Purchase and Sale Agreement By and Between The Township of Bloomfield and 192 Bloomfield, LLC For the Subdivided Portion of the Project Site Designated As Block 63, Lot 77 THIS PURCHASE AND SALE AGREEMENT (the PSA ), entered into this day of March 2013 between the Township of Bloomfield (hereinafter referred to as the Township ), having its offices at 1 Municipal Plaza, Township of Bloomfield, County of Essex, State of New Jersey 07003, and 192 Bloomfield, LLC, with offices at 525 River Road, Edgewater, New Jersey 07020 (hereinafter referred to as the Entity ). WITNESSETH: WHEREAS, pursuant to the Local Redevelopment and Housing Law, the Township Mayor and Council, by way of Resolution approved in 2001 and later re-evaluated and reaffirmed on August 10, 2009, designated the entire Township as an area in need of rehabilitation ; and WHEREAS, by way of ordinance approved on August 13, 2012, the Township Mayor and Council adopted a redevelopment plan for certain properties within the Township (the Redevelopment Plan Area ), entitled the Hartz Mountain Site Redevelopment Plan (as the same may be amended and supplemented, the Redevelopment Plan ) pursuant to the Local Redevelopment and Housing Law. A copy of the Redevelopment Plan as constituted on the above date of this PSA, has been filed in the Office of the Township Clerk, located at 1 Municipal Plaza, Township of Bloomfield, County of Essex, State of New Jersey 07003; and WHEREAS, the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1, et seq. ( LRHL ) authorizes the Township to arrange or contract with an entity for the planning, construction or undertaking of any project or redevelopment work in an area designated as an area in need of redevelopment or rehabilitation; and WHEREAS, pursuant to the LRHL and Section 8.2, page 65 of the Redevelopment Plan and by way of resolution approved on October 15, 2012, the Township Mayor and Council authorized the designation of the Entity as the Entity of Block 64, Lots 1 and 4 and Block 63, Lot 77 (the Project Site ), as designated on the official Tax Maps of the Township of Bloomfield and as identified further in Schedule A annexed hereto, which parcels are located within the Redevelopment Plan Area and subject to the Redevelopment Plan; and WHEREAS, the Project Site is currently owned by The Hartz Mountain Corporation and the Entity is the contract purchaser thereof; and WHEREAS, as the Entity of the Project Site, and as provided for within the redevelopment agreement as described below (the RA ), the Entity will implement the development, design, financing and construction of the Project Site in accordance with the Redevelopment Plan comprised of both residential (approximately 315 units) and retail 1
(approximately 38,500 sf) development as set forth on the concept plan annexed hereto as Schedule B (the Project ); and WHEREAS, the Township Mayor and Council have determined that the Project will meet an existing need of the Township and is consistent with the Redevelopment Plan and the provisions of this PSA as required by the Redevelopment Plan; and WHEREAS, the Township and the Entity have engaged in such negotiations and the Township has determined that in furtherance of the Township s resolution and objectives to implement the intent and purposes of the Redevelopment Plan, it is in the Township s best interests to enter into the RA with the Entity for the development and construction of the Project; and WHEREAS, the Township Mayor and Council approved a resolution on, 2013 authorizing the execution of the RA with the Entity for the development of the Project on the Project Site; and WHEREAS, the Subdivided Parcel, a portion of Block 63, Lot 77, is currently owned by the Entity and will be created by the Entity in accordance with the terms herein; and WHEREAS, Article II, Section 2.01 of the RA provides that the Township shall purchase the Subdivided Parcel (as defined below) from the Entity in accordance with the terms and provisions of the PSA executed by the Township and the Entity; and WHEREAS, the LRHL, specifically N.J.S.A. 40A:12A-22(i), permits a municipality to acquire or contract to acquire real property by contribution, gift or otherwise and this PSA is executed and shall be effectuated in accordance therewith; and WHEREAS, the provisions of the PSA shall include, but not be limited to, the following: (i) Environmental and Geotechnical Due Diligence, if any; (ii) the acceptance of the Subdivided Parcel by the Township in condition suitable for use by the Township without any environmental restraints whatsoever, and without representations by the Entity; (iii) the delivery of a Deed that complies with the requirements of the PSA; (iv) the delivery of an Affidavit of Title by the Entity; (v) the