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Exhibit 10.16
FORM OF DEVELOPMENT AGREEMENT
BETWEEN
_______
AND
BCC DEVELOPMENT AND MANAGEMENT CO.
________________
_________
__________________
2
TABLE OF CONTENTS
TO
DEVELOPMENT AGREEMENT
Page
----
R E C I T A L S..............................................................
1. ENGAGEMENT AND GENERAL DUTIES OF DEVELOPER..........................
1.1. Engagement of Developer....................................
1.2. Term of Agreement..........................................
1.3. Performance of Developer...................................
1.4. Project Manager............................................
1.5. Developer's Responsibilities for Costs and Expenses........
1.6. Description of Improvements................................
2. SERVICES TO BE PROVIDED BY DEVELOPER................................
2.1. Project Plans..............................................
2.2. Construction Schedule......................................
2.3. Ownership of Improvement Plans.............................
2.4. Progress Meetings and Reports..............................
(a) Meetings..........................................
(b) Progress Report...................................
2.5. Compliance with Construction Schedule and Budget...........
2.6. Approvals and Permits......................................
2.7. Consultant Contracts.......................................
2.8. Construction Contract......................................
2.9. Developer's Construction Supervision.......................
(a) Staffing and Supervision..........................
(b) Coordination of Consultants.......................
(c) Hazardous and Toxic Wastes........................
2.10. Change Orders..............................................
2.11. Payment Applications.......................................
(a) Delivery of Documents.............................
(b) Construction Schedule.............................
(c) Utilities.........................................
(d) Entitlements......................................
(e) Application for Payment...........................
(f) No Default........................................
(g) Insurance.........................................
(h) Property Located Off-Site.........................
2.12. Inspections and Construction Punch List....................
2.13. Financial Records..........................................
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2.14. Protection and Safety......................................
2.15. As-Built Survey............................................
3. REPRESENTATIONS AND WARRANTIES......................................
3.1. Developer's Representations and Warranties.................
4. COMPENSATION OF DEVELOPER...........................................
4.1. Reimbursable Expenses......................................
4.2. Development Fees...........................................
4.3. Owner's Funding of Land Acquisition Costs and
Improvement Costs..........................................
4.4. Satisfaction of Initial Disbursement Conditions............
4.5. Shortages..................................................
4.6. Third-Party Servicer.......................................
5. RESPONSIBILITIES OF OWNER...........................................
5.1. Cooperation................................................
5.2. Costs......................................................
6. TERMINATION.........................................................
6.1. Events of Default..........................................
6.2. Take Over..................................................
6.3. Termination Upon Event of Default..........................
6.4. Actions Subsequent to Termination..........................
7. INSURANCE PROVISIONS................................................
7.1. General Insurance Requirements.............................
7.2. Deductible Amounts.........................................
7.3. Insurance Types............................................
(a) Workers' Compensation.............................
(b) Comprehensive General Liability Insurance.........
(c) Comprehensive Automobile Liability Insurance......
(d) Improvements Insurance Coverage...................
(e) Boiler and Machinery Insurance....................
7.4. Continued Coverage.........................................
7.5. Waiver of Subrogation......................................
8. MISCELLANEOUS PROVISIONS............................................
8.1. Assignment.................................................
8.2. Amendment..................................................
8.3. Notices....................................................
8.4. Attorneys' Fees............................................
8.5. Entire Agreement...........................................
8.6. Governing Law..............................................
8.7. Severability...............................................
8.8. No Waiver..................................................
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8.9. No Joint Venture...........................................
8.10. Successors and Assigns.....................................
8.11. Indemnity..................................................
8.12. Additional Documents.......................................
8.13. Subsurface Conditions......................................
8.14. Force Majeure..............................................
8.15. Counterparts...............................................
EXHIBITS
A - Legal Description of Real Property
B - Site Plan of Improvements
C - Budget
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("AGREEMENT") is made as of the ____ day of
March, 1998 ("EXECUTION DATE") by and between _____________________________
____________________________ ("OWNER"), and BCC DEVELOPMENT AND MANAGEMENT CO.,
a Delaware corporation ("DEVELOPER"), with respect to the following Recitals:
R E C I T A L S:
A. Owner is or will be, prior to the commencement of the undertakings
contained herein, the owner of that certain real property located along _____
_____________________________________________ being more specifically described
in Exhibit "A" attached hereto and by this reference incorporated herein,
together with all improvements thereon and all appurtenances thereto (the "REAL
PROPERTY").
