109-22 Developers Construction Agreement.pdf

1152-121 224456-3 11 A. Excavate and install building foundation. B. Install electric, telephone and cable utilities underground. C. Proceed with building construction. Phase IV Construct sanitary services in accordance with the approved plans and all local, County, State and federal Codes. At the Developer’s discretion, this work may begin earlier. Phase V Construct water and gas services in accordance with the approved plans, utility company standards and all local, County, State and Federal Codes. At the Developer’s discretion, this work may begin earlier. Phase VI Excavation and install site improvements including lighting, curbing, base paving & sidewalks. Construct off-site improvements including driveway openings and pedestrian sidewalk. At the Developer’s discretion, this work may begin earlier. Phase VII Install final vegetation and landscaping. Phase VIII Finalize building construction and install final paving and striping. Phase IX Construct basin sand filter and remove soil erosion and sediment control measures as required. 17. Developer’s Responsibility to Correct Environmental or Infrastructure Problems. In the event that during the course of construction, the Township or other governmental agencies or officials with jurisdiction over the Project identify environmental or infrastructure problems as a result of site activities, the Developer shall take reasonable measures to immediately remedy such environmental or infrastructure problems in a timely manner (in a fashion which is approved by the Township Engineer). 18. Certificate(s) of Occupancy. The Township agrees that it will issue a Temporary Certificate of Occupancy and a Certificate of Occupancy for the project pursuant to Section 25- 40-26 of the LDO and the Uniform Construction Code, which shall govern the terms and conditions of any such permits and certificates, and provided further that each of the following (as applicable) has occurred:

1152-121 224456-3 12 a. A valid building permit has been issued pursuant to Section 25- 40.2 of the LDO, and any and all other permits required by any governmental agency with jurisdiction over the construction of the Project have been issued; b. Any and all inspections required in connection with the completion of work contemplated by all requisite permits are satisfactorily completed. c. All required guaranties and deposits on file with the Township are current, including the payment of property taxes and inspection fees. E. COMPLETION OF IMPROVEMENTS: 1. All driveways and parking areas shall remain privately owned by the Developer or its successors. The Developer shall be responsible for all maintenance of all roads, cartways, access ways and driveways within the Project. Except as required by law, the Township shall have no responsibility for the performance or payment of any maintenance or improvements to any such cartways, roads, access ways or driveways. 2. All site Improvements shall be completely constructed within a period of five (5) years from the date of this Agreement as executed by the parties hereto. The issuance of a Certificate of Occupancy by the Township shall not be deemed a waiver or release of any defect found in the Improvements or acceptance of the Improvements during said period or subsequent thereto. 3. If the Property is sold or otherwise transferred by the Developer prior to the completion of all the Improvements, then, as a condition precedent to the continued construction of the Project, the Developer and the purchaser or transferee of the Property shall enter into an assignment and assumption agreement, with the consent and joinder of the Township, pursuant to which the purchaser or transferee assumes all of the Developer’s obligations under this Agreement and otherwise commits in writing to all terms, conditions and provisions of this

1152-121 224456-3 13 Agreement and the Approval (an “Assignment and Assumption Agreement”). (If the sale or transfer of the Property is involuntary or by operation of law, then, as a condition precedent to continued construction of the Project, the purchaser or transferee shall enter into a replacement Developer’s Construction Agreement with the Township.) F. SITE ACCESS: 1. The Township and its authorized representatives, consultants, professionals, employees, contractors, and agents (collectively, the “Township’s Agents”) shall be given free and liberal access to observe construction of the Improvements and all roads, sanitary sewers, water mains, storm sewers, buildings, landscaping and appurtenances as shown on the approved plans or required by Township Ordinances. Neither the Township nor any of the Township’s Agents shall incur any liability on behalf of the Developer or any third party as a result of failing to object, comment upon, or take action to stop or alter the means, methods, techniques, sequences or procedures of construction selected by the Developer or the Developer’s Agents for safety precautions and programs incident to the work on the Property, or for any failure or negligence of the Developer or the Developer’s Agents to fully comply with applicable laws, rules, regulations, ordinances, codes or orders. 2. The Developer hereby expressly agrees to release, defend, indemnify and hold the Township and the Township’s Agents harmless from and against any and all claims, damages, costs and liabilities for injury or damage received or sustained by any property, person, or entity in connection with, or on account of, the installation and completion of the Improvements and all other construction and installation anticipated, begun, or completed pursuant to the Approval (or Township Ordinances), which is the result of the Developer’s acts or omissions, or the acts or omissions of the Developer’s Agents. The Developer further agrees to aid and defend the

