238-26 - 410 Main Settlement.pdf

defend this Settlement Agreement. The Township agrees to contact the Court to request a fairness hearing be promptly scheduled, if one is required. The Township is responsible for the preparation and cost of the notice of the Fairness Hearing. The Parties will work together to ensure that the Court approves the Agreement at the Fairness Hearing. If this Agreement is not approved by the Court following any required fairness hearing, then this Agreement shall be deemed terminated and shall be of no further force and effect, and the Parties shall return to their respective positions as if this Agreement had not been executed by the Parties, subject to any order of the Court. 2.12 Parking, Traffic, Access, and Off-Site Improvements Developer shall be responsible, at its sole cost and expense, for satisfying all parking, traffic, access, loading, refuse, utility, stormwater, pedestrian safety, and off-site improvement requirements applicable to the Inclusionary Project, including those required by the Township, 11

Planning Board, Essex County, any outside agency, or any condition of approval, except as expressly provided otherwise in this Agreement. Developer shall implement all parking, traffic, access, and off-site improvement measures agreed upon by the Parties and/or required by any approval, including: a. construction and maintenance of no fewer than nineteen (19) on-site parking spaces, with the area formerly proposed as ground floor commercial space in the Prior Application to be converted to structured/underground parking; b. purchase and annual repurchase by Developer of five (5) municipal parking permits at the standard municipal rate (to the extent the permits are available for purchase), in accordance with Paragraph 1.3(e) herein; c. installation and maintenance by Developer of a pedestrian warning device for vehicles exiting the parking garage; d. maintenance of the 5.14-foot setback from Park Drive North as shown on Developer’s concept plan; e. delivery, loading, trash pickup, private hauler, rideshare, curb management, and similar operational measures required by the Planning Board or outside agencies; and f. any other traffic, parking, access, utility, or site mitigation measures required by the Planning Board, Township professionals, Essex County, or any outside agency. The Township agrees to use reasonable efforts to assist Developer in its undertakings to obtain required approvals for the parking, traffic, access, and off-site improvements described in this Section. If Developer requests the Township's assistance regarding any required approvals, such assistance will be provided by the Township at Developer's expense, and any municipal consents or approvals required for such improvements shall not be unreasonably withheld, conditioned, or delayed where the Township has authority to issue same and where issuance is consistent with applicable law. No temporary certificate of occupancy, certificate of occupancy, rental certificate, or other occupancy authorization shall be issued until all required parking, traffic, access, utility, stormwater, safety, and off-site improvements have been completed, bonded, inspected, or otherwise addressed to the satisfaction of the Township and any outside agency

rking, traffic, access, utility, stormwater, safety, and off-site improvements have been completed, bonded, inspected, or otherwise addressed to the satisfaction of the Township and any outside agency having jurisdiction, to the extent permitted by law. ARTICLE III - TOWNSHIP OBLIGATIONS 12

3.1 Obligation to Include Property in Fourth Round HEFSP The Township acknowledges that, subject to the terms of this Agreement, Court approval to the extent required, and Developer’s full and timely performance of its obligations, the Property and Inclusionary Project shall be included in the Township’s Fourth Round Housing Element and Fair Share Plan and related implementing measures for the provision of the Affordable Units and satisfaction of any applicable fractional obligation as set forth herein. The Township’s inclusion of the Property and Inclusionary Project in its Fourth Round HEFSP is expressly conditioned upon Developer’s compliance with this Agreement, UHAC, the Ordinance, all applicable approvals, and all applicable laws, including but not limited to the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. 3.2 Obligation to Rezone or Adopt Implementing Ordinance for the Project The Township acknowledges and agrees that the zoning ordinance necessary to permit as-of-right development of the Inclusionary Project on the Property in accordance with this Agreement shall be attached hereto as Exhibit B. Within thirty-five (35) days of the execution of this Agreement, the Township shall introduce the Rezoning Ordinance. Upon introduction of the Rezoning Ordinance, the Township shall refer the Rezoning Ordinance to the Planning Board for review and recommendation at the Planning Board’s next regularly scheduled meeting. At the next regularly scheduled Township Committee meeting after a recommendation has been made to the Township by the Planning Board regarding the Rezoning Ordinance, or after the expiration of the thirty-five (35) day referral period, whichever is earlier, the Township will vote on the approval of the Rezoning Ordinance. The Township shall take all necessary steps to promptly adopt the Ordinance attached hereto as Exhibit B, including adoption on second reading, and in compliance with all procedural requirements set forth in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. Nothing herein shall be construed to require the Township, the Governing Body, the Planning Board, or any Township official to act contrary to applicable law or any order of the

