109-22 Developers Construction Agreement.pdf

1152-121 224456-3 21 require reasonable changes to the Project that, in the opinion of the Township Engineer, and after consultation with the Developer’s on-site representatives, are necessary to implement the intent of the Plans. Prior to implementation of any such change, the Developer further agrees that the Township Engineer (and if required by Township Ordinance, the Zoning Board) must approve any deviation from the Plans, unless the Township Engineer renders an opinion, in writing, that such approval is not required. O. DEVELOPER REPRESENTATIVE ON SITE: The Developer agrees to maintain an authorized English-speaking representative on site who is a competent and responsible person under the Occupational Safety and Hazards Act at all times during construction and installation of Improvements. The said representative shall have authority to correct any deficiency and to correct any unsafe conditions as noted by the Township Engineer, the Township Public Works Superintendent, the Township Construction Official, or the Township Zoning Officer, or any of their respective authorized representatives. The Developer shall be responsible for notifying the aforementioned officials of the name, address, e-mail address and telephone number of Developer’s authorized representative. Failure to provide on-site representation 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. P. PERMITS: 1. The Developer agrees to obtain and keep in its possession at the job site all local and State permits and approvals required to construct this Project, or to perform any activity required to construct the Project. The Developer shall present true copies of the permits to Township officials (when requested to do so). The Developer agrees to provide any and all

1152-121 224456-3 22 notices required by said permits. The Developer’s authorized representative shall, at all times, possess on-site copies of all permits and approved plans issued for inspection purposes. 2. In the event that there is any violation of any local, State or federal permit, the Developer shall provide the Township Engineer with notice of any such violation within twenty- four (24) hours of receiving the notice of violation. Q. AFFORDABLE HOUSING COMPLIANCE: 1. As memorialized in the Resolution, the Project will include 10 Medicaid beds in satisfaction of Township requirements. The Township hereby confirms that the foregoing provision and Medicaid beds and COAH units satisfies all Township affordable housing requirements and that the Project is subject to no further Township fees, contributions or other requirements with respect to affordable housing. R. CONSTRUCTION AND MAINTENANCE OF ROADWAY AND STORM WATER MANAGEMENT AREAS: 1. The Developer shall be solely responsible for the construction and maintenance of all roadways within the property as hereinafter may be constructed in accordance with the Resolution. The Developer shall provide the necessary easements to the Township permitting access for the purpose of delivering municipal services over said roadways on the Property. 2. Subject to the Township’s obligation under Section B of this Agreement above to make sanitary sewer available to the Property, the Developer shall be solely responsible for the installation of any and all utilities, including, but not limited to electricity, water, sewer, storm drainage, cable television, street and exterior lighting and fire prevention. S. MUNICIPAL RESPONSIBILITY: 1. The Township shall perform all of its obligations under this Agreement and as otherwise set forth in the Resolution.

1152-121 224456-3 23 T. NOTICE OF NON-COMPLIANCE: The Township shall issue a notice of non-compliance upon any violation of this Agreement. Township Construction Code violations are governed by the Uniform Construction Code and are not modified by this Agreement. The Developer agrees to eliminate any violation within a reasonable time, depending upon the nature of the violation as set forth in a written violation notice, or may be subject to receipt of a stop work order in accordance with this Agreement, provided, however, that the Township Engineer shall have the discretion to extend any period set forth in the violation notice if it is demonstrated to him that the Developer is diligently pursuing a remedy to the non-compliance, and the public interest is not jeopardized. The Developer agrees to use best efforts to eliminate any violation within the time period set forth in any such violation notice. U. MISCELLANEOUS: The parties hereby specifically agree as follows: a. Any and all easements required by the Project and to which the Township is a party shall be reviewed and approved by the Township Engineer, the Township Attorney and, if so required by Township Ordinance, the Township Council. b. All provisions of this Agreement shall comply with prevailing New Jersey law, as may be amended from time to time. V. REMEDIES: 1. The Township may declare the Developer in default under this Agreement, provided written notice of the facts giving rise to said default is provided to the Developer, and a thirty- (30-) day period is provided within which the Developer may cure or demonstrate the ability to cure such default. In the event the default is not cured within said thirty- (30-) day

1152-121 224456-3 24 period, but the Developer has demonstrated to the satisfaction of the Township the ability and willingness to cure said default and has commenced to cure said default within said thirty- (30-) day period, and further provided the public interest is not jeopardized, the Township may permit the Developer such reasonable time as may be required to cure the default. In the event the Developer shall fail to cure the default within said thirty- (30-) day period or fail to commence and diligently pursue such action as may be required to cure such default within said thirty- (30-) day period, the Township may act to formally declare the Developer in default. A default by the Developer under the terms of this Agreement, the Approval or an approval issued by any other governmental authority having jurisdiction over the Project shall entitle the Township to issue a stop-work order by the Township Zoning Officer or the Township Construction Official. If the default is not cured within the time period indicated in the stop-work order, the Township may proceed to exercise its right and to utilize any and all security available to cure the default. 2. The Township may issue a stop work order for any construction activities associated with the Development if the Developer does not cure the violation set forth in the notice of noncompliance. The Developer agrees not to resume any construction activity until written notice to proceed is received from the Township. The Developer may only perform any construction activity necessary to cure the noticed violation (in conjunction with written approval from the Township Engineer). 3. The parties also acknowledge that any dispute or breach of the terms of this Agreement may also be resolved in the Superior Court, Chancery Division, Essex County. The parties submit to the jurisdiction of said Court and agree that any aggrieved party shall, in addition to all other available remedies, be entitled to injunctive relief on notice to the other party as required by Court rules. The parties also waive any right to a jury trial.

