Asbury Park Casino, Carousel and Power Plant Explainer of Justice Solomon’s Opinions for the July 8 Council Meeting (Long and Short Versions)

Preamble

There is growing outrage over an inaccurate Press Release published by the Asbury Park City Council claiming Justice Solomon found the City has no rights to a lawsuit to repurchase the Casino due to developer construction defaults.

He found exactly the opposite.

At the June 24 council meeting, activists read this entire lengthy rebuttal into the record. I was humbled.  The City is planning a much bigger meeting July 8.

I recognize this piece is long enough to warrant TLDR treatment (too long didn’t read).   Please forgive me for that -  the fact pattern is 44 years old (this redevelopment plan was first proposed in 1982!).

To aid the public in preparing for the upcoming July 8 meeting, I’m leaving up this detailed “Long Version,” but I am including a  “Short Version”  (half the length) below it.

Please keep checking back here because in the coming weeks I will also publish “Talking Points” and “Suggested Questions” to make sure the public is ultra prepared for July 8.   I will also be publishing other relevant material to use.  Please bring all your friends and family to that July 8 meeting to show support to save The Casino.

If you need help preparing remarks for the meeting, don't hesitate to contact me at 848-863-8800. Also helpful is the group "Save Our Structures - Asbury Park" who can be contacted at info@sos-ap.org.

LONG VERSION

In January of 2026 a developer inquired of the City of Asbury Park  about a demolition permit for part of the Casino complex. This led to a public debate of whether the City could sue under contract for construction defaults and repurchase the Casino.

Retired NJ Supreme Court Justice Lee A. Solomon was retained to opine on the topic.  He was tasked with assuming a default occurred (not finding if one did occur) and relating what rights the City has after default.

Justice Solomon reviewed two contracts:

1.    The 2002 Redeveloper Agreement with Asbury Partners (iStar) and

2.    The 2010 Subsequent Developer Agreement with Madison Marquette.

He accepted a brief and appendix from Thomas De Seno, Esq., and held a 2-hour oral argument with Mr. De Seno who was arguing the City’s anticipated legal position, and Asbury Park’s redevelopment attorney Joseph Maraziti, Esq., who was arguing the anticipated defenses of the developers.

Justice Solomon issued a report dated April 23, 2026.

His Honor was first asked to answer this question:

Which agreement governs construction obligations for the Casino?  

He found it was the 2002 agreement with Asbury Partners (iStar).  Here is his exact finding from  page 9 of his report:

Details of the Casino redevelopment, like the Convention Hall redevelopment, were initially established by the 2002 Agreement and further detailed in the 2010 Agreement.

However, unlike Convention Hall, the obligation to redevelop the Casino remains with Asbury Partners under the 2002 Agreement.

After establishing the 2002 contract governs, Justice Solomon was next asked this question:

Does the 2002 contract allow the City to sue to repurchase the Casino if there is a developer default?

At page 14 of his report, the Justice found that Asbury Park has the right to sue to take back the Casino if there is an existing default.  Here is the exact language of his report:

Asbury Partners would be liable for any default in theredevelopment of the Casino, and the City's remedies would be governed by the 2002 Agreement; these remedies may include repurchasing the Casino, seeking injunctive relief, suing to cure the default, terminating Asbury Partners's rights in the Casino, and/or taking other actions permitted at law or in equity.

The contract states the City must pay what the Developer paid ($1.5 million) to repurchase the Casino.  The City can then sell to a new Developer at market price.

The April 23^rd report certainly settled all the questions Justice Solomon was asked to answer.

After receiving the report, the City did not make it public, not even to Mr. De Seno.

For some reason, a week later Justice Solomon issued a second report on April 28.  It is one short paragraph.   It is unknown who asked for it or what question the City posed to the Justice that prompted his response.

In it, he reconfirms that the contract allows a lawsuit to reclaim the Casino if the developer is in default.  He adds that he offered no opinion on the likelihood of success on the lawsuit, nor the cost of it - only that the right to sue is supported.

Nothing was changed from the first report.

The City still didn’t make these reports public.

The City then sent a 3^rd document to Justice Solomon for review.  Mr. De Seno was not notified, not given a chance to comment and inexplicably removed from the process completely.  The public was not notified. It is unclear who at City Hall made these  decisions or why.

