109-22 Developers Construction Agreement.pdf

1152-121 224456-3 1 109-22 DEVELOPER’S CONSTRUCTION AGREEMENT THIS DEVELOPER’S CONSTRUCTION AGREEMENT (this “Agreement”) is made and entered into as of the ____ day of __________, 2022, between: CSH WEST ORANGE, LLC, a Delaware limited liability company, with offices located at 1275 Pennsylvania Avenue, NW, Washington, D.C. 20004, and its successors and assigns (collectively, the “Developer”) and THE TOWNSHIP OF WEST ORANGE, in Essex County, a municipal corporation of the State of New Jersey, with offices located at 66 Main Street, West Orange, New Jersey 07052 (the “Township”) RECITALS WHEREAS: 1. The Developer intends to develop the land located at 609 Eagle Rock Avenue, West Orange, New Jersey, and more formally known as Lot 1412.01, in Block 152.22 (the “Property”). 2. By application of the Developer’s affiliate CSH Development, LLC, the Developer obtained preliminary and final major site plan approval, with the following associated use variances, bulk variances and design/waivers exceptions: (1) a “d(1)” use variance for an assisted living facility where same is not permitted in the B-2 zone, (2) a “(d)6” use variance for a 38.33 foot high building, whereas only a 35 foot high building is permitted, (3) a “c” variance for a three (3) story building, whereas only 2.5 stories are permitted, (4) a “c” variance for lot coverage greater than permitted where 60% is permitted and 66.8% (based on Effective Lot Area, as defined by the Township’s Code) is proposed, (5) a “c” variance for parking spaces proposed to be located in the front yard where same is not permitted, (6) a “c” variance for one (1) loading dock proposed whereas three (3) loading docks are required, (7) a “c” variance for

1152-121 224456-3 2 number of parking spaces less than required, where 100 parking spaces are required and 51 parking spaces are proposed, (8) a “c” variance for relief from the requirement of a 50-foot buffer from an adjoining residential zone, and (9) a “c” variance for an 8-foot wall to enclose the dumpster and generator, when the maximum wall height allowed is 6 feet (collectively, the “Approval”) to effectuate the Developer’s demolition of the existing structure at the Property and construction at the Property of a three-story assisted living facility, consisting of 77,190 square feet, along with customary site improvements and amenities (collectively, the “Project” or “Development”). The Approval was memorialized by resolution entitled “Resolution of the West Orange Zoning Board of Adjustment, Application No. ZB-21-04, 609 Eagle Rock Avenue (CSH Development, LLC)” adopted by the West Orange Zoning Board of Adjustment (the “Zoning Board”) on October 21, 2021 (the “Resolution”). The Resolution is attached to this Agreement as Exhibit A and incorporated herein at length. 3. The parties intend for this Agreement to set forth the terms and conditions of a Developer’s Construction Agreement to ensure compliance with the Municipal Land Use Law of the State of New Jersey (the “MLUL”), the Zoning and Land Development Ordinance of the Township of West Orange (the “LDO”), and the enumerated conditions of the Approval as set forth in the Resolution, and to further ensure the installation of all required Improvements. For purposes of this Agreement, the word “Improvements” shall be liberally defined to include all project improvements shown on or otherwise referenced on the Project plans submitted to and approved by the Zoning Board as part of the Approval, as modified by any conditions of approval set forth in the Resolution (collectively, the “Plans”) or in the Resolution. The original Resolution and the original Plans signed by the Zoning Board Chairman, Board Secretary and the Township Engineer are on file at the Office of Planning and Zoning in West Orange.

1152-121 224456-3 3 4. It is in the best interest of the Developer and the Township that this Agreement be entered to provide for fulfillment / implementation of all the requirements of the MLUL and the LDO, the conditions of the Approval, and the conditions of all other approvals imposed by any other governmental agency having jurisdiction over the matter. 5. In the event that any of the terms of this Agreement are more stringent than those set forth in the MLUL, the LDO or the Resolution, the Developer hereby agrees to comply with the more stringent provisions of this Agreement. 6. As a condition of the Approval, the Developer is required to enter into this Agreement with the Township, satisfactory to the Township Council, the Township Engineer, and the Township Attorney. NOW, THEREFORE, in consideration of the mutual undertakings set forth below, the Developer and the Township enter into this Agreement and agree to the following terms, covenants, and conditions: A. GENERAL: 1. The Developer understands and agrees that no clearing, grading, land disturbance, or removal of trees in any areas designated on the plans as an area of disturbance shall take place until such time as all State, County and local permits as required to be issued as a condition to commencement of such activity are obtained. The Developer further understands and agrees that no construction permit will be issued by the Township until the Developer complies with all applicable Township Ordinances and obtains all required permits and approvals from the State and local agencies, the County of Essex, and all other agencies with jurisdiction over the matter. The Developer shall, at Developer’s cost, obtain all necessary permits for work within public rights-of-way. The Developer shall also obtain, at Developer’s cost, all necessary permits for