1152-121 224456-3 25 4. The Developer understands that any failure by the Developer in violation of the terms of this Agreement to immediately correct any deficiency determined by the Township to be an imminent hazard or an imminent threat to public health or safety will be considered automatic authorization for the Township to have said deficiency corrected and the Township and the Township’s Agents have the right (but not the obligation) to enter the Property to remedy any such defects. The Developer agrees to reimburse the Township for all reasonable costs resulting from the repair of said deficiency and all reasonable costs of damages resulting from the Developer’s lack of response to correct said deficiency in breach of this Agreement. 5. In the event that the Township must advance monies to repair any deficiencies, such costs shall be a lien on the Property. The Developer shall sign a lien form to be held in escrow by the Township Attorney for purposes of filing in the event of violation of the within provision. 6. The Township consents to the discharge of the recorded Developer’s Agreements dated July 12, 1997, and recorded in Essex County deed book 550, pages 167 et seq. and dated July 12, 1997 and recorded in Essex County Deed Book 5509, pages 611 et seq (collectively, the “Original Developer’s Agreements”). The Township will take all necessary action reasonably required to release the Original Developer’s Agreement of record, at the Developer’s sole cost and expense, concurrently with the Township’s execution and delivery of this Agreement. 7. It is understood between the parties that the obligations under this Developer’s Agreement will terminate when the required bonds are discharged by resolution of the Township Council. Upon such discharge by resolution, the Township promptly will execute one or more

1152-121 224456-3 26 instruments in form and substance sufficient to terminate this Agreement and to release any recorded memorandum of this Agreement of record. W. ENTIRE AGREEMENT: This Agreement, together with the Approval, sets forth the promises, agreements, conditions and understandings between the parties hereto relative to the subject matter hereof. Except as herein otherwise specifically provided, subsequent alterations, amendments, changes or additions to this Agreement must be in writing and signed by the Township and the Developer. X. NO WAIVER: Nothing herein shall be construed as a waiver by the Township of the requirements of the MLUL, any Township Ordinance, or any requirements or conditions of the Approval unless such waiver is specifically stated. Y. SUCCESSORS AND ASSIGNS BOUND: All the terms, covenants and conditions set forth in this Agreement shall be for and shall inure to the benefit of and shall be binding upon the respective parties hereto and their successors and assigns. The Developer’s assignment of this Agreement and the Approval to a successor-in- interest is governed by Section E of this Agreement above. If a purchaser or other transferee of the Property assignee fails to enter into an Assignment and Assumption Agreement (or replacement Developer’s Construction Agreement) in accordance with Section E of this Agreement, then the Township shall have the right to withdraw the Approval and proceed with such other relief as may be appropriate. No assignment of this Agreement or the Approval shall be complete until notice has been provided to the Township pursuant to Section 94-7.4 of the LDO. A memorandum of this Agreement, in form and substance acceptable to the Developer and

1152-121 224456-3 27 the Township, shall (if desired by the Township) be recorded, at the Developer’s expense, in the office of the Essex County Clerk. Z. NOTICES: All notices hereunder shall be in writing given by personal delivery or by certified mail, return receipt requested postage prepaid addressed as follows: As to the Developer addressed to: CSH West Orange, LLC 1275 Pennsylvania Avenue, NW Second Floor Washington, DC 20004 202-469-8400 joe.mcelwee@cshpe.com With a copy to: Robert L. Podvey, Esq. Connell Foley, LLP 56 Livingston Avenue Roseland, New Jersey 07068 973-535-0500 rpodvey@connellfoley.com As to the Township, addressed to: Township Clerk Karen Carnevale, RMC 66 Main Street Room 101 West Orange, NJ 07052 973-325-4157 Kcarnevale@westorange.org

1152-121 224456-3 28 With a copy to: Township Attorney Richard D. Trenk, Esq. Trenk Isabel, PC 290 W Mount Pleasant Avenue Building 3, Suite 2350 Livingston, NJ 07039 973-533-1000 RTrenk@trenkisabel.law Township Engineer, Leonard Lepore, P.E. 25 Lakeside Avenue West Orange, NJ 07052 LLepore@westorange.org or such other address and to the attention of such person as may be designated in writing from time to time. Any notice given under this Agreement shall be deemed to be received either on the day of personal service, three business days thereafter if delivered by mail, or on the day following the notice if delivered by overnight mail. AA. AUTHORIZED ACT: All parties hereto agree that the execution of this Agreement is the authorized act of each of the respective parties hereto. [SIGNATURE PAGE FOLLOWS]

1152-121 224456-3 29 IN WITNESS WHEREOF, the parties hereto have caused this document to be entered into as of the day and year first above written. WITNESS: CSH WEST ORANGE, LLC ___________________________________ By: ______________________________ Joseph F. McElwee, Vice President ATTEST: TOWNSHIP OF WEST ORANGE ___________________________________ By: ______________________________ Karen J. Carnevale, RMC, Township Clerk Robert D. Parisi, Mayor

1152-121 224456-3 30 EXHIBIT A ZONING BOARD RESOLUTION