Settlement of Litigation Agreement 2020

SETTLEMENT OF LITIGATION AGREEMENT This Settlement of Litigation Agreement (the “Agreement”) is entered into this___ day of » 2020, by and between WEST ESSEX HIGHLANDS, INC., a corporation of the State of New Jersey having a businéss address of 820 Morris Turnpike, Short Hills, New Jersey 07078 (“WEHI”), the TOWNSHIP OF WEST ORANGE, County of Essex, State of New Jersey, a municipal corporation of the State of New Jersey with a business address of 66 Main Street, West Orange, New Jersey 07052 (the “Township”), and WEST ESSEX HIGHLANDS CONDOMINIUM ASSOCIATION, INC., having an address of 1 Reger Lane, West Orange, New Jersey 07052 (the “Association”), Collectively, WEHI, the Township and the Association shall be referred to as the “Parties,” WITNESSETH: WHEREAS, this Agreement concerns the development of real property consisting of approximately 120.5 acres generally located in the northwest corer of the Township adjacent to the northern terminus of Warner Road, which property is specifically identified as Block 179, Lot 32 on the Township's Official Tax Map (the “Subject Property”); and ‘WHEREAS, the Subject Property is generally bordered by the Township of Essex Fells (“Essex Fells”) to the west, the Township of Verona (“Verona”) to the north, and the West Essex Highlands Condominium development in West Orange (the “Condominivm”) to the south; WHEREAS, the Association is duly constituted condominium association for the Condominium; WHEREAS, WEHI is the owner of the Subject Property; and WHEREAS, the Township instituted certain litigation now pending in the Superior Court of New Jersey, Law Division, Essex County captioned In the Matter of the Application of the

Township of West Orange, Docket No, ESX-L-4697-15 (the “Declaratory Judgment Litigation”); and WHEREAS, the Declaratory Judgment Litigation seeks declaratory relief approving the Township’s plan to satisfy its current affordable housing obligation and immunity from builders’ remedy lawsuits through the year 2025; and WHEREAS, WEH] intervened as a defendant in the Declaratory Judgment Litigation; WHEREAS, WEHI and the Township engaged in court-ordered mediation with Elizabeth McManus, P.P., the court-appointed Special Master in the Declaratory Judgment Litigation; and WHEREAS, the Association is not a party to the Declaratory Judgment Litigation, but WEHI and the Township recognized the Association, an adjacent neighbor to the Subject Property, as an interested party with respect to' the development of the Subject Property whose participation and input at mediation was deemed essential; WHEREAS, the Township wishes to include the Subject Property as part of its affordable housing compliance plan in connection with the Declaratory Judgment Litigation; and WHEREAS, the Parties, subject to the terms hereof and all other required governmental approvals, have agreed that the Subject Property shall be developed as a multi-family residential development consisting of 396 market rate units and 100 affordable units, for a total of 496 units, and a clubhouse/amenity buildings (the “Proposed Development”) consistent with the “West Essex Highlands Concept Plan 16 for West Essex Highlands, Block 179, Lot 32, Township of West Orange, Essex County, New Jersey” dated March 3, 2020 prepared by Anderson Consulting Services, LLC (the “Concept Plan”), a true copy of which is attached hereto as Exhibit A; and WHEREAS, the Concept Plan reflects certain requests by the Association, including that (1) the Proposed Development be located a sizeable distance from the Subject Property’s boundary