1152-121 224456-3 4 excavation, curb removal, and road opening as well as any Township Soil Removal Permit which may be required. 2. The Developer agrees to be bound by all the terms and conditions of the Approval and applicable Township Ordinances, and to be bound by the testimony, representations, commitments, matters of fact and matters of law, as contained in the Resolution and / or which constitute the file and record of the Zoning Board, i.e., exhibits submitted in support of the application for the Approval, Zoning Board transcripts made in connection with the Approval and the Resolution. 3. The Development shall be in accordance with the MLUL, the LDO and the Residential Site Improvement Standards in effect as of the date of the Approval, except those provisions which are expressly waived by formal action of the Zoning Board as evidenced in the Resolution. It is expressly understood that unless a variance or waiver is specifically set forth in the language of the Resolution, no provision of the LDO is waived, even though there may be items on the Plans and supplementary documentation which may not be in strict compliance with the LDO. 4. Construction activity shall be prohibited on Sundays, New Year’s Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, the first day of Rosh Hashanah and Yom Kippur. The Developer further agrees to restrict all construction activity for site work and exterior construction to the hours of 8 a.m. to 6 p.m. Monday through Friday and 8 a.m. to 4 p.m. on Saturdays (unless other more stringent restrictions have been adopted by the Township and, in which event, such stricter regulations shall apply). In addition, the Developer agrees to restrict all interior construction activity to the hours of 6:00 a.m. to 8:00 p.m., Monday through Friday, and 6:00 a.m. to 4:00 p.m. on Saturdays (unless other more stringent restrictions

1152-121 224456-3 5 have been adopted by the Township, in which event, such stricter regulations shall apply). Upon written request by the Developer to the Township, work hours may be extended, in the discretion of the Township Engineer, to accommodate special construction operations requiring such extended hours for efficient completion. 5. All noise generated by construction activities shall also comply with the General Ordinances of the Township of West Orange and the rules and prevailing policies of the New Jersey Department of Environmental Protection, with the more restrictive provisions applying. 6. All real estate taxes and assessments on the Property shall be paid in full, as same become due, based upon bills and invoices duly prepared and issued by the Township for the Property. Failure to pay taxes shall be considered an event of default under this Agreement and shall entitle the Township to all remedies prescribed in this Agreement or as otherwise allowed under applicable laws. B. INFRASTRUCTURE: The Township shall make public sewer available to the site. The Developer shall provide all other utilities. C. PHASING OF DEVELOPMENT: Except as may be approved by the Zoning Board and as permitted by MLUL, the Project will be developed in a single phase. All utility connections shall be appropriately capped and secured. During all periods of construction, the Developer shall provide for appropriate site maintenance. D. PROJECT CONSTRUCTION: The Developer shall construct, in accordance with the specifications and design standards of the Township Ordinances, in a manner satisfactory to the Township Engineer, all

1152-121 224456-3 6 Improvements, including but not limited to, the installation of those items specifically set forth herein. The following construction sequence shall be adhered to, by the Developer for the Project. 1. Conditions to Commencement of Construction. Prior to issuance of construction permits or commencement of construction, (i) all conditions of the Approval applicable to construction of the Project shall be satisfied, the Plans shall be signed accepted by the Township, and all construction cost estimates, performance guarantees, inspection fees and other required fees and contributions shall be posted with the Township; (ii) all governmental permits required to be issued as a condition precedent to issuance of a construction permit or to commencement of construction shall be obtained, and the conditions of approval of those permits shall be satisfied as well; and (iii) the Developer shall supply the Township Clerk and Zoning Board Secretary with a recorded copy of all documents which must be recorded in conjunction with the Approval, if applicable. In addition, prior to issuance of zoning, development and construction permits, the Township Engineer must certify, in writing, and the Zoning Officer must find that all conditions of the Approval are satisfied, including, but not limited to, the grant of authority to the Township (at no cost) to exercise jurisdiction over the entire Project under Title 39 of New Jersey Statutes (should the Township wish to receive such authority). 2. Performance Guarantee. In accordance with the MLUL, the Developer agrees to post performance guarantees and escrows for the benefit of the Township in the amounts set

1152-121 224456-3 7 forth on Exhibit B, as determined by the Township, on the recommendation of the Township Engineer (collectively, the “Performance Guarantee”). The Performance Guarantee will consist of (i) a letter of credit or surety bond, in form and substance acceptable to the Township, as hereinafter provided, and (ii) a cash escrow held by the Township. The Performance Guarantee may be used by the Township to complete certain site improvements required by the Approval, as determined by the Township Engineer and specified on Exhibit B (collectively, the “Bonded Improvements”), in the event said Bonded Improvements are not accomplished by the Developer within the time as provided in the Approval or otherwise in this Agreement, and to compensate the Township for any repairs for damage caused by the Developer or the Developer’s agents, employees, representatives, contractors, or vendors (collectively, the “Developer’s Agents”) to public facilities resulting from construction of the Project. The Performance Guarantee will be reduced in accordance with the MLUL as the Bonded Improvements are completed, inspected and approved by the Township. 3. Performance Guarantee – Requirements for Letters of Credit, Surety Bonds and Cash Escrows. Any performance guarantee posted under this Agreement or in connection with the Project, whether in the form of a performance bond, letter of credit or other arrangement, shall be subject to the review and approval of the Township as to form and amount, through the Township Engineer and Township Attorney, and otherwise meet the requirements of the MLUL and other applicable law. Any performance bond shall be duly executed by the Developer as principal, and the surety company as surety, and shall be issued by an insurance company authorized to do business in the State of New Jersey. Any letter of credit shall provide for automatic extensions thereof, at the discretion of the Township, for a period of time reasonably required to complete the Bonded Improvements or to complete any other work secured by the