B. Pursuant to that certain Lease and Security Agreement (the "LEASE")
of even date herewith by and between Owner, as landlord, and __________
_______________________ ("TENANT"), a Delaware limited liability company, as
tenant, Owner has agreed to lease to Tenant, and Tenant has agreed to lease from
Owner, inter alia, the Real Property, on terms and conditions as more
specifically set forth in the Lease.
C. Owner and Developer desire to construct on the Real Property a two
(2) story, 106 unit personal care home/assisted living facility (such type of
facility being hereinafter sometimes referred to as a "FACILITY"), all as more
particularly described in Paragraph 1.6 below (the "IMPROVEMENTS").
D. _____________________________ a Delaware corporation and an
Affiliate of Developer ("MANAGER") will act as manager of the Facility to be
constructed on the Real Property, pursuant to a management agreement by and
between Tenant and Manager.
E. Developer is experienced in the planning, development and operation
of the type and quality of Facility contemplated by this Agreement.
F. Owner and Developer desire to enter into this Agreement whereby
Developer shall undertake certain duties in connection with the planning, design
and development of the Improvements on the terms and conditions set forth in
this Agreement.
G. BALANCED CARE CORPORATION, a Delaware corporation ("GUARANTOR"), has
agreed to guarantee Developer's duties and obligations under the Agreement,
pursuant to that certain Guaranty of even date herewith by and between Guarantor
and Owner.
NOW, THEREFORE, with references to the foregoing Recitals and
information, all of which are incorporated herein by this reference, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
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1. ENGAGEMENT AND GENERAL DUTIES OF DEVELOPER.
1.1. ENGAGEMENT OF DEVELOPER. Owner hereby engages Developer, subject
to the terms and conditions set forth in this Agreement, to perform the duties
and obligations set forth in this Agreement, and Developer agrees to accept such
engagement.
1.2. TERM OF AGREEMENT. The term of this Agreement shall commence on
the Execution Date and shall continue until the date on which all work,
improvements and services described herein have been completed in accordance
with the terms and provisions hereof. Notwithstanding the foregoing, this
Agreement shall be subject to early termination in accordance with the terms and
provisions of Paragraph 6.3 below.
1.3. PERFORMANCE OF DEVELOPER. Developer accepts the relationship of
trust and confidence established between Developer and Owner by this Agreement.
Developer covenants with Owner to furnish its best skill and judgment and to
cooperate with Owner, the Contractor (as defined in Paragraph 2.8 below) and any
other contractors or subcontractors performing work on the Improvements, and the
Architect (as defined in Paragraph 1.6 below) and any other designers,
surveyors, engineers or consultants performing design or consulting services
relating to the Improvements. Developer agrees to use its best efforts to
perform its duties and obligations under this Agreement in an efficient,
expeditious and economical manner, consistent with the best interests of Owner,
and in such a manner so as to effect completion of the planning and construction
of the Improvements within the time periods set forth herein and in the Lease.
1.4. PROJECT MANAGER. Developer shall provide a project manager for the
development of the Improvements who shall work such time on the development of
the Improvements as shall be necessary or desirable to adequately perform the
duties of Developer pursuant to this Agreement and shall be primarily
responsible for keeping Owner informed as to the progress and status of the
design, planning and construction of the Improvements.
1.5. DEVELOPER'S RESPONSIBILITIES FOR COSTS AND EXPENSES. Except as
otherwise specifically provided in this Agreement, Developer shall be
responsible for payment of salaries, fringe benefit contributions, payroll
taxes, withholding taxes and other taxes or levies in connection with
Developer's employees, and Developer's accounting fees, office overhead, general
and administrative fees and charges, legal fees and travel expenses not of
direct benefit to the Improvements, telephone, facsimile and other
telecommunication expenses, and document reproduction expenses.
1.6. DESCRIPTION OF IMPROVEMENTS. The Improvements shall consist of the
construction of the new building(s), depicted on the Design Drawings (as
hereinafter defined), together with all site improvements, including, without
limitation, parking, all as more particularly described in those certain plans
and specifications (the "DESIGN DRAWINGS") prepared by _______________ (the
"ARCHITECT"), dated ________________________, 1998 the drawing index of which is
attached hereto as Exhibit "B" and by this reference incorporated herein.
Developer covenants and agrees to cause the Improvements to be completed in
compliance with all requirements of this Agreement.
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2. SERVICES TO BE PROVIDED BY DEVELOPER.