Justice Solomon then issued a third report, dated May 28, 2026.  In it he reveals the City sent him the “2006 Dispute Resolution Agreement” (DRA).

The DRA was a settlement contract made between the City and Asbury Partners in 2006, after the City tried to force Asbury Partners to do some emergent repairs and patchwork to each of the boardwalk buildings.  They were relatively minor demands, like asbestos removal and roof leaks.  The only major construction called for was the complete rehab of the 5^th Avenue Pavilion (where McLoone’s restaurant resides).

In short, Justice Solomon found the DRA did NOT change his opinion from his first two reports, but it is worth looking at his full explanation.

In the 2006 DRA, “Schedule C” is the Casino work.  It is only $1.3 million worth of environmental cleanup and minor repair work.  Here is the Schedule C headline, straight from the DRA:

SCHEDULE C

Casino

Projected Costs                                    $1,392,500

Justice Solomon goes on to explain that the work in the 2006 DRA had mostly been completed (McLoone’s Restaurant opened in 2008) and any minor outstanding issue was incorporated into the 2010 maintenance contract with Madison Marquette.

What effect does that have? 

1.    The City can’t declare a default on the Casino for just that $1.3 million worth of work, because the parties agreed that work is finished.

2.    However, Justice Solomon made clear that if there are ANY OTHER construction obligations the developer had under the 2002 agreement that they failed to do, the City can default that and sue to repurchase the Casino.   

This finding of the Justice makes sense if you look at the default language in the 2006 agreement. Before you read it, you must know what “The Projects” are under the DRA, and what “Exhibit F” is under the DRA.

“The Projects: are defined as follows:

As was shown above, “Schedule C” is the Casino emergent repair work for $1.3 million dollars.  The other schedules are other buildings.

“Exhibit F” is other minor matters like replacing boardwalk benches and moving the Tillie mural.

Below is the default contract language of the DRA, which makes clear that if the 2002 contract has defaults that are not listed in “The Projects” or “Schedule F” of the DRA, those defaults are NOT extinguished by the 2006 DRA:

To simplify:

1.    The City CAN’T default the developer on any work listed in the 2006 DRA.

2.    The City CAN default the developer on ANY OTHER work not done required by the 2002 contract.

This is exactly what Justice Solomon found, and here is his language from his report May 28 report:

As discussed herein, the 2006 Agreement superseded the2002 Agreement regarding certain redevelopment projectobligations for the Casino. The 2010 Agreement theneliminated those obligations. That means that Asbury Partners's remaining redevelopment obligations, if any,would only be those that were provided under the 2002Agreement but that were not listed as projects under the2006 Agreement and, therefore, were not subsumed. If thereare any remaining redevelopment obligations of AsburyPartners regarding the Casino, remedies for default wouldbe governed by the 2002 Agreement.

Justice Solomon then reminded us that it was not his job to tell us if there were “any remaining development obligations” from the 2002 contract, because he wasn’t asked to look.  Recall he was asked to “assume” the defaults occurred, not go find them. Here is the exact language he used in the report:

“It is beyond the scope of this Letter to evaluate whether such obligation remain and whether there has been a default with respect to any such obligations.”

So the question His Honor left for the City and the public to decide is this:

Are there “any” construction obligations still outstanding from the 2002 contract, not listed in the DRA, upon which the City can declare default and sue to reclaim the Casino?

The answer is yes - $33.6 million worth of defaulted construction obligations.  Here is where to find it:

Start with the language of the 2002 contract, specifically section 3.5.  It states that the construction obligation on the Casino would be detailed in a report of all work to be done, to be submitted by the developer themselves.  Here is that 2002 contract language [NOTE: “COPS” means city owned property]:

3.5. Casino Property and Power Plant Property

“Both the Casino Property and the Power Plant Property are

COPS as defined in Article 4 and are intended to be sold as

provided therein.

The Master Developer shall have prepared a report by an

appropriate professional firm ( s) reviewing the condition of each

property and recommendations for the rehabilitation, or

demolition (limited to the rear of the Casino building) if

necessary, and the costs of renovation along with a detailed

schedule. The report shall also address any environmental

conditions known or suspected with regard to each property.

The parties shall within 120 days of receipt of the above

report, and prior to closing, agree to, said consent not to be

unreasonable withheld, a schedule of renovations to be undertaken

by the Master Developer after closing.”