1152-121 224456-3 8 Performance Guarantee under this Agreement, and shall further provide for written notice to the Township of not less than thirty (30) days before its expiration, to enable the Township to determine if the letter of credit should be called before its expiration. The Developer agrees that in the event it becomes necessary for the Township to expend any part of any cash deposit, performance bond, letter of credit or other form of performance guarantee, the Developer shall replace the amount so used within thirty (30) days of the date the funds are disbursed. The use of the cash or the letter of credit by the Township shall not be considered a release of the Developer or of the performance guarantee, and the same shall be without prejudice to any rights the Township may have in connection with the construction or installation of the Improvements. 4. Maintenance Guarantee. The Developer agrees to post the two-year maintenance guarantees in accordance with and at the time required by the provisions of Township Ordinances, the MLUL, and applicable case law. 5. Construction Inspection Fee Escrow. The Developer agrees to pay the costs of inspection of Improvements by the Township Engineer, upon the terms set forth in the MLUL and LDO, by means of a cash escrow to be established by the Developer with the Township, in the amount determined by the Township Engineer and set forth on Exhibit B. (the “Inspection Escrow”). Payment of construction inspection fees pursuant to the MLUL and LDO, including those required for any off-tract Improvements shall be current at all times until completion of the Project. Any time the balance on account of the Inspection Escrow falls below the established minimum, the Developer shall, with reasonable notice of not less than ten (10) business days provided by the Township, immediately replenish the Inspection Escrow in an amount determined under and in accordance with the MLUL and LDO. The Township Engineer and other Township officials, in the Township’s discretion, shall suspend providing municipal

1152-121 224456-3 9 services for or with respect to the Project if the account falls below the minimum required amount, except if such municipal services impact public health and safety. 6. Pre-Construction Meeting. No later than seventy-two (72) hours prior to commencement of construction, a pre-construction meeting shall occur with the Township Engineer, the Township Construction Official, the Zoning Board Consulting Engineer, representatives of the Township Department of Public Works and the Hudson Essex Passaic Soil Conservation District (the “HEPSCD”), and the Developer and the Developer’s authorized representatives. The Developer agrees that arrangement of the said meeting shall be the responsibility of the Developer, and at the reasonable convenience of the Township Engineer. This meeting shall be arranged a minimum of one week prior to the date fixed for the said meeting. 7. Prior Notice to Commence Construction. Seventy-two (72) hours’ prior notice of intent to begin construction shall be given to the Township Engineer. Notice may be made by phone or email. 8. Documentation of Existing Public Improvements. The Developer shall retain a qualified individual who shall, prior to commencement of construction operations, prepare either a series of 3”x5”, 35mm, color photographs or a color video recording of the construction entrance and the proposed construction vehicle routing plan. The said documents shall be labeled, titled or narrated, time dated and in sufficient detail to document all physical features such as pavement, curbs, sidewalks, driveways, fences, lawns and other features which might be damaged during construction. The Developer shall notify the Township Engineer seventy-two (72) hours prior to preparing the said documents and shall provide the Township Engineer with two (2) copies of all documents produced.

1152-121 224456-3 10 9. Soil Erosion and Sediment Control. The Developer shall, at the Developer’s cost, arrange for the installation, inspection and approval by the HEPSCD of all soil erosion and sediment control devices. A copy of the approved soil erosion and sediment control plan(s) (the “HEPSCD Plans”) shall be kept on site at all times (and available for inspection by Township officials). 10. Construction Traffic and Site Access. Construction traffic shall be permitted to gain access to the site only through the construction access route specifically shown on the Plans. The construction access shall be maintained throughout the course of construction so as to provide safe, adequate, and appropriate emergency vehicular access to the construction site. The Developer shall arrange for and be responsible to pay for all costs of traffic control officers and vehicles as required under Township Ordinances. 11. Site Mobilization. Vehicles and manpower may access the site to commence the construction activities described in this Agreement. 12. Development Sequence. Except as otherwise approved by the Township Engineer and as otherwise required by governing permits, approvals or laws and regulations, the following sequence shall be observed by the Developer: Phase I Construct soil erosion and sediment control measures (“ESC Measures”) in accordance with the HEPSCD’s requirements and recommendations. A. Install stone anti-tracking pad and other ESC Measures including down slope perimeter hay bales and silt fence Phase II Concurrently A. Demolish the existing structures and remove required trees on the Property B. Clear and rough grade for new building site Phase III Concurrently