2.1. PROJECT PLANS. Owner acknowledges and agrees that Developer has
delivered to it the Design Drawings and the budget (the "BUDGET") totaling
$____________ attached hereto as Exhibit "C" (collectively, the "PROJECT
PLANS"). Owner has approved the Design Drawings and the Budget delivered to
Owner as of the date hereof. Developer agrees to construct the Improvements in
accordance with the Project Plans, subject to such changes thereto as may be
made in accordance with the procedures for change orders set forth in Paragraph
2.10 below; provided, however, Owner further agrees that any changes in the
Project Plans which are intended to reduce the cost of construction but which
will not have an adverse effect on the appearance of the buildings or the value
or integrity of the Improvements shall not require Owner's approval but shall
only require notice to Owner.
2.2. CONSTRUCTION SCHEDULE. Developer has provided to Owner a
construction schedule (the "CONSTRUCTION SCHEDULE"), which schedule shall
include a detailed schedule indicating the projected timing and sequence of all
matters relating to the development and construction of the Improvements, and
the estimated completion dates for construction of the various components and
improvements comprising the Improvements (the "WORK"). Developer agrees to
construct the Improvements on a schedule consistent with that set forth in the
Construction Schedule, subject to such changes thereto as may be made in
accordance with the procedures for change orders set forth in Paragraph 2.10
below; provided, however, that Owner further acknowledges and agrees that any
changes in the Construction Schedule which are intended to shorten the
construction period shall not require Owner's approval but shall only require
notice to Owner.
2.3. OWNERSHIP OF IMPROVEMENT PLANS. All documents, plans, drawings and
specifications prepared by or at the request of Developer in connection with the
preparation of the Project Plans and the Construction Schedule, or otherwise in
connection with the preliminary planning and development of the Improvements
(collectively, the "IMPROVEMENT PLANS") shall be and remain the sole and
exclusive property of Developer; provided, however, that Owner shall have the
license and right to use the Design Drawings, Improvement Plans, and/or Project
Plans with respect to the Work, the Facilities, the Improvements, and the Real
Property. Owner shall not construct or cause to be constructed or participate in
the construction of any improvements or facility based in whole or in part on
the Improvement Plans or the Project Plans anywhere other than on the Real
Property. Notwithstanding the foregoing, Owner may retain copies of the
Improvement Plans and the Project Plans, and may distribute the same on a need
to know and confidential basis to architects, engineers, attorneys and other
agents of Owner for use in connection with the completion, maintenance, repair,
alteration, modification or replacement of the Improvements built or to be built
on the Real Property. Developer shall retain all rights to use all plans
referred to herein for any other projects in its sole and absolute discretion.
2.4. PROGRESS MEETINGS AND REPORTS.
(a) MEETINGS. Developer shall schedule telephonic meetings
with Owner as may be requested by Owner, but no more frequently than once per
calendar month, to discuss the progress of the development and construction of
the Improvements and to assess Developer's performance under and compliance with
the requirements of this Agreement, including, without
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limitation, compliance with the approved Improvement Plans, and each component
part thereof (including the Budget).
(b) PROGRESS REPORT. From time to time as may be requested by
Owner, but no more frequently than once per calendar month, Developer shall
provide Owner with a progress report (a "PROGRESS Report") in a form acceptable
to Owner. The Progress Report shall be submitted within 15 days of Owner's
request therefor and shall contain at least the following information:
(i) the status of all governmental permits and
entitlements required for the development and construction of the Improvements
(the "ENTITLEMENTS");
(ii) the status of all contracts to which Developer is a
party, including, without limitation, agreements with architects, consultants
and contractors performing or to perform work on or in connection with the
Improvements;
(iii) the status of construction of the Improvements,
including any updates to the construction schedules and key dates noted therein;
(iv) the status of compliance with the terms, contents
and requirements of the approved Improvement Plans, including, without
limitation, any variations or deviations (current or projected) from the Budget
(Developer shall maintain and make available to Owner all supporting receipts,
disbursement ledgers, journal entries and such other documents as may be
requested by Owner); and
(v) such other information relating to the Improvements
as Owner may reasonably require.