In 2004, the developer submitted that report, drafted by Clarke Caton Hintz,  which became part of the 2002 contract via the above section 3.5.

NOTE WELL:  The Clarke report is not separate from the contract; once submitted it becomes part of the contract.  For proof, see the operative words above, “to be undertaken by the Master Developer after closing.”

It is a lengthy and detailed report of nearly 300 pages.  The cost of the repairs the developer obligated themselves to do:  $33,614,000.00.  Here is the summary right from the report:

COST ESTIMATE

Attached is a preliminary cost estimate for the renovation and reconstruction of the Casino which totals $33,614,000.This estimate includes the construction of a new 3 story retail section (81,860 sf) in the location where the arenapart of the Casino now stands.  The estimate includes restoration of the exterior and interior historic fabric of thebuilding but does not include tenant fit-out costs.

The attached preliminary cost estimate is based on current floor area, volume and other conceptual estimatingtechniques.  As the design of the  Casino progresses through the end of construction documents, the estimate willneed to be updated and refined. The cost estimate which has been prepared by Clarke Caton Hintz and their costconsultant Becker & Frondorf represents the architect's judgment as a design professional familiar with theconstruction industry.  It is recognized, that neither CCH nor Asbury Partners has control over the cost of labor,materials or equipment, and final construction cost may vary from this estimate.

The Developer submitted the timeline for repairs with the report.  The dates for construction work runs from 2004 to 2007.  Two decades later, the developer never touched it, evidencing their default.

Only 62 days after this report and timeline was submitted by the developer (well within the 120-day contractual period),  the Casino was sold to the developer, just as contract section 3.5 calls for, since the repairs and timeline were agreed upon.

If anyone is raising the question of whether this 2004 report is the same report to be incorporated into section 3.5 of the 2002 contract, it says it is.  Here is the language right from the report:

INTRODUCTION

This report has been prepared in response to a requirement in Section 3.5 Casino Property andPower Plan Property of the  City of Asbury Park/Asbury Partners Developer's Agreement.  Thecontract between the City and Asbury partners requires that the Master Developer provide a reportby an appropriate professional firm(s) reviewing the condition of each property andrecommendations for the rehabilitation or demolition (limited to the rear of the Casino building) ifnecessary and the costs of renovation along with a detailed schedule.  The report shall also addressany environmental conditions known or suspected with regard to each property.

The legal inquiry can end there.  The Clarke report created a construction obligation the developer never completed, and that default continues today.

However some may question whether the City formally approved of the timeline in the Clarke report, consistent with section 3.5 of the contract.

They certainly did - when they closed on the property 62 days after the report and timeline was submitted.   There are two (3) legal reasons why the closing is an acceptance of the Clarke report by Asbury Park.

First:  December 17, 2004 was the night the City formally authorized the Casino closing, which occurred six days later.

At that meeting, City Attorney James Aaron stated the City lowered the sales price of the Casino, Carousel and Power Plant because Asbury Partners was going to do $33 million of redevelopment work (the Clarke report).  That means the Clarke report work was literally the quid pro quo in the sales contract.  That alone makes it undeniable that the City and Partners agreed to the work and time schedule.

Second, New Jersey law has the doctrine of “assent by action.”  It means a party need not accept a contract in writing with specific words like “I hereby accept your offer.” A contract can also be accepted by acting on it and completing the proposed agreement, or by accepting the benefits under the proposal.

Here, section 3.5 indicates no closing will take place until the Asbury Partners submits the construction proposal, and the City approves the construction timeline within 120 days.  After Asbury Partners submitted the Clarke report with a timeline, the City closed in 62 days.  The action of closing on the property was legal acceptance of the Clarke report.

Third, and this is a more powerful position, under New Jersey law, the “doctrine of merger by deed”dictates that upon the delivery and acceptance of a deed at closing, the original contract of sale is fully executed. All prior negotiations, agreements, and stipulations are absorbed into the deed. Consequently, the deed becomes the final, sole repository of the parties' rights.   Usually, that will extinguish all rights in the contract by “merger.”

However, there is no “merger” if the parties include in the deed “an express survival clause.”  That means if an obligation from the purchase contract is repeated in the deed, it is not merged and stays in effect.

