the Arbitrator exercised powers contrary to or inconsistent with this Agreement; or (iii) any ground(s) provided for in N.J.S.A. 2A:24-8. Appeals shall be to the Superior Court and shall be made within fifteen (15) days of entry of the award. The Superior Court shall have the authority to confirm, vacate, modify or remand an award on appeal. (12) Statutory Arbitration Provisions. (a) Except as otherwise provided herein, Arbitration shall be governed by N.J.S.A. 2A:24-l et seq. (c) Fees and Costs. Each party shall be responsible to pay its own fees and costs associated with Arbitration, including, but not limited to, attorneys', witnesses' and experts' fees and costs; the arbitrator's fees shall be shared equally by the parties. (d) Confidentiality. A proceeding initiated under this Section shall be confidential to the extent permitted by New Jersey law. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURES APPEAR ON THE FOLLOWING PAGE]. 68