N.J. Admin. Code § 19:31Z-1.9

Current through Register Vol. 56, No. 12, June 17, 2024

Section 19:31Z-1.9 - Redevelopment agreement

(a) Following satisfaction of the requirements for the execution of a redevelopment agreement in the approval letter, the Authority shall enter into a redevelopment agreement with the developer. The Chief Executive Officer of the Authority shall negotiate the terms and conditions of the redevelopment agreement on behalf of the State. The awarding of tax credits shall be conditioned on the developer's compliance with the Act, this subchapter, and the requirements of the redevelopment agreement.

(b) The developer, including all affiliates, shall not start any remediation or clean up at the site other than the activities disclosed and approved at the time of approval, except for work required due to an order or other written requirement from an official with jurisdiction over the site or the redevelopment project to correct an immediate environmental concern or a health, safety, or other hazard that requires the developer or an affiliate to undertake remediation activities, if:

1. The developer provides a copy of the order or written requirement to the Authority; and

2. The developer documents to the Authority's satisfaction that the proposed remediation activity is limited to resolve the hazard.

(c) The redevelopment agreement shall specify and include:

1. A detailed description of the proposed redevelopment project, including details, quantities, and extent of all redevelopment activities, remediation costs, total cost of remediation, and a schedule for the redevelopment project by redevelopment work items;

2. The maximum amount of the tax credit award, the maximum amount of total cost of remediation, and the maximum percentage of the remediation costs that will be used to calculate the amount of the tax credit award;

3. A description of the evidence that will be submitted as proof of completion of remediation as required for the redevelopment project:

i. Where the remediation is subject to the Site Remediation Reform Act, sections 1 through 29 at P.L. 2009, c. 60 (N.J.S.A. 58:10C-1 et seq.), evidence of completion of the remediation will be demonstrated in accordance with the statute by a Response Action Outcome issued by a Licensed Site Remediation Professional; and

ii. For any portion of the remediation that is not subject to the Site Remediation Reform Act, sections 1 through 29 at P.L. 2009, c. 60 (N.J.S.A. 58:10C-1 et seq.), evidence of completion of the remediation will be demonstrated by a certification from a Licensed Site Remediation Professional and an appropriate licensed or certified professional, as applicable;

4. A requirement that the developer will certify that all information provided by the developer or any affiliate to the Authority and the Department, including information contained in the application, the redevelopment agreement, and any amendment to the redevelopment agreement, is true, correct, and accurate pursuant to the penalty of perjury;

5. An ongoing requirement to provide the Authority and the Department with current personnel information that will enable the Authority and the Department to administer the program;

6. Representations that the developer and any affiliate will comply with the minimum environmental and sustainability standards pursuant to N.J.S.A. 34:1B-281c(1);

7. Representations that the developer is in substantial good standing and that the redevelopment project will comply with all applicable laws, including, but not limited to: prevailing wage requirements pursuant to P.L. 2007, c. 245 (N.J.S.A. 34:1B-5.1) and N.J.A.C. 19:31Z-1.14(b) and (c); affirmative action requirements pursuant to P.L. 1979, c. 303 (N.J.S.A. 34:1B-5.4) and N.J.A.C. 19:31Z-1.14(a); and environmental laws, including, but not limited to, the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13, to the extent that it is applicable;

8. A provision permitting an audit of the developer's and any affiliate's evidence and documentation supporting the certifications pursuant to N.J.A.C. 19:31Z-1.4 and 1.11 and this section, and the reports pursuant to N.J.A.C. 19:31Z-1.11, as the Authority deems necessary;

9. Reporting requirements pursuant to N.J.A.C. 19:31Z-1.11;

10. A provision permitting the Authority to amend the agreement;

11. A provision establishing the conditions pursuant to which the Authority, the developer, or both parties may terminate the agreement;

12. A provision acknowledging the Authority's right to confirm with the Department of Environmental Protection, the Department of Labor and Workforce Development, and the Department of the Treasury, as set forth at N.J.A.C. 19:31Z-1.6(d), that the developer is in substantial good standing or has entered into an agreement with the respective department that includes a practical corrective action plan, as applicable;

13. A provision providing that if the developer is not in substantial good standing with the Department of Environmental Protection, the Department of Labor and Workforce Development, or the Department of the Treasury and has not entered into an agreement with the respective department, as set forth at N.J.A.C. 19:31Z-1.6(d), and has been given written notice thereof and an opportunity to be heard or to contest the determination by the respective department, then the developer shall be subject to N.J.A.C. 19:31Z-1.15(b);

14. A requirement that the developer shall confirm that each contractor or subcontractor performing work at the redevelopment project: is registered as required by the Public Works Contractor Registration Act, P.L. 1999, c. 238 (N.J.S.A. 34:11-56.48 et seq.); has not been debarred by Department of Labor and Workforce Development from engaging in or bidding on Public Works Contracts in the State; and possesses a tax clearance certificate issued by the Division of Taxation in the Department of the Treasury;

15. A requirement for the developer to engage in on-site consultations with the Division of Workplace Safety and Health in the Department of Health;

16. The right of the Authority and the Department to conduct site inspections at the site of the redevelopment project at any time during the course of the redevelopment project;

17. Indemnification and insurance requirements from the developer;

18. A description of events that would trigger forfeiture, reduction, or recapture of the tax credits;

19. Conditions of default and remedies, including, but not limited to, a default if a developer made a material misrepresentation on its application or supporting documentation;

20. A provision stating that if the developer or any affiliate sells, leases, or subleases the site of the redevelopment project, or any portion thereof, within four years of completion of the redevelopment project, the Authority shall determine if the developer's rate of return exceeded the reasonable and appropriate rate of return determined at Board approval. The developer shall provide to the Authority any information that the Authority determines is necessary to re-evaluate the developer's rate of return, including, but not limited to, the purchase price. If the developer's final rate of return exceeds the reasonable and appropriate rate of return determined at Board approval by more than 15 percent, the developer shall pay 20 percent of the amount of the excess to the Authority, and the Authority shall deposit such funds in the State General Fund;

21. A provision that the issuance of a tax credit pursuant to the Program shall be conditioned upon the subrogation to the Department of all rights of the developer or any affiliate to recover remediation costs from any other person who discharges a hazardous substance or is in any way responsible, pursuant to section 8 at P.L. 1976, c. 141 (N.J.S.A. 58:10-23.11g), for a hazardous substance that was discharged at the brownfield site;

22. A provision requiring that the developer obtain consent from the Authority prior to any ownership change of the developer; and

23. A provision that the developer must either comply with their agreement with the Commissioner of the Department of Environmental Protection in accordance with the provisions of section 37 at P.L. 1997, c. 278 (N.J.S.A. 58:10B-29); or comply with the requirements set forth in subsection b. of section 30 at P.L. 2009, c. 60 (N.J.S.A. 58:10B-1.3) to the satisfaction of both the Authority and the Department for the remediation of the site of the redevelopment project.

(d) The Authority shall not enter into a redevelopment agreement for a redevelopment project that includes at least one retail establishment that will have more than 10 employees, or at least one distribution center that will have more than 20 employees, unless the redevelopment agreement includes a precondition that any business that serves as the owner or operator of the retail establishment or distribution center enters into a labor harmony agreement with a labor organization or cooperating labor organizations which represent retail or distribution center employees in the State. A labor harmony agreement shall be required only if the State has a proprietary interest in the redevelopment project and shall remain in effect for as long as the State acts as a market participant in the redevelopment project. The Authority may enter into a redevelopment agreement with a developer without the labor harmony agreement only if the Authority determines that the redevelopment project would not be feasible if a labor harmony agreement is required. The Authority shall support the determination by a written finding, which provides the specific basis for the determination.

(e) The redevelopment project shall be completed and the evidence required to obtain a certification of completion of remediation shall be provided to the Authority and the Department within six years from the time of Board approval of the application. The Authority may extend, in its sole discretion, the time of completion, provided that the developer submits evidence satisfactory to the Authority that the redevelopment project is continuing to progress to completion.

(f) The Authority may rescind an award of tax credits pursuant to the Program if a redevelopment project fails to advance in accordance with the redevelopment agreement.

N.J. Admin. Code § 19:31Z-1.9

Recodified from 19:31-27.9 56 N.J.R. 807(a), effective 5/6/2024