Here the City and Asbury Partners specifically included the developer’s construction obligation from section 3.5 of the Redeveloper Agreement into the deed, so it “runs with the land.” That means it can’t be extinguished even by a subsequent purchaser (like Madison Marquette).   Here is the exact language from the Casino deed:

THIS DEED AND THE CONVEYANCE MADE HEREIN IS GRANTED IN ACCORDANCE WITH THE TERMSAND CONDITIONS OF THAT CERTAIN AMENDED AND RESTATED REDEVELOPER AND LANDDISPOSITION AGREEMENT ("REDEVELOPER'S AGREEMENT") DATED OCTOBER 28, 2002 AS APPROVEDBY ORDINANCE NUMBER 2002-2617. IT IS THE EXPRESS INTENTION OF THE CITY OF ASBURY PARK ASGRANTOR THAT THE CONVEYANCE MADE HEREIN SHALL BE EXPRESSLY SUBJECT TO ANDCONDITIONED UPON THE TERMS AND CONDITIONS OF THE AFORESAID REDEVELOPER'SAGREEMENT, AS SAME MAY BE AMENDED FROM TIME TO TIME, INCLUDING, BUT NOT LIMITED  TO,THE REQUIREMENTS  OF SECTION  3.5 OF THE AFORESSAID REDEVELOPER'S AGREEMENT, EVENAFTER THE DATE OF RECORDING OF THIS DEED. THE CITY EXPRESSLY RESERVES ANY AND ALLRIGHTS AND REMEDIES WHICH MAY EXIST PURSUANT TO ARTICLE 8 OF THE REDEVELOPER'S AGREEMENT IN THE EVENT OF A SUBSEQUENT DEFAULT BY THE GRANTEE.

Note that last part well:  The Casino deed incorporates both the section 3.5 construction obligations and Article 8 of the Redeveloper Agreement.  That’s the default and remedies section. 

It is a senseless argument for the Developer to claim the parties took the time to include in the deed Section 3.5 which is the construction obligation requirement,  Section 8 which is how to default the failure of that construction obligation, then claim the parties agreed there is no construction obligation to default.  They would have no reason to put that in the deed and make it run with the land if the Clarke report wasn’t accepted. Redevelopment of the Casino is the entire purpose of the contract.

The above is the sum of what Justice Solomon found in his 3 reports.  It is clear he found the contracts allow a lawsuit to retake the Casino, if there are defaulted construction obligations from the 2002 contract.

It is indisputable that the Clarke report is a defaulted construction obligation.

Additionally, The Section 8 Default Provision in the 2002 contract has another tool the City can use to declare a default.  It is called the “Abandonment Provision.”  It was not discussed by Justice Solomon because he was asked to assume a construction default, not find one.

Here is the Abandonment Clause right from the 2002 contract:

8.1 Abandonment, Notices

A.    Abandonment of any part or portion of the Project by  Master Developer or Subsequent Developer shallmean the failure to adequately staff or diligently prosecute the Project to ensure the achievement of the Project.

B.   Failure by Master Developer or Subsequent Developer to meet the times for commencement andcompletion set forth for any part or portion of and or to meet the terms and conditions contained in this Agreement shall constitute a Default for that

property or portion of the Project only.

Asbury Partners was retained 24 years ago on a 30-year Waterfront Redevelopment Plan (WRP) that expires in 2032.  They never began Casino redevelopment, which is clearly a failure to “diligently prosecute the Project.”   

That date six years from now in 2032 is vitally important.  If the City waits to sue until after the WRP expires, they risk running into a defense called “the doctrine of laches.”   Under that doctrine, the Court may find the City waited too long to press their rights and rule they expired with the WRP.  The need to sue is now emergent.

THE CITY’S PRESS RELEASE

The City released Justice Solomon’s 3 reports with a 4^th document – a summary from their attorney Mr. Maraziti.  At the same time they issued a press release that was based on what Mr. Maraziti said, not what Justice Solomon said.  Mr. De Seno was given no advanced notice of publication so he could respond.

In his summary, Mr. Maraziti claims:

Justice Solomon and I are in agreement about the effect of the Dispute Resolution Agreement on the inability of the City to “take back” the Casino Buildings.

That’s an entirely false attribution to Justice Solomon.  Justice Solomon said Asbury Park can’t default the work listed in the 2006 DRA.  He said the City CAN default “ANY” other work governed by the 2002 agreement. 