2.5. COMPLIANCE WITH CONSTRUCTION SCHEDULE AND BUDGET. Developer
shall promptly advise Owner if at any time it appears that development or
construction of the Improvements may not be finished on or before the Completion
Date (as hereinafter defined), or if it appears that the Budget will be
exceeded. In such event, Developer shall make recommendations to Owner as to any
appropriate corrective action to be taken, and will implement any such
corrective action reasonably approved by Owner. For purposes of this Agreement,
the term "COMPLETION DATE" shall refer to the date established for substantial
completion of the construction of the Improvements in the schedule component of
the Construction Schedule, which date shall be no later than thirteen (13)
months after the Execution Date (exclusive only of customary and immaterial
punch list items to be completed by the Contractor in the ordinary course). The
Improvements shall be deemed substantially complete on the day that Developer
and/or Manager provide to Owner evidence reasonably satisfactory to Owner of (i)
the certification of the Architect that the Improvements have been constructed
substantially in compliance with the Design Drawings approved by Owner, (ii) a
governmental certificate of occupancy for human use and habitation or its
equivalent for the Improvements, (iii) all licenses necessary for operation of
the Improvements for its intended use as a Facility, and (iv) the delivery to
Owner of the As-Built Survey (as defined in Paragraph 2.15 below).
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2.6. APPROVALS AND PERMITS. Developer shall process in a timely
manner and diligently pursue all applications, plans and maps and all other
Entitlements relating to the development and construction of the Improvements
and obtain all necessary approvals and permits and other Entitlements required
by governmental agencies having jurisdiction over the Real Property and/or any
aspect of the construction and development of the Improvements, and shall
cooperate and coordinate with Tenant, Manager, and applicable governmental
authorities with respect to Tenant's obtaining of an operating license and other
licenses or permits necessary for the operation of the Improvements as a
Facility, including, without limitation, any related inspections and required
alterations of the Improvements.
2.7. CONSULTANT CONTRACTS.
(a) In addition to the Architect, Developer shall select such
other engineers, consultants or designers whose services are necessary or
desirable in connection with the development and construction of the
Improvements, including, without limitation, a landscape architect, soils
engineer, structural engineer, mechanical engineer and civil engineer (such
designers, consultants and engineers being collectively referred to in this
Agreement as "CONSULTANTS"). Developer shall negotiate with the Consultants on
an arms-length basis, on the most advantageous terms possible not in excess of
industry standards, and shall prepare the contracts to be entered into between
Developer and the various Consultants. No payment or reimbursement for work or
services performed by any Consultant shall be made by Owner before a contract
with such Consultant has been executed and delivered to Owner.
(b) Unless Owner otherwise agrees in writing, the Architect
and all Consultants shall be required to maintain Professional Liability
insurance (errors and omissions) in amounts no less than One Million and No/100
Dollars ($1,000,000) each and subject to deductibles no greater than Fifty
Thousand and No/100 Dollars ($50,000.00), including prior acts and contractual
liability. Unless such policies are written on an "occurrence" basis, the
contracts with the Architect and the Consultants shall require the Architect and
the Consultants to maintain such Professional Liability coverage in force for a
period of five (5) years following substantial completion of the Improvements.
2.8. CONSTRUCTION CONTRACT. Developer has selected ______________
____ (the "CONTRACTOR") to undertake the construction of the Improvements. The
construction contract(s) to be entered into between Developer and the Contractor
(the "CONSTRUCTION CONTRACT") shall provide for a guaranteed maximum price and
shall be in form and substance acceptable to Owner. The terms of the
Construction Contract shall, unless otherwise consented by Owner, include,
without limitation, the following provisions:
(a) The Contractor shall not be entitled to the payment of any
fees relating to costs in excess of the guaranteed maximum cost unless based on
approved change orders;
(b) Requests for change orders must be submitted and processed
in accordance with the system for reviewing and processing change order requests
approved by Owner pursuant to Paragraph 2.10 below;
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(c) Application for payment must be submitted in accordance
with the payment application procedures approved by Owner pursuant to Paragraph
2.11 below;
(d) Provision shall be made for customary hold-back of not
less than ten percent (10%) of sums due the Contractor, and each subcontractor
and material supplier, until completion of the work which is the subject of the
contract pursuant to which payment is to be made; and
(e) Subject to the more specific provisions of the
Construction Contract, Developer shall cause Contractor to procure and maintain
at Contractor's own cost and expense, the following policies of insurance, with
limits and deductibles (to the extent not specifically set forth herein)
reasonably acceptable to Owner:
(i) Workers' Compensation Insurance and Employer's
Liability Insurance, each with statutorily proscribed limits of coverage and
otherwise in accordance with applicable law;
(ii) Comprehensive General Liability Insurance,
including, but not limited to, coverage for bodily injury, property damage,
personal injury (employee and contractual liability exclusions deleted),
products and completed operations, blanket contractual liability, owned, hired
or non-owned vehicles, owner's protective liability, broad form property damage
and severability of interest clause with limits of liability of $1,000,000.00
for each occurrence, combined single limit or current limit carried, whichever
is greater;
(iii) The limits of liability of the insurance coverage
specified in this Paragraph 2.8(e) may be provided by any combination of primary
insurance policies and excess liability ("umbrella") insurance policies;
(iv) Contractor shall procure an endorsement naming Owner
and Developer as additional named insureds;
(v) Contractor shall procure an Owner/Contractor
Protective Endorsement insuring the interests of Owner and Developer; and
(vi) The Comprehensive General Liability insurance policy
specified above shall provide that none of the required coverage may be reduced,
modified, cancelled or terminated without thirty (30) days prior written notice
to Owner.