-1 et seq. Nothing herein shall be construed to require the Township, the Governing Body, the Planning Board, or any Township official to act contrary to applicable law or any order of the Court. 3.3 Obligation to Cooperate The Township acknowledges that, in order for Developer to construct its Inclusionary Project, it will be required to obtain any and all necessary and applicable agreements, approvals, and permits from all relevant public entities and utilities, including, but not limited to: the Township, the Township's Planning Board, Essex County, the Essex County Planning Board, the New Jersey Department of Environmental Protection, the New Jersey Department of Transportation, the applicable soil conservation district, and utility providers, including those approvals set forth in the Township's ordinances and requirements imposed by the Township's land use boards. The Township agrees to use all reasonable efforts to assist Developer in its undertakings to obtain the required approvals. If Developer requests the Township's assistance regarding any required approvals, such assistance will be provided by the Township at Developer's expense. The Township recognizes that the unit count could be reduced as a result of Developer securing any and all necessary and applicable agreements, approvals, and permits. If the Project contains more 13

than ten (10) residential units, Developer will be required to provide twenty percent (20%) of the actual residential units constructed as Affordable Units, subject to the fractional obligation provisions of Section 2.3. 3.4 Obligation to Refrain from Imposing Cost Generative Requirements The Township agrees that the Township will not impose standards and/or requirements that have not been agreed to by the Parties and would otherwise be considered cost generative, to the extent that Developer maintains the Affordable Units, which are specifically considered to be creditworthy under the Mount Laurel doctrine, entitling the Project to such protections. Therefore, the Township will not impose unnecessary cost-generative features/requirements pursuant to N.J.S.A. 52:27D- 304(v). 3.5 Obligation with Regard to Utilities The Township agrees to take all actions within its municipal authority, and to cooperate with all applicable utilities and agencies, to provide for and facilitate all utility connections and related off- site improvements required for the Inclusionary Project, including, without limitation, water, sanitary sewer, stormwater/drainage, electric, gas, and telecommunications, and shall issue all reasonable municipal consents and approvals necessary to do so, provided such consents and approvals are consistent with applicable law. Developer shall be responsible, at its sole cost and expense, for all required design, permitting, construction, installation, fees, and restoration associated with such connections, including securing any required third-party easements, unless the Parties expressly agree otherwise in writing. 3.6 Capacity Representation The Township represents that as of the Effective Date, and based solely on information reasonably available to the Township, the Township is not aware of a formal sanitary, sewer, or water moratorium / scare resource order presently applicable to the Property. ARTICLE IV – TOWNSHIP PLANNING BOARD (PLANNING BOARD) OBLIGATION 4.1 Obligation to Participate in Zoning Ordinance Approval with Reasonable Diligence After the introduction of the Rezoning Ordinance and the referral from the Township to

.1 Obligation to Participate in Zoning Ordinance Approval with Reasonable Diligence After the introduction of the Rezoning Ordinance and the referral from the Township to the Board referenced in Section 3.2, at the next regularly scheduled Board meeting, the Board shall make its recommendation to the Township. 4.2 Obligation to Process Developer’s Development Application with Reasonable Diligence The Planning Board shall diligently process Developer's development applications following 14