with the Condominium; (2) Bayowski Drive remain a cul-de-sac and will only serve as an emergency access point to the Proposed Development; (3) the Proposed Development result in a minimal amount of disturbance to the Subject Property; and (4) Warner Road is intended as the primary means of access to the Proposed Development; and WHEREAS, the Parties, subject to the terms hereof, have agreed that the Proposed Development shall include an affordable housing set aside of 20% of the total units constructed; and WHEREAS, the Subject Property is not presently zoned as to permit the development of the Proposed Development; and : WHEREAS, Township has agreed to adopt an ordinance rezoning the Subject Property so as to permit the construction of the Proposed Development as of right consistent with the permitted uses and bulk standards as set forth in a proposed amendment to the Zoning Ordinance of the Township in the form attached hereto and made a part hereof as Exhibit B (the “Zoning Amendment”); and , WHEREAS, the Parties recognize and agree that the Proposed Development shall be accomplished in a manner consistent with the design terms and conditions set forth in Exhibit C, attached hereto (the “Design Terms and Conditions”); and WHEREAS, the Parties recognize and agree that the Proposed Development shall be accomplished in a manner consistent with the terms and conditions agreed to by the Association and WEHI, as set forth in Exhibit D, attached hereto (the “Association Terms and Conditions”); and WHEREAS, the Planning Board of the Township of West Orange (the “Planning Board”) is not a parly to this Settlement Agreement. However, the Parties understand and

anticipate that the Planning Board will consider the Proposed Development in accordance with - applicable land use laws, municipal ordinances and the Township’s approval of this Agreement; and WHEREAS, in order to amicably resolve all issues in the Declaratory Judgment Litigation, the Township shall adopt the Zoning Amendment in a manner consistent with this Agreement; and WHEREAS, the Parties have reached an amicable settlement of the Declaratory Judgment Litigation, and desire and intend to memorialize the settlement by the execution of this Agreement. NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES, TERMS AND CONDITIONS SET FORTH HEREIN, INTENDING TO BE LEGALLY BOUND HEREBY, THE PARTIES AGREE AS FOLLOWS: 1. RECITALS. The WHEREAS recital paragraphs hereinabove set forth are incorporated herein by reference. 1.1 PURPOSE. The Purpose of this Agreement is to amicably resolve the Declaratory Judgment Litigation consistent with the terms hereof which, in part, are intended to ensure the construction of the Proposed Development generally consistent with the Concept Plan, 2. OBLIGATIONS OF THE TOWNSHIP. 2.1. Adoption of Zoning Amendment. Within one hundred twenty days (120) days from Court approval of this Agreement at a duly noticed Fairness Hearing, the Township shall move and vote on the adoption of an ordinance similar in all material respects to the Zoning Amendment after a duly noticed public hearing. Within the same time period, the Planning Board shall make recommendation on the Zoning Amendment in accordance with the procedures of the Municipal Land Use Law, N.LS.A. 40:55D-1, et seq. (“MLUL”), Simultaneously, to the extent

necessary, the Council shall submit an amendment to the Master Plan for consideration by the Planning Board consistent with the Zoning Amendment, The Township hereby agrees not to take any action which will modify the Zoning Amendment or which will otherwise require a variance application in connection with the Proposed Development without the consent of WEHI. 2.2. Obligation to Cooperate. The Parties acknowledge that in order to construct the Proposed Development on the Subject Property, WEHI will be required to obtain all necessary agreements, approvals and permits from all relevant public entities and utilities; such as, by way of example only, the Planning Board, the County of Essex, the Essex County Planning Board, and the State of New Jersey, Department of Environmental Protection (“NJDEP”) -- including all ordinance requirements as to site plan and/or subdivision approvals (collectively, the “Required Approvals”). The Parties agree to cooperate in all undertakings to obtain the Required Approvals, including but not limited to those approvals required for the installation of a traffic signal at the intersection of Eagle Rock Avenue and Oval Road, including the Township exercising its eminent domain/condemnation powers. All expenses to obtain approvals and acquisition of property shall be at WEHI’s sole cost and expense. If any public takings are necessary for intersection improvements, WEHI shall have the sole authority to settle any condemnation proceedings and WEHI shall fund all expenses of any condemnation process, including but not limited to legal fees, appraisals and any other experts and any just compensation required by any settlement or formal decision awarding such compensation. Within five (5) days of the Township Council’s approval of this Agreement, the Township shall provide a copy of this Agreement to the Planning Board, Although the Association and WEHI may desire for the Township to accept a dedication of Oval Road as a public road, the Township does not presently have a desire to accept Oval Road as a public road and is under no obligation to do so in the future,