That would be the $33.6 million listed in the Clarke report.

Mr. Maraziti never mentions the Clarke report as part of the 2002 contract in his summary.

The City’s press release attributes this sentence to Mayor John Moor:

“While the report confirms that reclaiming ownership of the Casino property is not a viable path underthe existing Agreements…”

That’s another false attribution to Justice Solomon.  The words “not a viable path under the existing Agreements” do not appear anywhere in Justice Solomon’s reports.  It’s also the opposite of what Justice Solomon said, which is that the contracts support a lawsuit to retake the Casino if there are defaulted construction obligations under the 2002 contract.

The Press Release never mentions the Clarke report as part of the 2002 contract either.

HOW DID THE CITY PRESS RELEASE BECOME SO MISTAKEN?

It is unclear who wrote the Press Release. It is likely that  someone at City Hall read Justice Solomon’s opinions and did not themselves consider the Clarke report. They may not have known of it, and that’s no sin because after all, it’s 22 years old. They mistakenly thought the 2006 work obligation described in the DRA was all there ever had been. 

Not knowing of the Clarke report $33.6 million in redevelopment obligations, they took a step beyond the Justice’s reports:  They declared there exists no other construction defaults, and unfortunately, wrongly attributed that to Justice Solomon.

If the City reviews this matter with the Clarke report in hand and reconsiders, they will see that Justice Solomon's opinion confirms the City CAN sue to reclaim the Casino for failure to abide by the 2002 contract obligations, which is an existing default.  They should issue a new press release stating that.

SHORT VERSION

Justice Solomon reviewed two documents:

A.  the 2002 Redeveloper Agreement with Asbury Partners (iStar)

B.   the 2010 Subsequent Developer Agreement with Madison Marquette

He was asked to “assume a default” and list the City’s rights. He issued a report dated April 23, 2026.  His Honor answered two questions:

1.    Which agreement governs construction obligations for the Casino?  

Answer - The 2002 agreement with Asbury Partners (iStar):

However, unlike Convention Hall, the obligation to redevelop the Casino remains with Asbury Partners under the 2002 Agreement.

2.    Does the 2002 contract allow the City to sue to repurchase the Casino if there is a developer default?

Answer -Yes:

Asbury Partners would be liable for any default in theredevelopment of the Casino, and the City's remedies would be governed by the 2002 Agreement; these remedies may include repurchasing the Casino…

The April 23^rd report settled all the questions Justice Solomon was asked to answer.  The City should have celebrated and published it.  They didn’t.  The City requested something more. We don’t know who, what or why.

On April 28, Justice Solomon issued a one paragraph letter, reaffirming his first report.  He added he has no opinion on the cost or likelihood of success of the suit.

Again, the City should have celebrated and published it.  They didn’t. For unknown reasons, the City requested something more. We don’t know who, what or why. It sure seems like someone at City Hall doesn’t want to win.

Justice Solomon issued a third report dated May 28, 2026.  The City sent him the “2006 Dispute Resolution Agreement” (DRA).

The DRA was a settlement contract between the City and Asbury Partners in 2006. The City wanted Asbury Partners to do some emergent repairs (like environmental cleanup) and small patchwork to each of the boardwalk buildings.  The only major construction was the complete rehab of the 5^th Avenue Pavilion.

For the Casino, it was $1.3 million in emergent repairs.  These repairs were nearly all completed. They are referred to as “The Projects" and “Schedule F.”

Justice Solomon looked at this section of the DRA [Note: “Redevelopment Agreement” is the 2002 contract with Asbury Partners]:

To simplify:

1.    The City CAN’T default the developer on any work listed in the 2006 DRA.

2.    The City CAN default the developer on ANY OTHER work not done but required by the 2002 contract.

To no one’s surprise, the above is exactly what Justice Solomon found:

That means that Asbury Partners's remaining redevelopmentobligations, if any, would only be those that were providedunder the 2002 Agreement but that were not listed asprojects under the 2006 Agreement and, therefore, were notsubsumed. If there are any remaining redevelopmentobligations of Asbury Partners regarding the Casino,remedies for default would be governed by the 2002Agreement.

As you can see, all we need to do is find 2002 construction obligations not done, default them, and sue to repurchase the Casino.