2.9. DEVELOPER'S CONSTRUCTION SUPERVISION.
(a) STAFFING AND SUPERVISION. Developer shall maintain a
competent and sufficient staff in accordance with the staffing plan to monitor,
supervise and administer the progress of the Work in order, inter alia, to
ensure compliance of the Work with the approved Improvement Plans, and in full
compliance with applicable laws, rules and regulations affecting such Work.
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(b) COORDINATION OF CONSULTANTS. Developer shall coordinate
the activities of Architect, Contractor and all other Consultants performing
work or services related to the Improvements so as to avoid any unnecessary
duplication of effort or any unnecessary delay in the progress of the Work.
(c) HAZARDOUS AND TOXIC WASTES. Developer shall retain such
consultants and specialists as well as use its best efforts to ensure that no
materials or substances classified as hazardous or toxic under current federal
or state laws, rules, regulations and ordinances are used in the construction of
the Improvements, other than bonding materials, solvents, asphalt, diesel and
gasoline fuel, paint, varnish, shellac and similar materials permitted by law in
such construction. Developer shall use its best efforts to ensure compliance
with all federal and state laws regulating the release, discharge, use,
handling, storage, removal and/or transportation of toxic and hazardous wastes,
substances and materials in connection with the construction of the
Improvements, and each part thereof, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C., Section 9601 et seq.), and the Occupational Safety and Health Act (OSHA)
(29 C.F.R. Part 1910). In furtherance of the foregoing, prior to commencement of
the design or construction of the Improvements, Developer shall develop and
implement such hazardous materials program with which it shall make the
Contractor, Architect, all Consultants and each subcontractor and material
supplier employed or under contract in any capacity in connection with the
design, construction and operation of the Improvements aware, and shall
regularly monitor the performance of such persons and use its best efforts to
ensure that all such persons comply with such hazardous materials program,
including, without limitation, the clean up, removal or other remedial work
required as a result of any use, release or discharge of toxic or hazardous
wastes, substances or materials. Developer shall include a provision in each
contract with any of the aforementioned persons requiring that such persons
immediately report all incidents or occasions involving the release or discharge
of any toxic or hazardous wastes, substances or materials on the Real Property.
2.10. CHANGE ORDERS. Developer shall develop and implement, subject to
Owner's reasonable approval, a system for reviewing and processing construction
change order requests, which system shall: (i) employ a written change order
request form, and (ii) provide for prior written approval by Owner (except in
emergencies, in which event any oral authorization by Owner shall subsequently
be confirmed in writing). Developer shall make recommendations to Owner
concerning necessary or desirable changes to the Work, shall review requests for
change orders, shall submit recommendations to Owner concerning changes and
shall, subject to Owner's approval, negotiate change orders with the Contractor.
Except as specifically provided below, Developer shall not be authorized to
issue change orders on behalf of Owner. Developer may issue a change order which
(i) is required by a governmental authority (provided, however, that if
compliance with the order or direction of a governmental authority may be
accomplished in more than one manner, then selection of the manner of compliance
with the order of the governmental authority shall be subject to Owner's prior
written approval), or (ii) does not (a) extend the Completion Date, (b) involve
a change to the Budget of more than Fifty Thousand and No/100 Dollars
($50,000.00) for any one item or Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) in the aggregate, (c) materially and adversely affect the exterior
of the Improvements or otherwise materially and adversely affect any aspect of
the aesthetics of the
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Improvements. Notwithstanding anything else in this Paragraph 2.10 to the
contrary or any approvals by Owner of any such change orders, Owner shall not
under any circumstances be required to spend or disburse more than the total
Development Advance amount authorized by Owner pursuant to Paragraph 4.3 below.