passage of the necessary zoning ordinance set forth herein, and within the time limits imposed by the Municipal Land Use Law. The Board shall expedite the processing of 410 Main’s development application in accordance with N.J.A.C. 5:93-10.1(a), adoption of the Rezoning Ordinance and within the time limits imposed by the MLUL. If necessary, the Board shall cooperate in scheduling special meetings to expedite the application to ensure that the Board acts on the development application within the time provisions set forth in the MLUL. 4.3 Right to Seek Approval of Variances, Waivers, or De Minimis Exceptions The Planning Board recognizes that the zoning ordinance approval and this Agreement contemplate development of the Inclusionary Project, which is an "inclusionary development" within the meaning of the Mount Laurel doctrine, and Developer shall be entitled to any benefits, protections, and obligations afforded to developers of inclusionary developments. Nothing shall prevent Developer from applying for a waiver or bulk variance from any standard imposed by the Ordinance and/or the Township's land use and development ordinance, as applicable, and the standards set forth in the Municipal Land Use Law, the Fourth Round affordable housing regulations, or in this Agreement, or as otherwise established by law, as applicable, shall determine if Developer is entitled to this relief or from seeking a waiver or de minimis exception to any standard or requirement of the Residential Site Improvement Standards under the applicable regulations. Notwithstanding the above, the Planning Board is under no contractual obligation to grant or approve any request for a variance, waiver, or de minimis exception; however, the Township shall take all lawful and necessary steps to work with the Developer and the Planning Board to address any concerns so as to result in the terms of this Settlement Agreement being effectuated, as set forth in Section 5.2 herein. 4.4 Obligation to Cooperate The Board acknowledges that, in order for Developer to construct its Inclusionary Project, it will be required to obtain any and all necessary and applicable agreements, approvals, and permits from all relevant public entities

for Developer to construct its Inclusionary Project, it will be required to obtain any and all necessary and applicable agreements, approvals, and permits from all relevant public entities and utilities, including, but not limited to: the Township, the Township's Planning Board, Essex County, the Essex County Planning Board, the New Jersey Department of Environmental Protection, the New Jersey Department of Transportation, the applicable soil conservation district, and utility providers, including those approvals set forth in the Township's ordinances and requirements imposed by the Township's land use boards. The Board agrees to use all reasonable efforts to assist Developer in its undertakings to obtain the required approvals. If Developer requests the Township's assistance regarding any required approvals, such assistance will be provided by the Township at Developer's expense. 4.5 Obligation to Refrain from Imposing Cost Generative Requirements The Board agrees that the Board will not impose standards and/or requirements that have not been agreed to by the Parties and would otherwise be considered cost generative, to the extent that Developer maintains the Affordable Units, which are specifically considered to be creditworthy under the Mount Laurel doctrine, entitling the Project to such protections. Therefore, the Board will not impose unnecessary cost-generative features/requirements pursuant to N.J.S.A. 52:27D-304(v). 15

ARTICLE V- MUTUAL OBLIGATIONS 5.1 Obligation to Comply with State Regulations The Parties shall comply with any and all federal, state, county, and local laws, rules, regulations, statutes, ordinances, permits, resolutions, judgments, orders, decrees, directives, interpretations, standards, licenses, approvals, and similarly binding authority applicable to the Inclusionary Project, the Affordable Units, the Property, or the performance by the Parties of their respective obligations or the exercise by the Parties of their respective rights in connection with this Agreement. 5.2 Mutual Good Faith, Cooperation, and Assistance The Parties shall exercise good faith, cooperate, and assist each other in fulfilling the intent and purpose of this Agreement, including, but not limited to, the Required Approvals, the development of the Property consistent with the terms hereof, and the defense of any challenge with regard to any of the foregoing. 5.3 Notices Any notice or transmittal of any document required, permitted, or appropriate hereunder and/or any transmittal between the Parties relating to the Property or this Agreement (“Notice[s]”) shall be written and shall be served upon the respective Parties by certified mail, return receipt requested, or recognized overnight or personal carrier, with certified proof of receipt, and by email where an email address is provided below. TO DEVELOPER: 410 Main Street Holdings, LLC Attn: Shaul Moshe Sugar 6 Emma Lane Jackson, New Jersey 08527 With a copy to: Prime Tuvel & Miceli, LLC Attn: Benjamin T.F. Wine, Esq. Attn: Danielle Novak Kinback, Esq. 1 University Plaza Drive, Suite 500 Hackensack, New Jersey 07601 Email: ben@primelaw.com Email: