238-26 - 410 Main Settlement.pdf

Hackensack, New Jersey 07601 Email: ben@primelaw.com Email: dkinback@primelaw.com and 16

TO THE TOWNSHIP: Township of West Orange Attn: Township Clerk 66 Main Street West Orange, New Jersey 07052 Email: clerk@westorange.org With a copy to: Semeraro & Fahrney, LLC Attn: Mark J. Semeraro, Esq. 155 Route 46, Suite 108 Wayne, New Jersey 07470 Email: msemeraro@semerarolaw.com TO THE BOARD: [INSERT] In the event any of the individuals identified above has a successor, the individual identified shall name the successor and notify all others identified of their successor. ARTICLE VI - MISCELLANEOUS 6.1 Severability Unless otherwise specified, it is intended that the provisions of this Agreement are to be severable. The validity of any article, section, clause, or provision of this Agreement shall not affect the validity of the remaining articles, sections, clauses, or provisions hereof. If any section of this Agreement shall be adjudged by a court to be invalid, illegal, or unenforceable in any respect, such determination shall not affect the remaining sections. 6.2 No Modification This Agreement may not be modified, altered, amended, supplemented, or waived in any way except by a writing signed by each of the Parties. 6.3 Counterparts This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute but one and the same Agreement. 6.4 Voluntary Agreement The Parties acknowledge that each has entered into this Agreement on its own volition without coercion or duress after consulting with their counsel, that each party is the proper person and possesses the authority to sign the Agreement, that this Agreement contains the entire understanding of the Parties, and that there are no

counsel, that each party is the proper person and possesses the authority to sign the Agreement, that this Agreement contains the entire understanding of the Parties, and that there are no representations, warranties, covenants, or undertakings other than those expressly set forth herein. 17

6.5 Interpretation In the event of any subsequent dispute or ambiguity involving the interpretation of this Agreement, inasmuch as the Parties and their attorneys have had input into the terms and conditions contained herein, this Agreement shall not be interpreted against the Township, the Planning Board, or any Party by reason of drafting. 6.6 Assignment Developer may assign this Agreement with advance notice to the Township, provided, however, that any assignment shall require that the assignee expressly assume in writing Developer's obligations under Article II and all other obligations applicable to the Property and Inclusionary Project, and such assignment shall not relieve the assigning Developer/property owner of its obligations for acts or omissions occurring prior to the effective date of the assignment unless the Township expressly agrees in writing. 6.7 Schedules Any and all Exhibits and Schedules annexed to this Agreement are hereby made a part of this Agreement by this reference thereto. The only exhibits to this Agreement are Exhibit A and Exhibit B unless the Parties amend this Agreement in writing. 6.8 Entire Agreement This Agreement constitutes the entire Agreement between the Parties relating to the subject matter hereof, and supersedes all prior negotiations, discussions, representations, and understandings, whether written or oral, except to the extent expressly incorporated herein. 6.9 Effective Date Anything herein contained to the contrary notwithstanding, the effective date of this Agreement shall be the date upon which all Parties execute the same in accordance with the proper legal processes designated by law and the court approves this Agreement or a similar agreement (“Effective Date”). 6.10 Captions The captions and section headings in this Agreement are for convenience only and shall not be used to interpret, expand, or limit the terms of this Agreement. 6.11 Waiver The Parties agree that this Agreement is enforceable. Each of the Parties waives all rights to challenge the validity or the ability to enforce this Agreement. Failure to enforce

Waiver The Parties agree that this Agreement is enforceable. Each of the Parties waives all rights to challenge the validity or the ability to enforce this Agreement. Failure to enforce any of the provisions of this Agreement by any of the Parties shall not be construed as a waiver of these or other provisions. 18

6.12 Notice of Actions The Parties and their respective counsel agree immediately to provide each other with notice of any lawsuits, actions, applications, proceedings, appeals, or governmental declarations threatened or pending by third parties of which they are actually aware, which may affect the provisions of this Agreement. 6.13 Governing Law; Jurisdiction; Venue This Agreement has been entered into and shall be construed, governed, and enforced in accordance with the laws of the State of New Jersey without giving effect to provisions relating to conflicts of law. Jurisdiction of any litigation ensuing with regard to this Agreement exclusively shall be in the Superior Court of New Jersey, Essex County Vicinage, including Docket No. ESX-L-886-25 and any consolidated or related matters to the extent retained by the Court. Service of any complaint may be effectuated consistent with the terms hereof for the delivery of Notices. The Parties waive formal service of process. 6.14 Default In the event that either Party shall fail to perform any material obligation on its part to be performed pursuant to the terms and conditions of this Agreement, unless such obligation is waived by the other Party for whose benefit such obligation is intended, or by the Court, such failure to perform shall constitute a default under this Agreement. Upon the occurrence of any default, the nondefaulting Party shall provide notice to the defaulting Party, and the defaulting Party shall have a reasonable opportunity to cure the default within forty-five (45) days. In the event the defaulting Party fails to cure within forty-five (45) days or such reasonable period of time as may be appropriate, the Party for whose benefit such obligation is intended shall be entitled to exercise any and all rights and remedies that may be available in equity or under the laws of the State of New Jersey, including the right of specific performance to the extent available. Further, the Parties may apply to the Court for relief by way of motion to enforce litigants' rights. In the event of any default by Developer, Developer shall reimburse the Township for all reasonable attorneys’ fees,

o the Court for relief by way of motion to enforce litigants' rights. In the event of any default by Developer, Developer shall reimburse the Township for all reasonable attorneys’ fees, costs, and expenses incurred by the Township in enforcing this Agreement, including any application to enforce litigants’ rights. In the event the Township fails to adopt the aforementioned zoning ordinance, the Developer shall, in addition to the rights set forth in the preceding paragraph, have the right upon notice in accordance with this Agreement, to terminate this Agreement under which circumstance, the parties shall have all rights restored to the status quo ante to the date hereof and all claims and defenses available now shall be available to the parties. 6.15 Fairness Hearing The Parties acknowledge that this Settlement Agreement may be subject to approval by the Court following what is commonly known as a "fairness hearing" as set forth in Morris Cty. Fair Hous. Council v. Boonton Twp., 197 N.J. Super. 359, 367-69 (Law Div. 1984), aff'd o.b., 209 N.J. Super. 108 (App. Div. 1986), and East/West Venture v. Borough of Fort Lee, 286 N.J. Super. 311, 328-29 19

(App. Div. 1996). If this Settlement Agreement is not approved by the Court, then this Settlement 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 Settlement Agreement had not been executed by the Parties. The adoption of the Ordinance and/or submission, processing of or hearing on a development application shall not be required to await such fairness hearing unless the Court so orders. 6.16 Recitals The recitals set forth above are incorporated into and made part of this Agreement. [SIGNATURE PAGE FOLLOWS] 20

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be properly executed, their corporate seals affixed and attested and this AGREEMENT to be effective as of the Effective Date. TOWNSHIP OF WEST ORANGE WITNESS/ATTEST: By: _______________________________ By: _______________________________ Susan McCartney, Mayor Karen J. Carnevale, Township Clerk Date: Date: TOWNSHIP OF WEST ORANGE PLANNING BOARD WITNESS/ATTEST By: _______________________________ By: Date: Date: 410 MAIN STREET HOLDINGS, LLC By: _______________________________ [insert name and title of principal] Date: WITNESS/ATTEST: By: _______________________________ [insert name and title of witness] Date: 21

238-26 EXHIBIT A (CONCEPT PLAN)