2.11. PAYMENT APPLICATIONS. No disbursements shall be made by Owner
to Developer unless Developer shall have satisfied all of the following
conditions:
(a) DELIVERY OF DOCUMENTS. Developer shall provide Owner
with a fully executed original of each of the following documents (unless
otherwise indicated), in form and substance acceptable to Owner in the exercise
of its reasonable discretion:
(i) the Construction Contract, all other direct
contracts with respect to any work in connection with the Improvements which
have been executed as of the date of such Application for Payment (as defined in
Paragraph 2.11(e) below), and, if requested by Owner, each material subcontract
(as determined by Owner) with respect to the Improvements which has been
executed as of the date of such Application for Payment;
(ii) an assignment of permits, licenses,
franchises and authorizations executed by Developer, as assignor, in favor of
Owner, as assignee.
(iii) an assignment of project agreements
("ASSIGNMENT OF PROJECT AGREEMENTS") executed by Developer, as assignor, in
favor of Owner, as assignee, together with any consents to such Assignment of
Project Agreements to be executed in favor of Owner pursuant to the terms
therein; and
(iv) if requested by Owner, such other collateral
assignments in favor of Owner of all other project agreements to which Developer
is a party relating to the construction of the Improvements, together with
consents to such assignments as are deemed appropriate by Owner.
(b) CONSTRUCTION SCHEDULE. Developer shall have provided
Owner with the Construction Schedule, in form and substance acceptable to Owner
in the exercise of its reasonable discretion.
(c) UTILITIES. Developer shall have obtained, and
provided to Owner, evidence satisfactory to Owner that all utilities necessary
for the construction and operation of the Improvements are available and are
adequate to serve the Improvements for the intended use thereof and that all
conditions to Developer's ability to utilize such utilities have been satisfied.
(d) ENTITLEMENTS. Developer shall have obtained, and
provided to Owner, evidence satisfactory to Owner that all applicable
Entitlements required from time to time have been obtained, and all applicable
Entitlements required from time to time shall remain in full force and effect.
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(e) APPLICATION FOR PAYMENT. Each application for payment
shall be submitted on a form previously approved by Owner (the "APPLICATION FOR
PAYMENT") and shall include a duly executed Architect's certification in favor
of Owner that the Architect has examined such application for payment and has
determined that the work for which such application was made was performed, to
its best knowledge, in conformity with the Design Drawings and that the amount
contained in such application is proper. Developer shall not deliver any such
Application for Payment more than once per calendar month and each such
Application for Payment shall request not less than Twenty-Five Thousand and
No/100 Dollars ($25,000.00) (including retainage), provided, however, the last
disbursement may be in the amount of remaining funds in the Development Advance
(as defined in Paragraph 4.2 below). Each such Application for Payment shall
include the following:
(i) a statement of the amount of the requested
payment;
(ii) an itemized account of expenditures to be
paid or reimbursed from the requested disbursement, certified by an officer of
Developer to be true and correct expenditures which have already been paid or
are due and owing and for which no previous disbursement was made hereunder;
(iii) copies of invoices or purchase orders from
each payee with an identifying reference to the Improvements, which invoices or
purchase orders shall support the full amount of costs contained in the
requested disbursement;
(iv) a statement from Developer confirming that
the construction of the Improvements is proceeding in accordance with the
Construction Schedule, the Design Drawings and the Budget, certified by an
officer of Developer to be true and correct in all material respects;
(v) unconditional mechanic's lien waivers and
releases from the Contractor and each subcontractor or material supplier
providing work or materials for the Improvements which was the subject of the
immediately preceding Application for Payment (on such form as may be required
by Owner or Owner's title insurer for the Improvements);
(vi) a conditional lien waiver and release
(conditioned solely upon payment) from the Contractor as to the current
Application for Payment; and
(vii) any other information or documentation Owner
shall reasonably require.
(f) NO DEFAULT. No Event of Default or no event which,
with the giving of notice, the passage of time, or both, would constitute an
Event of Default, shall exist under this Agreement as of the date of Developer's
Application for Payment, or as of the date of disbursement, which disbursement
shall be made by Owner within ten (10) calendar days of Owner's receipt of an
Application for Payment.
(g) INSURANCE. All insurance required hereunder shall
remain in full force and effect.
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(h) PROPERTY LOCATED OFF-SITE. Each Application for
Payment containing a request for funds to pay for any item which is not then
located on the Real Property shall specifically note the fact that the item(s)
in question are located off-site, and Owner may decline to disburse funds in the
exercise of Owner's reasonable discretion with respect to the same unless and
until Owner has received all documentation required by Owner to assure Owner of
its ownership interest therein.