delivery of any additional and reasonable information that may be required by the Title Insurer; and (vi) the completion by the Entity of any and all action and payment of any and all costs required to create the Subdivided Parcel, including, but not limited to, the filing and/or recording of a subdivision application and/or plat and the preparation and delivery of any surveys requested by the Township; and WHEREAS, the Township and the Entity desire to enter into this PSA for the purpose of setting forth in greater detail their respective undertaking, rights and obligations in connection with the transfer of title to the Subdivided Parcel, all in accordance with the Plan, applicable law, and terms and conditions of this PSA hereinafter set forth. 2
NOW THEREFORE, in consideration of the promises and the mutual obligations and responsibilities of the parties hereto, each of them does herby covenant and agree with the other as follows: ARTICLE I DEFINED TERMS The parties agree that unless the context otherwise specifies or requires the following terms shall have the meanings specified below, such definitions to be applicable equally to the singular and plural forms of such terms: Entity: The party defined in the recitals, to wit, 192 Bloomfield, LLC. Impositions: All taxes, assessments, (including without limitation all assessments for public improvements or benefits) water, sewer or other rents, rates and charges, license fees, permit fees, inspection and other authorization fees and charges in each case whether general or special, which are levied upon any of the Property conveyed to the Entity or on any of the Improvements constructed thereon. Insurance: All terms of any insurance policy considered in the Township s reasonable opinion to be standard of the insurance industry covering or applicable to all or any part of any property which is subject to this PSA or conveyed to Entity hereunder or applicable to any improvements constructed thereon, or with respect to any portion of the property entered upon by the Entity pursuant to any developer s easement, right of entry, or other permission granted by the Township; all requirements of the issuer of any such policy, and all orders, rules, regulations and other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) applicable to or affecting all or any portion of any property conveyed by Deed or the subject of entry rights granted to Entity, the improvements thereon or the use or condition thereof. Local Redevelopment and Housing Law: N.J.S.A. 40A:12A-1 et seq., and as same may be amended from time to time. Project: As defined in the aforementioned WHEREAS clauses. Project Site: As defined in the aforementioned WHEREAS clauses. Redevelopment Plan: The Hartz Mountain Redevelopment Plan Area approved on August 10, 2009. Also referred to as the PRP. Subdivided Parcel: The portion of Block 63, Lot 77 to be subdivided and created for sale to the Township in accordance with the terms of the PSA. 3
Township: The Township of Bloomfield. Transfer: Any transaction by which a transferee (defined below) obtains an interest in the Subdivided Parcel, or this PSA by means or methods which include but are not limited to, conveyance, transfer, lease, encumbrance, acquisition or assignment through sale, merger, consolidation, re-organization, foreclosure or otherwise, including the appointment of a trustee in bankruptcy or assignee for the benefit of creditors. ARTICLE II ENTITY S RESPONSIBILITIES 2.1 Transfer. In consideration of the covenants and agreements herein contained and to be performed by the parties, the Entity agrees to convey the Subdivided Parcel, subject to the terms and conditions of the PSA. 2.2 Expenses to be Paid by Entity. The Entity shall be the below costs associated with the creation and transfer of the Subdivided Parcel. If costs are incurred by the Township, the Entity will be responsible for reimbursement thereof. 2.2.1 All title search and related costs, including costs associated with correcting or eliminating any objections to title requested by the Township. 2.2.2 Survey costs. 2.2.3 Legal and other professional fees. 2.2.4 Recording fees and court costs. 2.2.5 The Entity shall not be responsible for the reimbursement of any time or man-hours devoted to this project by Township staff. 2.3 Approvals. The Entity shall be responsible for all action, filing fees, professional costs and usual and customary expenses related to completion of the applications, approvals and filings required to create and transfer the Subdivided Parcel to the Township. The Entity shall obtain all applications, approvals, and filings, including the filing of the subdivision application within 120 calendar days from the date of the execution of the PSA. 2.4 Report on Progress. The Entity shall make, in such detail and at such times as may be reasonably required by the Township, a report in writing concerning the actual progress of the Entity with respect to the creation and transfer of the Subdivided Parcel. The approvals of the Entity shall be subject to inspection by the Township. It is anticipated that the Entity will file for subdivision and creation of the Subdivided Parcel simultaneously with the filing of the site plan 4