For the third time City Hall should have celebrated and published the 3 reports.  Instead, City Redevelopment Attorney Joseph Maraziti issued his own report saying Justice Solomon ruled there is no legal way to default the developer and repurchase the Casino (clearly not what he said).  The City Press release did not cite Justice Solomon – it cited Mr. Maraziti.

Are there construction obligations in the 2002 Agreement that the developer never did?  Only $33.6 million worth of them. Let’s find them.

Start with the section 3.5 of the 2002 contract.  It says the Casino redevelopment work will be put in a report along with a schedule to do it.  It also says the City is not allowed to sell the Casino to the developer until that is done.  Here it is.

 [NOTE: “COPS” means city owned property]:

3.5. Casino Property and Power Plant Property

“Both the Casino Property and the Power Plant Property are

COPS as defined in Article 4 and are intended to be sold as

provided therein.

The Master Developer shall have prepared a report by an

appropriate professional firm ( s) reviewing the condition of each

property and recommendations for the rehabilitation, or

demolition (limited to the rear of the Casino building) if

necessary, and the costs of renovation along with a detailed

schedule. The report shall also address any environmental

conditions known or suspected with regard to each property.

The parties shall within 120 days of receipt of the above

report, and prior to closing, agree to, said consent not to be

unreasonable withheld, a schedule of renovations to be undertaken

by the Master Developer after closing.”

In 2004, the developer submitted that report, drafted by Clarke Caton Hintz,  which became part of the 2002 contract via the above section 3.5.

It’s nearly 300 pages.  Here is the cost right from the report:

COST ESTIMATE

Attached is a preliminary cost estimate for the renovation and reconstruction of the Casino which totals $33,614,000.This estimate includes the construction of a new 3 story retail section (81,860 sf) in the location where the arenapart of the Casino now stands.  The estimate includes restoration of the exterior and interior historic fabric of thebuilding but does not include tenant fit-out costs.

Also submitted was the construction schedule from 2004 to 2007.   Was this the report and timeline called for in section 3.5 of the contract?  It says so in the report:

INTRODUCTION

This report has been prepared in response to a requirement in Section 3.5 Casino Property andPower Plan Property of the  City of Asbury Park/Asbury Partners Developer's Agreement. 

Only 62 days after this report and timeline was submitted the Casino was sold to the developer, exactly as contract section 3.5 requires.  Once again, the City should be celebrating.  Instead, some are still questioning whether the Clarke report work was agreed to be done.

I’ll list three legal reasons that proves the Clarke report was agreed upon.

First:  December 17, 2004 was the night the City formally authorized the Casino closing, which occurred six days later.

At that meeting, City Attorney James Aaron stated the City lowered the sales price of the Casino, Carousel and Power Plant because Asbury Partners was going to do $33 million of redevelopment work (the Clarke report).  That means the Clarke report work was literally the quid pro quo in the sales contract.  That alone makes it undeniable that the City and Partners agreed to the work and time schedule.

Second, the closing itself was the City’s acceptance of the Clarke report. New Jersey law has the doctrine of “assent by action.”  It means that writing, “I accept your offer” is not the only way to accept a contract.  A contract can also be accepted by the action of completing it.  Contract  Section 3.5 says the City can’t close until they accept a construction plan and timetable.  Closing on the property accepted the Clarke report.

Third, and most powerfully, New Jersey has the “doctrine of merger by deed.”  It means once a contract closes, any obligations “merge” into the deed and are considered complete. UNLESS…

 in the deed there is “an express survival clause.”  If an obligation from the purchase contract is repeated in the deed, it is not merged and stays in effect.

The City and Asbury Partners repeated in the deed the developer’s construction obligation from section 3.5 of the Redeveloper Agreement so it “runs with the land.” That means it can’t be extinguished even by a subsequent purchaser (like Madison Marquette).   Here is the exact language from the Casino deed:

THIS DEED AND THE CONVEYANCE MADE HEREIN IS GRANTED IN ACCORDANCE WITH THE TERMSAND CONDITIONS OF THAT CERTAIN AMENDED AND RESTATED REDEVELOPER AND LANDDISPOSITION AGREEMENT ("REDEVELOPER'S AGREEMENT") DATED OCTOBER 28, 2002 AS APPROVEDBY ORDINANCE NUMBER 2002-2617. IT IS THE EXPRESS INTENTION OF THE CITY OF ASBURY PARK ASGRANTOR THAT THE CONVEYANCE MADE HEREIN SHALL BE EXPRESSLY SUBJECT TO ANDCONDITIONED UPON THE TERMS AND CONDITIONS OF THE AFORESAID REDEVELOPER'SAGREEMENT, AS SAME MAY BE AMENDED FROM TIME TO TIME, INCLUDING, BUT NOT LIMITED  TO,THE REQUIREMENTS  OF SECTION  3.5 OF THE AFORESSAID REDEVELOPER'S AGREEMENT, EVENAFTER THE DATE OF RECORDING OF THIS DEED. THE CITY EXPRESSLY RESERVES ANY AND ALLRIGHTS AND REMEDIES WHICH MAY EXIST PURSUANT TO ARTICLE 8 OF THE REDEVELOPER'S AGREEMENT IN THE EVENT OF A SUBSEQUENT DEFAULT BY THE GRANTEE.

Note the last part:  Article 8 of the Redeveloper Agreement is in the deed too. That’s the default and remedies section. 

It is a senseless argument to claim the parties took the time to include in the deed the Section 3.5 construction obligation requirement,  the Section 8 default remedies  for failure to construct, but the parties “forgot” to include the actual  construction obligation to default.  Redevelopment of the Casino is the entire purpose of the contract, and it is the Clarke report.

Additionally, the Section 8 Default Provision in the 2002 contract has an  “Abandonment Provision.”  It was not discussed by Justice Solomon because he was asked to assume a construction default, not find one.

Here is the Abandonment Clause right from the 2002 contract:

8.1 Abandonment, Notices

A.    Abandonment of any part or portion of the Project by  Master Developer or Subsequent Developer shall mean the failure to adequately staff or diligently prosecute the Project to ensure the achievement of the Project.

B.   Failure by Master Developer or Subsequent Developer to meet the times for commencement andcompletion set forth for any part or portion of and or to meet the terms and conditions contained in this Agreement shall constitute a Default for that

property or portion of the Project only.

Asbury Partners was retained 24 years ago on a 30-year Waterfront Redevelopment Plan (WRP) that expires in 2032.  Never starting construction is clearly a failure to “diligently prosecute the Project.”   

That 2032 date, only six years away, is vitally important.  If the WRP expires, a Court may find the City waited too long to press their rights and rule they expired with the WRP.   There is an emergent need to sue now.

WHY THE CITY’S PRESS RELEASE WAS WRONG

In his summary, Mr. Maraziti claims:

Justice Solomon and I are in agreement about the effect of the Dispute Resolution Agreement on the inability of the City to “take back” the Casino Buildings.

That’s an entirely false attribution to Justice Solomon.  Justice Solomon said Asbury Park can’t default just the work listed in the 2006 DRA, but CAN default “ANY” other work governed by the 2002 agreement.  That would be the $33.6 million listed in the Clarke report.

Mr. Maraziti never mentions the Clarke report.

The City’s press release attributes this sentence to Mayor John Moor:

“While the report confirms that reclaiming ownership of the Casino property is not a viable path underthe existing Agreements…”

That’s another false attribution to Justice Solomon.  The words “not a viable path under the existing Agreements” do not appear anywhere in Justice Solomon’s reports.  It’s also the opposite of what Justice Solomon said, which is that the contracts support a lawsuit to retake the Casino if there are defaulted construction obligations under the 2002 contract.

The Press Release never mentions the Clarke report as part of the 2002 contract either.

HOW DID THE CITY PRESS RELEASE BECOME SO MISTAKEN?

This is the politest assumption I can muster: Someone at City Hall read Justice Solomon’s opinions and did not consider the Clarke report. They may not have known of it, and that’s no sin because after all, it’s 22 years old. They mistakenly thought the 2006 work described in the DRA was all there ever was. 

Not knowing of the Clarke report’s $33.6 million in obligations, they took a step beyond the Justice’s reports:  They declared there exists no construction defaults, and unfortunately, wrongly attributed that to Justice Solomon.

If the City reviews this matter with the Clarke report in hand and reconsiders, they will see that Justice Solomon's opinion confirms the City CAN sue to reclaim the Casino for failure to abide by the 2002 contract obligations, which is an existing default.  They should issue a new press release stating that.