2.12. INSPECTIONS AND CONSTRUCTION PUNCH LIST. Developer shall
conduct periodic inspections of the Work as necessary to process Applications
for Payment or as may be necessary to monitor compliance of the Work with the
requirements of the Design Drawings, the requirements of the Construction
Schedule and the requirements of any applicable laws, codes, ordinances and
regulations. Prior to processing Developer's final Application for Payment,
Developer shall conduct a thorough inspection of the Improvements, shall prepare
a detailed "punch list" which shall state any items which require installation
or repair and shall name the party responsible for undertaking such maintenance
or repair. Developer shall be responsible for ensuring that all punch list work
is promptly and properly completed.
2.13. FINANCIAL RECORDS. If and when requested by Owner, Developer
shall provide to Owner detailed financial records relating to the costs incurred
by, on account of or for the benefit of Owner in connection with the development
and construction of the Improvements. All such financial records and reports
shall be prepared in such form and detail as Owner may reasonably require.
2.14. PROTECTION AND SAFETY. Developer shall take such reasonable
actions as are necessary to maintain adequate protection of the Improvements and
other property at the site or adjacent thereto from damage, injury or loss, and
shall coordinate with the Contractor in taking all reasonable precautions for
the safety of persons performing work on the Improvements or visiting the
construction site for any purpose in connection with the development of the
Improvements. Developer shall require the Contractor and all subcontractors to
comply with all applicable provisions of federal, state and local safety laws
and building codes and standards.
2.15. AS-BUILT SURVEY. Upon completion of construction of the
Improvements, Developer shall, at Developer's sole cost and expense, provide
Owner with an as-built survey showing the Improvements (the "AS-BUILT SURVEY").
3. REPRESENTATIONS AND WARRANTIES.
3.1. DEVELOPER'S REPRESENTATIONS AND WARRANTIES. Developer hereby
represents and warrants the following for the benefit of Owner as of the
Execution Date:
(a) Developer is experienced in managing the construction of
real estate projects similar in kind and nature to the Improvements and has all
the necessary licenses, if any, for the undertaking of such activities and the
performance of its obligations hereunder;
(b) The services performed by Developer and Developer's
employees, agents, representatives and subcontractors, shall be performed in a
prompt, diligent, competent,
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professional and workmanlike manner, and shall be performed by and under the
supervision of qualified personnel utilizing professionally accepted standards;
and
(c) All materials and equipment to be furnished for the
Improvements will be new unless otherwise agreed to in writing by Owner and
shall be of quality and workmanship equal to or better than the quality of the
materials and equipment incorporated in the Facility known as "Outlook Pointe at
Harrisburg", located at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000.
(d) Developer hereby represents and warrants that it is duly
licensed, qualified, and insured to provide the services (as defined herein) in
the state where the Real Property is located, and will at all times during the
Term of this Agreement, remain so licensed, qualified, and insured as required
under the terms of this Agreement.
(e) The Developer is a corporation duly organized, validly
existing and in good standing under the laws of the State of its incorporation,
the Developer has the power, corporate and otherwise, to own or lease and
operate its business and assets and conduct its business as such business is
conducted. The Developer is duly qualified to do business as a domestic or
foreign corporation and is in good standing in the State in which the Real
Property is located.
(f) The Developer has all necessary corporate power and
authority and has taken all corporate action necessary to enter into this
Agreement and to consummate the transactions contemplated hereby and to perform
its obligations hereunder. This agreement has been duly executed and delivered
by the Developer and is the legal, valid and binding obligation of the Developer
enforceable against the Developer in accordance with its terms.
(g) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will result (with or
without the giving of notice or the passage of time, or both) in (a) a breach
of, or a default under, any material term or provision of the Articles of
Incorporation or Bylaws of the Developer, each as amended to date and presently
ln effect, or any material agreement, lease, license, financial commitment or
other document or arrangement to which the Developer is a party or by which the
Developer is bound or affected, or (b) a violation by the Developer of any
statute, rule, regulation, ordinance, code, order, judgment, writ, injunction,
decree or award applicable to the Developer.
(h) Except for the Entitlements and other approvals and
permits contemplated in Paragraph 2.6 above, no other consent, approval or
authorization of, or declaration, filing or registration with any governmental
entity or any other person is required to be made or obtained by the Developer
in connection with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby.
(i) There is no action, suit, inquiry, proceeding or
investigation by or for any court or governmental or other regulatory or
administrative agency or commission pending or threatened against or involving
the Developer, which might undermine the validity of this Agreement or any
action taken or to be taken by the Developer pursuant to this Agreement or in
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connection with the transactions contemplated by this Agreement, or which would
have a material affect on this Agreement.