1152-121 224456-3 14 Township and the Township’s Agents or any or all of them, if named in any capacity in an action involving the foregoing claims or related claims with respect to the Property, the Improvements, or any construction or work arising from the Approval or Township Ordinances, which are the result of the Developer’s acts or omissions, or the acts of omissions of the Developer’s Agents. The parties acknowledge that the Developer is not a representative, consultant, agent or employee of the Township. The foregoing indemnification shall specifically exclude any and all acts or omissions of the Township, the Township’s Agents, and any person or entity other than the Developer and the Developer’s Agents. The Developer shall obtain and maintain for the duration of this Agreement insurance meeting the coverage requirements set forth on Exhibit C and naming the Township as an additional insured. G. SOIL EROSION AND SEDIMENT CONTROL: 1. Precautions relating to dust control shall be identified on the HEPSCD Plans and shall otherwise comply with the detail sheets in the latest version of the “Standards for Soil Erosion and Sediment Control in New Jersey” (the “Standards”). The Developer agrees to sweep, as frequently as determined to be necessary by the Standards, the HEPSCD or the Township Engineer, any and all public roadways where tracking of sediment occurs on one or more instances during any given day. The Developer further agrees that it shall be solely responsible for any sediment tracked onto public roadways by the Developer’s Agents, and any damage caused by the same, until issuance of the Certificate of Occupancy. In addition, the Developer agrees that any and all sediment tracked onto public roadways shall be removed by the Developer in such reasonable timeframe as established by the Township. In the event that the Developer fails to fulfill its obligation to remove sediment in public roadways, the Township may, without any obligation to do so, assume the said obligation and back charge the Developer

1152-121 224456-3 15 at prevailing rates for manpower and equipment necessary, and the Developer shall reimburse the Township within 30 days of receipt of any invoice or bill therefor. The Developer shall indemnify and hold the Township and the Township’s Agents harmless from any and all liabilities associated with the work performed in the said regard. 2. The Developer shall be solely responsible for inspection and maintenance of all ESC Measures shown on the approved Plans or required by the Standards. Upon noticing any deficiencies in either the maintenance or effectiveness of the approved ESC Measures, or upon receipt of notice of the same by the Township Engineer, the Developer agrees to take immediate action to correct said deficiencies, in a fashion reasonably acceptable to the Township Engineer. Such action may include, but not be limited to, restoration of the approved ESC Measures or providing a design for new soil erosion and sediment control measures prepared according to the Standards by a New Jersey licensed professional engineer to correct said deficiencies. No new designs for soil erosion and sediment control measures can be implemented or used without prior approval by the HEPSCD and the Township Engineer. 3. The Developer agrees to prevent sediment from leaving the site according to the Soil Erosion Act of New Jersey. The Developer further agrees to be solely responsible for any and all damages resulting from sediment leaving the site. The Developer also agrees to provide dust control as required, according to the Standards, in order to prevent negative impacts to adjacent areas. 4. In the event of a sale or other transfer of the Property, the Assignment and Assumption Agreement (or any replacement Developer’s Construction Agreement) shall provide that the purchaser or transferee, as successor to the Developer, shall be solely responsible for

1152-121 224456-3 16 proper maintenance and installation of all soil erosion and sediment control measures, devices, appurtenances, etc., required under this Agreement. H. TRAFFIC CONTROL AND ROADWAY CLOSING: 1. With respect to traffic, the Developer shall prepare and adhere to an approved traffic control plan based upon the Manual on Traffic Control Devices, specifically the section on construction maintenance signs. The existing structural condition of roadways accessing the site shall be documented as outlined under Section D of this Agreement above, and the Developer shall be responsible for all repairs to the said roadways resulting from damage caused by the Developer’s construction activity. Repairs of all damaged pavement found to be the Developer’s responsibility shall be made prior to issuance of the Certificate of Occupancy. 2. The Developer agrees there shall be no parking of construction-related vehicles on or within any existing public right-of-way. The Developer and its subcontractors shall become familiar with and utilize all approved truck routes and follow weight limits of all access routes to the Project. 3. In the event of any road closures, the Developer further agrees to first seek the approval of the Township Engineer and Township Council. The Developer is also aware that appropriate detour traffic signs must be in place and there must also be prior notice to the Police Department, all emergency services, the Board of Education and the public at large. 4. Unless otherwise indicated, the Developer agrees to be responsible for the installation, maintenance, and removal of all traffic control signs and traffic safety devices until such time as all site construction is completed, and a Certificate of Occupancy has been issued. 5. The Developer hereby grants Title 39 permission (N.J.S.A. 40:39-1 et seq.) to the Township to permit the enforcement of traffic and motor vehicle regulations.

