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STATE OF NEW JERSEYDEPARTMENT OF TRANSPORTATION

DREDGE MATERIAL MANAGEMENT AGREEMENT

THIS AGREEMENT, made this ____ day of _____________, 2018, between the Borough of Beach Haven (“Beach Haven”), whose address is 300 Engleside Avenue, Beach Haven, New Jersey, 08008, and the New Jersey Department of Transportation (“NJDOT”), having an address at 1035 Parkway Avenue, Trenton, New Jersey 08625-0600 (“NJDOT”)

WITNESSETH:

WHEREAS, NJDOT intends to remove sediment in certain state channels (“State Channels”) from the Beach Haven area, and requires a location to manage and dewater dredged material; and

WHEREAS, the State of New Jersey further has the responsibility to provide dredged material management capacity for the United States Army Corps of Engineers; and

WHEREAS, Beach Haven is the owner of the property on which a confined disposal facility (“CDF”) known as Parker Island is located in the Borough of Beach Haven, Ocean County, as shown on the tax maps of the Borough of Beach Haven and as outlined in yellow on the map attached hereto as Exhibit A ; and

WHEREAS, the current CDF consists of one (1) cell and a total of approximately four and one third (4.3) acres; and

WHEREAS, the NJDOT seeks to manage and use the CDF to enable the long-term, sustainable management and beneficial use of dredged material from State and Federal Channels in the area; and

WHEREAS, the NJDOT and Beach Haven intend to work cooperatively to manage site capacity over the term of the Agreement to manage the capacity needs of the Borough of Beach Haven; and

WHEREAS, the Parker Island CDF is currently unusable due to damaged berms; and

WHEREAS, it is the interest of Beach Haven to have State and Federal channels maintained; and

WHEREAS, it is in the interest of Beach Haven for the NJDOT to rehabilitate and maintain the CDF; and

NOW THEREFORE, Beach Haven and NJDOT, intending to be legally bound, agree as follows:

1. CONSIDERATION

A. The consideration given by NJDOT for this Agreement shall be the operation and maintenance of the existing CDF for a period of 25 years, subject to extension, as well as the rehabilitation of the CDF as shown in Exhibit B.

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B. The consideration given by Beach Haven for this Agreement is allowing NJDOT to traverse and/or use Property owned by Beach Haven to maintain a CDF for the purpose stated above.

C. Beach Haven will coordinate with the NJDOT regarding placement of any and all future materials considered for placement within the CDF from a project that is not managed by the NJDOT Office of Maritime Resources State Channel Dredging Program.

D. Beach Haven and NJDOT agree that the NJDOT shall have the right to leave the site in substantially similar, but no worse than the current condition, as shown on existing current surveys, at the termination of this Agreement.

E. Beach Haven and NJDOT agree that this Agreement is in reference to CDF improvements and use. Any other island or site capital improvements may be the subject of modification to this Agreement or a future new Agreement.

2. APPLICABLE LAW AND REGULATIONS

A. The parties shall comply with all applicable federal, state, county and municipal laws, ordinances and regulations wherein the Property is located.

3. CONDITIONAL USE OF THE PROPERTY

A. NJDOT and its contractor(s), inspectors and engineers shall have the right to enter and conduct activities required to maintain, use and/or improve the CDF, including but not limited to the right to excavate drainage ditches, build and replace retaining embankments or walls, sluiceways and spillways, move and grade sediment, implement the improvements depicted in Exhibit B, and other activities necessary for the use of the CDF provided such activities are in full compliance with any state, federal or local permits for the maintenance, use and improvement of the CDF.

B. The NJDOT has the right to allow the US Army Corps of Engineers direct use of the CDF to place dredged material subject to available capacity, all required federal, state and local permits and approvals, and the terms of this Agreement.

C. Upon the completion of any work, NJDOT shall have its contractors clear all equipment, debris and materials other than dredged material, attributable to the project. All debris shall be appropriately disposed.