2.3. Obligation to Cooperate Regarding Utilitics, Including Public Sewer and Water Service. The Township and WEHI shall reasonably cooperate with respect to WEHI's providing utility service, including but not limited to sewer, water, electric and/or natural gas through appropriate means, including but not limited to the Township’s endorsing all reasonable NJDEP LURP forms, Sewer Extension and Water Extension forms, Water Quality Management Plan and Wastewater Management Plan Amendments and other governmental applications which are reasonably required to facilitate the Proposed Development on the Subject Property; and WEHI’s efforts to obtain water and sewer and other utility services for the Subject Property; and the application, if necessary, to amend appropriate Water Quality Management Plans, Wastewater Management Plans and the like to include the Subject Property; and. WEHI’s obtaining any and all local, county, or regional Sewer Authority approvals, County Planning Board approvals, Stormwater Drainage approvals, and generally cooperate in the obtaining of all land development approvals. Absent a denial by a governmental entity with appropriate jurisdiction, the Proposed Development will be sewered in the Township at WEHI’s sole cost and expense. 24, Concept Plan. The Parties have reviewed the Concept Plan (Exhibit A) and find the design of the Proposed Development as represented on the Concept Plan to be feasible and acceptable as well as consistent with the Zoning Amendment (Exhibit B), subject to the addition of amenities buildings and structures within the general area of disturbance depicted on the Concept Plan (i.c., clubhouse, dog park, maintenance shed and other aesthetic considerations), The Parties have agreed to implement the Design Terms and Conditions set forth on Exhibit C annexed hereto.

2.5. Planning Board Process: 2.5.1. Completeness. WEHI will complete and submit site plan and/or subdivision applications for the Subject’ Property, consistent with this Agreement, which applications shall be reviewed by the Township Planner and Township Engineer for purposes of determining completeness, as defined by the MLUL, and compliance with the Zoning Amendment and applicable Design Terms and Conditions. WEHI shall contemporaneously submit a copy of all application materials to the Association. In accordance with the MLUL, completeness determination by the Board must occur within forty five (45) days of submission. In addition, WEBI shall submit all plans to DeFeo & Associates, the Township’s environmental consultant, for review and comment. WEHI shall meet with DeFeo & Associates in good faith regarding the location and implementation of fencing and other items designed to regenerate the undergrowth of the Subject Property. Unless otherwise modified by the terms of this Agreement, the MLUL applies to the Township’s review and adjudication of WEHI’s applications. 2.5.2, Decision By the Planning Board. After the Planning Board determines that WEHI’s applications are complete, the Board shall schedule the public hearing on the applications. Action on the subdivision and site plan applications shall be taken in accordance with the MLUL. Ifnecessary, the Township shall ask the Planning Board to provide WEHI with a special meeting(s) for the review of the development application at WEHI’s sole cost and expense. 2.5.3. Fees. The Township recognizes that any approvals and this Agreement al! contemplate the development of an “inclusionary development” within the meaning of the Mount Laurel doctrine, and WEHI shall be entitled to any benefits, protections and obligations afforded to developers of inclusionary developments, including but not limited to protections from the

imposition of cost-generative requirements, pursuant to N.LA.C. 5:93-10 and N.LA.C. 5:97-10. WEHI agrees to pay all typical application fees and escrows and permit fees in connection with its application to the Planning Board and subsequent construction of the Proposed Development. The Parties recognize that the Proposed Development is not yet fully engineered. Upon the full engineering, WEHI may apply for waivers or bulk variances from any standard imposed by the Township's Land Use and Development Ordinance or any other Township ordinance, as applicable, and WEHI may seek waivers or de minimis exceptions to any standard or requirement of New Jersey’s Residential Site Improvement Standards (“RSIS”) in accordance with the applicable regulations. To the extent a full engineering of the Proposed Development requires WEHI to seek reasonable relief from a Township ordinance not specifically contemplated by this Agreement, the Township will consider same in good faith. The Township recognizes that a full engineering of the Proposed Development may require WEHI to make alterations to the Concept Plan in order to accommodate the locatior/installation of utilities, amenities and other related development concerns. The Township and WEHI agree that the Concepi Plan, which includes Kuzik Drive as a means of ingress/egress for the Subject Properly, complies with RSIS regarding traffic circulation. However, pursuant to the Association Terms and Conditions, WEHI will first seek approval to eliminate Kuzik Drive as an access point, which will require WEHI to obtain a de minimis exception from RSIS. The Township and Association support the granting of such a de minimis exception. “However, if the Planning Board does not grant such an exception, then WEHI will pursue its application with Kuzik Drive as a means of ingress/egress, which would be acceptable to the Association pursuant to the Association Terms and Conditions. Finally, the Township and WEHI recognize that the Proposed’ Development will require the installation of a traffic signal at the intersection of Oval Road and Eagle Rock Avenue, an Essex County Road.

Aside the improvements associated with the installation of that traffic signal and those improvements agreed to between WEHI and the Association as set forth in the Association Terms and Conditions, the Township will not require WEHI to make any other offtract or off-site improvements. 254, Trees. The Township and WEHI recognize the Subject Property is heavily wooded. In that regard, the Township commissioned a tree study, the results of which are reflected in the tree study report of DeFeo Associates dated February 3, 2020 (the “Tree Study”), As set forth in the Tree Study, the overall health of the forest on the Subject Property is weak and the ability of the forest to regenerate itself is poor. The Township and WEHI recognize the importance of preserving and/or optimizing the regeneration of the forest in connection with the development of the Subject Property, but also recognize that the Township’s Tree Protection and Removal Ordinance (Ordinance § 25-7) {the “Tree Ordinance”), if applied to the Proposed Development, would constitute a cost-generative requirement contrary to Section 2.5.3 of this Agreement. In light of the foregoing, the parties agree that tree removal and replacement for the Proposed Development shall be governed by the Design Terms and Conditions attached hereto as Exhibit C, specifically Section 2 (Site & Landscaping). 2.5.5. Steep Slopes. The Concept Plan reflects the Township’s requirement that the Proposed Development be located west of a certain point near the ridgeline located on the eastern portion of the Subject Property. The Proposed Development, as set forth on the Concept Plan, must strictly abide by the Township’s request that all structures for the Proposed Development are located west of the ridgeline. To the extent that any portion of the Proposed Development as contemplated in this Agreement would be restricted and/or prohibited by the Township's Steep Slope and Natural Features Ordinance, Township Code § 25-28.1 through 28.10

(the “Steep Slope Ordinance”), including the Adequate Contiguous Area Ordinance (§ 25-28.9), the Steep Slope Ordinance shall not apply to the Proposed Development, which shall be reflected in the Zoning Amendment. 2.5.6. The Parties’ engineering representatives shall consult with one another and other professional staff as they deem appropriate to discuss the status of the application once the application is submitted. Such communications are intended to allow for informal review, comments and discussion in order to facilitate consideration of the Proposed Development, with the understanding that the Township professional staff has no authority to approve or reject an application and that these technical review meetings and other communications are not intended ~ to usurp or limit the Planning Board’s statutory authority. Said discussions shall continue until the Parties deem further meetings unnecessary. The same process shall be followed for final approval applications, if separate from the preliminary approval application, and for subsequent applications. WEHI shall have the right to file simultaneous applications for preliminary and final site plan and subdivision approvals. Insofar as this application qualifies as a major site plan, it shall also be subject to review by the Site Plan Review Advisory Board (“SPRAB”) prior to a public hearing by the Planning Board. 2.5.7. The Township agrees that WEHI may elect, to the extent permitted by law, to pursue approval of development phases, provided that every phase must provide the mandated affordable units in each phase pursuant to N.J.A.C. 5:97-6.3(d) and cannot be backended. 2.6. Because the Proposed Development provides a substantial set aside of affordable housing units, any affordable housing residential development fees required by Township ordinance for non-inclusionary developments shall not apply to the Proposed Development. 10