Because the property lies within a redevelopment area, known as the Pier Village District, anything that is built there must be approved by the city's redevelopment agency and Kushner Companies would need to designated as the redeveloper to be able to build on the site.
City Redevelopment Attorney Robert Beckelman said during a special meeting of the Long Branch Council that if the sale is not finalized, the resolution passed by the council on Oct. 8 will be moot.
"The parties asked to accelerate the approval of the phase 1 and 2 properties in advance of phase 3 to accommodate that sale as their are still unknowns regarding the phase 3 project that have to be considered and a redeveloper's agreement will have to be entered with Kushner if we are going to proceed with phase 3," Beckelman said.
The resolution adopted by council approves the sale and conveyance of the Phase 1 and 2 parcels of Pier Village and designates Kushner Companies as the redeveloper of those phases only.
"If we proceed to a phase 3 sale with the Kushner Company, we're going to enter an amended redeveloper's agreement," Beckelman said.
Kusher Companies must agree to several conditions before becoming the redeveloper of Phase 3 with parking assurances being one of the largest components.
"One of the largest issues was that if the phases were bifurcated the full parking obligation would therefore not be met because it is in phase 3 and the city would be left with a shortage of parking for the phase 1 and 2 project without phase 3," Beckelman said.
Ironstate has acknowledged that some of the parking spaces that were proposed for the first two phases were deferred to Phase 3 and that if it were not constructed, there would be a deficiency of parking in the area.
The city is asking for a $3.5 million deposit from Kushner Companies or Ironstate that will be placed in an interest bearing escrow account until the phase 3 property is conveyed to Kushner. At that point the money would returned.
If Kushner does not acquire and develop the phase 3 property, the city will retain the funds and Ironstate will commence construction of Phase 3 within a year of Kushner's decision not to proceed.
If Applied does not begin construction within a year, the city will retain the escrow and use the funds toward the purchase of the phase 3 parking parcel and/or prepare the area for use as public parking.
Kusher must also provide detailed drawings for phase 3 and projected revenues from absorption rates for the sale of residential units in Pier Village no later than Dec. 1, 2014.
City Attorney James Aaron said the resolution is all that is needed from the city for the two parties to close on the sale.
"We are taking a stumbling block off the table to allow the closing to take place if the two parties want to close it, and removing the city from being blamed by either party for failure to take action so that there could not be a closing, if in fact the parties get themselves together," Aaron said.
Mayor Adam Schneider said the city has tried to accommodate both the buyer and seller over the last few months.
"If it doesn't close it's not on us, we've done what we've been asked to do, we've considered reasonable requests from both sides," Schneider said.