and that the transfer of the Subdivided Parcel to the Township will occur simultaneously with the transfer of the property to the Entity. 2.5 Insurance. In the event that the Subdivided Parcel is not simultaneously transferred to the Township as anticipated and set forth in Section 2.4 above, the Entity agrees that at all times until the completion of transfer of title to the Subdivided Parcel, the Entity shall maintain, at its own cost and expense the following insurance: 2.5.1 Comprehensive General Liability Insurance against claims for bodily injury, death or property damage occurring on, in or about the project premises and adjoining streets and sidewalks, in an amount not less than $1,000,000. 2.5.2 Such other insurance, in such amounts and against such risks, as is customarily maintained by Entity with respect of other similar properties owned or leased by it. The Entity shall submit proof of insurance at any time if and as requested by the Township. 2.6 Indemnification. In the event that the Subdivided Parcel is not simultaneously transferred to the Township as anticipated and set forth in Section 2.4 above, the Entity agrees to indemnify and hold harmless the Township, and Entity shall pay any and all liability, loss, cost, damage, claims, judgments or expenses, of any and all kinds or nature and however arising, imposed by law, which the Township may sustain, be subject to or be caused to incur by reason of any claim, suit or action based upon personal injury, death, or damage to property, whether real, personal or mixed, relating to the Entity s activities based upon or arising out of the creation and transfer of the Subdivided Parcel and any contracts entered into by the Entity relative thereto, including but not limited to any and all claims by workmen, employees, and agents of the Township and unrelated third parties. It is mutually agreed by the Entity and the Township that neither the Township nor its directors, officers, agents, servants, or employees shall be liable in any event for any action performed under this PSA and that the Entity shall hold the Township, its directors, officers, agents, and employees harmless from any claim or suit in connection with the Entity s obligation under the PSA. The Entity, at its own cost and expense, shall defend any and all such claims, suits and actions, as described in the PSA. This provision shall not be deemed to relieve any insurance company that has issued a policy of insurance as may be provided for in this PSA from its obligation to defend Entity, the Township and other insured named in such policy. Any cost for reasonable attorneys fees in situations where it is necessary for the Township to engage its owns attorneys, experts testimony, costs and all costs to defend the Township or any its directors, officer, agents, servants, or employees shall be reimbursed to it by the Entity in connection with such indemnification claim. 5
ARTICLE III CONVEYANCE OF PROPERTY 3.1 Deed and Other Closing Documents. Fee simple title to the Subdivided Parcel shall be conveyed to the Township at the closing by quit claim deed without any environmental restraints whatsoever, and without representations by the Entity (the Deed ). The Deed shall be in substantially the same format as the draft deed annexed here as Schedule C. The following additional closing items shall also be provided by the Entity: (i) an Affidavit of Title; and (ii) any additional and reasonable information that may be required by the Title Insurer. 3.2 Impositions. The Entity shall be responsible for all Impositions assessed to the Subdivided Parcel up to and including the Closing Date, as defined herein below. 3.3 Recording of Documents. The Entity shall be responsible for recording the deed, subdivision map, and any and all other closing and subdivision documents that may be reasonably required by the Township and/or its title company/insurer at its sole cost and expense. 3.4 Survey. The Subdivided Parcel shall be conveyed by a Deed and metes and bounds description derived from a boundary and topographic Survey to be obtained by the Entity as part of the entity s application for the subdivision and site plan approval pursuant to the Redevelopment Agreement and in sufficient time to comply with the time period required by Section 2.2 above. It is anticipated that the Survey will depict the lines of the Subdivided Parcel being conveyed to the Township and the existing grades, easements and utilities in and of the Subdivided Parcel to be conveyed and in and of the streets surrounding same. The Survey and the legal descriptions prepared therefrom shall be endorsed by the Title Insurer and certified by the surveyor to the Title Insurer, the Township, the Entity and the respective counsel for each party to this PSA. Two (2) original, signed and sealed boundary surveys shall be provided to the Township upon completion. 3.5 Timing of Conveyance. The parties intend that the conveyance of the Subdivided Parcel by the Entity shall coincide with the Closing of the parcels to Entity as defined in the Redevelopment Agreement. The parties acknowledge that despite the execution of this PSA, the Township shall be under no obligation to accept the Subdivided Parcel upon presentation by the Entity and that the Township may terminate this PSA for any or no reason in its sole and absolute discretion, including, but not limited to title issues associated with the Subdivided Parcel and/or reasons associated with the Township s independent investigation thereof. Notwithstanding, the parties agree that the Entity shall give the Township thirty (30) days notice of its intent to close on the property with its seller and transfer the Subdivided Parcel to the Township. Upon receipt of the notice, the Township agrees to notify the Entity as 6
quickly as possible of its intent to accept or reject the transfer of title to the Subdivided Parcel. 3.6 Provisions Not Merged with Deed(s). The Township and the Entity acknowledge and agree that none of the provisions of this PSA are intended to or shall be merged by reason of the Deed transferring title to the Subdivided Parcel from the Entity to the Township or any successor in interest, and any such Deed shall not be deemed to affect or impair the provisions and/or Covenants and Restrictions contained in this PSA, except insofar as the PSA pertains to the Subdivided Parcel. 3.7 Recordation of Documents. Upon the closing of title to the Subdivided Parcel, the Entity shall record the Deed and any other related documents as reasonably required by the Township and/or the Title Insurer for recordation among the land records of the County of Essex, State of New Jersey. The Entity shall pay all costs of such recordation and shall supply evidence of such recordation to the Township. 3.8 Cooperation. The Township shall fully cooperate, as necessary and permitted, in the preparation and prosecution of any Governmental Applications for Governmental Approvals required for the Project and the creation of the Subdivided Parcel. Such cooperation shall include the scheduling of any special meetings of the Planning Board (said requests resting within the sole discretion of the Planning Board) as may be reasonably requested by the Entity, as well as the prompt and reasonable review of the subdivision plat by the Township s professionals. ARTICLE IV MISCELLANEOUS PROVISIONS 4.1 Prohibition Against Transfer. The Entity is prohibited from transferring the Subdivided Parcel or any portion thereof upon execution of this PSA to any entity other than the Township. 4.2 Force Majeure. It is agreed that the deadlines stated herein may be extended upon the sole written consent of the Township, in its sole discretion and it shall be extended if completion of the subdivision as required herein is prevented by an event of force majeure, in which case any unexpired deadline shall be extended or the period of the enforced delay, as reasonably determined by the Township provided that the Entity seeking the benefit of this provision on force majeure shall, within ten (10) days after the beginning of any such enforced delay, have notified the Township in writing, of the cause or causes thereof, and has requested an extension from the period of the enforced delay. Compliance with municipal laws regulating land use and construction, any legal requirements, under any applicable environmental laws, as well as known NJDEP clearances, approvals, or permits, typical of the development process and referred to in this PSA, shall not be considered or construed as events of force majeure. 7
4.3 Successors and Assigns. This PSA shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties hereto, and their heirs, executors and administrators. 4.4 Modification of PSA. No modification, waiver, amendment, discharge or change of this PSA shall be valid unless the same is in writing duly authorized, and signed by the parties against which the enforcement of such modification, waiver, amendment, discharge or change is or may be sought. 4.5 Recitals Incorporated; Definitions Incorporated. The Recitals to this PSA and the Definitions contained within this PSA are hereby incorporated by reference into this PSA, as if set forth at length herein. 4.6 Titles of Articles and Sections/Headings. Any titles of the several Parts and Sections of the PSA are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. The Section headings contained in this PSA are inserted for reference purposes only and shall given no weight in the construction of this PSA. None of the headings or titles of Articles and Sections are intended to limit or define the contents of the Sections and Articles. 4.7 Counterparts. This PSA may be executed in several counterparts, each of which shall constitute one and the same instrument. 4.8 Severability. If any provision of this PSA shall be determined to be invalid or unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions of this PSA, all of which shall remain in full force and effect. 4.9 Governing Law. This PSA shall be governed by and construed in accordance with the applicable laws of the State of New Jersey and the parties hereby submit to the jurisdiction of the Superior Court of New Jersey, Essex County. 4.10 Entire Agreement. The PSA and the Redevelopment Agreement shall constitute the entire agreement and understanding of the Township and the Entity with respect to the Subdivided Parcel and may not be modified or amended except by a written agreement specifically referring to the PSA and/or the Redevelopment Agreement signed by both the Township and the Entity. ARTICLE V DEFAULT 5.1 Events of Default. Prior to the completion of the subdivision, the following shall constitute an event of default. 5.1.1 Failure to create the Subdivided Parcel within the time specified herein. 8
5.1.2 Failure to complete any other action required by this PSA within the time period(s) specified herein, unless specifically extended or otherwise agreed upon in writing by the parties. 5.2 Remedy Upon Default. The Township shall notify the Entity in writing of any default. The Entity shall have 30 days to remedy the default. If the default is not remedied within the 30 days the Township may take legal action for specific performance relative thereto. 5.3 No Waiver of Rights and Remedies by Delay. Any delay by the aggrieved party in instituting or prosecuting any actions or proceedings or otherwise asserting its rights under this PSA shall not operate as a waiver of such rights or shall not deprive the aggrieved party of or limit the aggrieved party s rights in any way (it being the intent of this provision that the aggrieved party should not be constrained [so as to avoid the risk of being deprived or limited in the exercise of the remedies provided herein by those concepts of waiver, laches, or otherwise] to exercise such rights at a time when the aggrieved party may still hope otherwise to resolve the problems created by the default involved); nor shall any waiver in fact made by the aggrieved party with respect to any specific Event of Default by the Entity under this PSA be considered or treated as a waiver of the rights of the aggrieved party with respect to any other Events of Defaults by the other party under this PSA or with respect to the particular Event of Default except to the extent specifically waived in writing. 5.4 Rights and Remedies Cumulative. The rights and remedies of the parties to the PSA, whether provided by law or by this PSA, shall be cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or breach or of any of its remedies for any other default or breach by the other party. No waiver made by either such party with respect to the performance, or manner or time thereof, or any obligation of the other party or any condition to its own obligation under this PSA shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligation of the other party or condition to its own obligation beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or any other obligations of the other party. ARTICLE VI REPRESENTATIONS 6.1 Representations of the Entity. The Entity acknowledges and represents to the Township that it has disclosed all pertinent knowledge and information in its possession to the Township with regard to the value, use, conditions, quality or fitness for use or purpose of the Subdivided Parcel, including but not limited to provision to 9