5. INDEMNIFICATION AND INSURANCE

A. The NJDOT, subject to the provisions of the New Jersey Tort Claims Act and the New Jersey Contractual Liability Act, as codified in N.J.S.A. Title 59, shall be responsible for, and shall at its own expense, defend itself against any and all suits, claims, losses, demands or damages of whatsoever kind or nature, arising out of or in connection with any act or omission of the NJDOT, its employees, agents or contractors, in the performance of the obligations assumed by the NJDOT pursuant to this Agreement.

B. NJDOT shall require its contractor to maintain insurance pursuant to applicable NJDOT specifications. Said insurance shall include Beach Haven, its officers, agents and employees as additional named insureds.

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C. Beach Haven, subject to the provisions of the New Jersey Tort Claims Act and the New Jersey Contractual Liability Act, as codified in N.J.S.A. Title 59, shall be responsible for, and shall at its own expense, defend itself against any and all suits, claims, losses, demands or damages of whatsoever nature arising out of or in connection with any act or omission of Beach Haven, its employees, agents or contractors, in the performance of the obligations assumed by Beach Haven pursuant to this Agreement.

D. No elected or appointed official, commissioner, member, trustee, member of a board, officer or employee of the NJDOT will be personally liable under, or by reason of, this Agreement, or any of its articles, covenants or provisions; nor shall any such person be personally liable, or be sued individually, for damages on account of any breach of this agreement, no matter what their involvement may be.

6. COORDINATION AND DISPUTE

If there are any disputes among the parties concerning this Agreement, the authorized representatives of each party shall confer to resolve the dispute.

7. AMENDMENT

This Agreement may be amended, supplemented, changed, modified or altered only in writing by mutual agreement of the parties.

8. CHOICE OF LAW

This Agreement is being executed and is intended to be performed in the State of New Jersey and shall be governed in all respects by the laws of the State of New Jersey.

9. ENTIRE AGREEMENT

This Agreement contains all the terms and conditions agreed upon by the parties and supersedes all other negotiations, representations, and understandings of the parties, oral or otherwise, regarding the subject matter of this Agreement.

10. BINDING EFFECT

All of the terms, conditions, and covenants to be observed and performed by the parties shall be applicable to and binding upon their several successors and assigns.

11. SUBJECT TO FUND AVAILABILITY

A failure by the NJDOT to observe and perform any condition on its part to be performed under this Agreement as a result of the failure of the Legislature to appropriate shall not in any manner constitute a breach or default by the NJDOT and the NJDOT shall not be held liable in any manner whatsoever because of the absence of available funding.

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12. AUTHORITY

By the signatures below, the parties executing this Agreement confirm that they are mutually bound by and fully authorized and empowered to enter into and bind their organization by all provisions contained herein.

13. NOTICE

Every notice, approval, consent or other communication desired or required under this Agreement should be effective only if the same shall be in writing and sent postage prepaid by overnight mail or United States registered, by certified mail or a similar mail service available at the time or by facsimile, receipt of which is confirmed, directed to the other party at its address as follows (or such other address as either party may designate by notice given from time to time in accordance with this section:

If to NJDOT:

New Jersey Department of TransportationOffice of Maritime Resources1035 Parkway Avenue, MOB 3rd FloorPO Box 600Trenton, New Jersey 08625-0600Attn: Multimodal Services

T.: (609) 530-4770

If to the Borough of Beach Haven:

The Borough of Beach Haven300 Engleside AvenueBeach Haven, NJ 08008Attn:

T.: (609) XXX-XXXX

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IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be duly executed and delivered as the latest date that this Agreement has been executed and approved by both parties.

ATTEST/WITNESS BOROUGH OF BEACH HAVEN

________________________________ By:________________________________

Date: _____________________

ATTEST/WITNESS: STATE OF NEW JERSEYDEPARTMENT OF TRANSPORTATION

________________________________ By:________________________________SECRETARY, NEW JERSEY MICHAEL RUSSO, NJDOTDEPARTMENT OF TRANSPORTATION ASSISTANT COMMISSIONER

Date: ____________________

This Agreement has been reviewed and approved as to form for NJDOT.

GURBIR S. GREWALATTORNEY GENERAL OF NEW JERSEY

By:______________________________David M. KahlerDeputy Attorney General

Date:

Exhibit A5

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Exhibit B

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