1152-121 224456-3 17 I. SANITARY FACILITIES: 1. The Developer agrees to install and maintain at the Developer’s cost, according to law, sanitary facilities (toilets) necessary to accommodate the entire on-site work force. The sanitary facilities shall be in a suitable / discreet location approved by the Township Engineer. J. COORDINATION WITH MUNICIPAL EMERGENCY SERVICES: 1. Unless otherwise waived by the Township or the West Orange Fire Department, the Developer shall accommodate the cost of two training sessions for the West Orange Fire Department to be conducted at the Property and the Project. K. INSPECTION FEES: As provided in Section D of this Agreement above, the Inspection Escrow shall be established, debited and replenished in accordance with the of the MLUL and the LDO, in an amount to be determined by the Township Engineer. L. DAMAGE TO PUBLIC AND PRIVATE PROPERTY: 1. Developer is responsible for any damage caused by, or related to, construction of the Project which it fails to correct or repair. Any public facilities damaged during the construction process which contribute to an immediate threat to the public health, safety, or welfare shall be repaired within a reasonable timeframe, as established by the Township. Additionally, any other obligations of the Developer to repair damaged public facilities caused by the Developer shall be required only after the Developer is given written notice of the damage, and a 30-day opportunity to correct or cure the same. Continuous maintenance and repair of municipal roadways damaged during the course of construction shall be a continuing obligation of the Developer, subject to the foregoing provisions.

1152-121 224456-3 18 2. The Developer shall use reasonable precautions to prevent damage to public and private property, trees, landscaping and structures along and adjacent to the Project. The Developer agrees, at the Developer’s cost, to make all necessary arrangements with the respective utility companies prior to relocation or interruption of service. 3. The Developer agrees not to enter upon or make use of any private property abutting or in proximity to the Project, except where permission is secured in writing therefor from the owner. The Township agrees to utilize good faith efforts to obtain (at no cost) from the affected private property owner(s) any necessary construction access easements or right-of-entry agreements (each a “Construction Access Agreement”) so as to allow the Developer to install the improvements required by the Resolution. The Township has no obligation to resort to litigation to obtain any such Construction Access Agreement, and nothing contained in this Agreement shall require the Township to provide money or other consideration to any affected private property owner to fulfill the terms of this Agreement. In the event an affected private property owner does not agree to enter into a Construction Access Agreement, the Developer shall be obligated to completing only such work as can be accomplished with access only to the public right-of-way. The Developer agrees to restore or repair, in a reasonable manner satisfactory to the owner, such property which may be damaged by the Developer or the Developer’s Agents during the execution of the Project or by the work associated therewith. 4. Failure to correct damage to public and private property caused by the Developer or the Developer’s Agents during the execution of the Project shall render the Developer in breach of this Agreement and subject the Developer to the remedies prescribed in this Agreement or as otherwise allowed under applicable laws.

1152-121 224456-3 19 M. CONSTRUCTION INSPECTIONS AND SPECIFICATIONS: 1. The Developer agrees that all construction methods and materials shall comply with approved plans. 2. Construction inspection shall be performed under the supervision of the Township Engineer. The Developer agrees to request inspection by the Township Engineer a minimum of two (2) business days prior to beginning any of the following activities: (i) ESC Measures, (ii) preparation of road subgrade, (iii) curb and gutter (forms), (iv) curb and gutter (material placement), (v) road surface and paving, (vi) sidewalk (forms), (vii) sidewalks (material placement), (viii) storm drainage pipes and other drainage or flood control facilities (including detention), (ix) street and traffic control signs, (x) sanitary sewer trench compactor, (xi) water main trench compactor and services, (xii) landscaping, (xiii) traffic safety measures, (xiv) paving of parking areas and (xv) parking lot striping. 3. The Developer understands and agrees that failure to request inspection as set forth herein may result in uninspected Improvements being summarily rejected, removed and replaced, and not eligible for release or reduction of the Performance Guarantee. 4. The Developer understands and agrees that in addition to the above, random and periodic inspections of the Project are required to ensure compliance with this Agreement. The

1152-121 224456-3 20 Township is permitted to make such reasonable inspections without notice to the Developer or its site representative. 5. The Developer agrees that inspection by the Township of the installation of Improvements and utilities shall not operate to subject the Township or the Township’s Agents to claims, suits or liability of any kind which may at any time arise because of defects or negligence caused by the Developer or the Developer’s Agents during or as a result of construction. The Developer recognizes its responsibility to maintain safe conditions at all times during construction, prior to acceptance of the Improvements by the Township, and during the Developer’s required maintenance period after Township acceptance. The Developer agrees to provide proper utilities, appropriate temporary site improvements and site accessibility at all times during construction. 6. The Developer agrees that neither the Township nor the Township’s Agents shall have control or charge of construction means, methods, techniques, sequences, procedures or safety precautions and programs in connection with the work and, therefore, shall not be held responsible for or have control or charge over any acts or omissions of the Developer, the Developer’s Agents or any other person performing any work related to the Development. The Developer agrees, however, that nothing herein shall preclude the Township from exercising all available remedies, including injunctive relief, to insure compliance with the terms and conditions of this Agreement, or to otherwise protect and promote public health, safety, and welfare. N. ENGINEERING DETAILS: 1. The Developer understands that all conditions cannot be anticipated in the Plans and may require field changes. The Developer agrees that the Township reserves the right to