the Township of all environmental reports, studies and investigations received or conducted by the Entity. The Entity represents and warrants to the Township that this PSA has been duly authorized, executed and delivered by the Entity and, on the Effective Date will constitute a legal, valid and binding obligation of the Entity enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditor's rights generally and subject to the availability of equitable remedies; and the execution and delivery of this PSA by the Entity and consummation of the transactions contemplated hereby does not violate, conflict with or constitute a default under the provisions of any agreement, understanding or arrangement to which the Entity is a party or by which it is bound or the certificate of incorporation, by-laws, certificate of formation, operating agreement or partnership agreement of the Entity, or any statute, rule, regulation, ordinance, order or decree in force as of the date hereof. The Entity represents and warrants that it has obtained or will obtain all necessary licenses, certifications and further that it will be qualified to do business in New Jersey on or after the Effective Date. 6.2 Representation of the Township: The Township represents and warrants to the Entity that the Township it is aware of its right to undertake its own independent investigation of the Subdivided Parcel at any time prior to the transfer of title of the Subdivided Parcel from the Entity to the Township, including but not limited to the environmental or geotechnical conditions thereof. The Township acknowledges that the Entity shall not be responsible for any remediation of the Subdivided Parcel, unless otherwise specifically agreed to in writing by the parties as an amendment to this PSA. The Township represents and warrants to The Entity that this PSA has been duly authorized by virtue of a certain resolution or ordinance, executed and delivered by the Township and, on the Effective Date, will constitute a legal, valid and binding obligation of the Township enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights and subject to the availability of equitable remedies; and the execution and delivery of this PSA by the Township and consummation of the transactions contemplated hereby does not violate, conflict with or constitute a default under the provisions of any agreement, understanding or arrangement to which the Township is a party or by which it is bound or any statute, rule, regulation, ordinance, order or decree in force as of the date hereof. ARTICLE VII NOTICES AND DEMANDS 7.1 Manner of Notice. A written notice, demand, or other communication required under this PSA by either party to the other shall be delivered by personal service, by national overnight courier, electronically or by facsimile provided that any electronic 10
or facsimile service be immediately followed by overnight courier at the addresses listed below for each party. Service shall be deemed to be upon receipt. (a) In case of the Entity: 192 Bloomfield, LLC c/o Len Peres 525 River Rd. Edgewater, NJ 07020 With a copy to: Paul Kaufman, Esq. Kaufman, Semeraro, Bern, Deutsch & Leibman, LLP Two Executive Drive, Suite 530 Fort Lee, NJ 07024 (b) In the case of the Township: Bloomfield Municipal Building 1 Municipal Plaza Bloomfield, New Jersey 07003 Attn: Glenn Domenick, Director of Community Development With a copy to: Scarinci Hollenbeck 1100 Valley Brook Avenue Lyndhurst, NJ 07071 Attn: Kara A. Kaczynski, Esq. (c) At such other addresses as either party hereto may, from time to time, designate in writing and mail to the other as provided herein. IN WITNESS WHEREOF, the Township of Bloomfield has caused this PSA to be duly executed, and the Entity has caused this PSA to be duly executed in its name and behalf by its sole member, on or as of the day first above written. ATTEST: TOWNSHIP OF BLOOMFIELD, A body corporate and politic of the State of New Jersey By: By: Mayor Raymond McCarthy 192 BLOOMFIELD, LLC, 11
ATTEST: A limited liability company By: By: Len Peres, Managing Member STATE OF NEW JERSEY ) ) SS: COUNTY OF ) BE IT REMEMBERED, that on, 2013 before me, the subscriber, a Notary Public of the State of New Jersey, personally appeared Raymond McCarthy, who being by me duly sworn on his oath, deposes and makes proof to my satisfaction, that he is the Mayor of the Township of Bloomfield, and that the execution, as well as the making of this instrument, has been duly authorized by a proper resolution of the Township of Bloomfield of the Board of Commissioners. Sworn and subscribed to Before me this day of, 2013 Raymond McCarthy, Mayor Notary Public 12
STATE OF NEW JERSEY ) ) SS: COUNTY OF ) BE IT REMEMBERED, that on, 2013 before me, the subscriber, a Notary Public of the State of New Jersey, personally appeared Len Peres, who being by me duly sworn on his oath, deposes and makes proof to my satisfaction, that he is the Managing Member of 192 Bloomfield, LLC, and that the execution, as well as the making of this instrument, has been duly authorized by a proper resolution of the of 192 Bloomfield, LLC. Sworn and subscribed to Before me this day of, 2013 Len Peres, Managing Member Notary Public 13
SCHEDULE A 14