(j) All financial data concerning the Developer furnished to
Owner is true and correct and fairly presents the financial position of the
Developer as of the dates and for such periods represented. The Developer has
sufficient financial ability and resources to permit the Developer to perform,
when due, all of its obligations hereunder, and has provided satisfactory
evidence of such ability and resources to Owner.
4. COMPENSATION OF DEVELOPER.
4.1. REIMBURSABLE EXPENSES. Subject to the terms and conditions
under this Agreement, including, without limitation, the Application for Payment
procedures in Paragraph 2.11 above, Owner agrees to reimburse Developer for all
amounts paid to third parties on Owner's behalf pursuant to the fulfillment of
the terms of this Agreement, provided that the amounts paid by Developer are
consistent with the Budget, as it may be amended from time to time (the
"REIMBURSABLE EXPENSES").
4.2. DEVELOPMENT FEES. Owner shall pay to Developer Development
Fees in accordance with this Paragraph 4.2. For purposes of this agreement, the
term "DEVELOPMENT FEES" shall mean an amount equal to __________________
_________________________________________. The Development Fees shall be payable
by Owner to Developer in accordance with the following schedule: (i) an amount
equal to sixty-five percent (65%) of the Development Fees shall be paid on the
Execution Date, and (ii) the remaining Development Fees shall be paid no later
than the thirtieth (30th) day following Owner's receipt of written notice from
Developer that the Improvements have been substantially completed together with
all evidence of substantial completion required pursuant to the last sentence of
Paragraph 2.5 of this Agreement; provided, however, if Owner determines, in its
reasonable discretion, that the Improvements have not been substantially
completed, Owner shall have the right to withhold payment of the remaining
Development Fees until such time as the Improvements have, in Owner's reasonable
discretion, been substantially completed.
4.3. OWNER'S FUNDING OF LAND ACQUISITION COSTS AND IMPROVEMENT
COSTS. Subject to the provisions of this Agreement and the Lease, Owner agrees
to disburse up to but no more than the sum of ________________________________
______________________________ toward the total of (a) the cost of the
Improvements, inclusive of the accrual of rent with respect thereto as provided
under the Lease, all Reimbursable Expenses attributable for such Improvements,
and the Development Fees (collectively, the "DEVELOPMENT ADVANCE") and (b) the
costs associated with the acquisition of the Real Property (the "LAND
ACQUISITION COSTS"). The Development Advance shall not be increased for any
reason without the express written consent of Owner, which consent shall be at
the sole discretion of Owner, and Owner's approvals of any change orders as
contemplated in Paragraph 2.10 above shall not constitute a consent to increase
the Development Advance. Owner reserves the right to make disbursements of the
Development Advance directly to Developer, jointly to Developer and to its
vendors, subcontractors and materialman and/or directly to Developer's vendors,
subcontractors and materialmen. Owner reserves the right to pay
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the Land Acquisition Costs directly to the seller of the Real Property and to
other appropriate parties.
4.4. SATISFACTION OF INITIAL DISBURSEMENT CONDITIONS. The conditions
set forth in Paragraphs 2.11(a), (b), (c) and (d) above shall be satisfied by
Developer no later than the Execution Date, except as otherwise permitted by
Owner in Owner's sole and absolute discretion. Any such conditions not required
to be satisfied on or before the Execution Date shall be satisfied within ten
(10) calendar days after written request therefor made by Owner to Developer.
4.5. SHORTAGES. Owner shall have the right at any time and in the
reasonable exercise of Owner's judgment to determine whether the actual costs
for construction (including, without limitation, all accrual of rent with
respect thereto as provided under the Lease) of the Improvements are greater
than Owner has approved, and Developer shall, within ten (10) days after notice
from Owner that the Development Advance will be insufficient to fully complete
the Improvements and pay all costs for such completion, deposit with Owner cash
in the amount of the shortage. Interest shall be paid by Owner at prevailing
money market rates on amounts deposited with Owner pursuant to this Paragraph
4.5. Any cash deposited by Developer pursuant to this Paragraph 4.5 shall be
fully disbursed by Owner prior to disbursing any portion of the Development
Advance.
4.6. THIRD-PARTY SERVICER. Developer hereby acknowledges and agrees
that Owner may, at its election, require that any or all disbursements of the
Development Advance be made through a third-party disbursement and inspection
service. If Owner so elects, Owner shall provide written notice to Developer and
all reasonable costs and expenses relating to such third-party service,
including, without limitation, all administration and inspection charges, shall
be paid by Developer. Owner shall provide Developer with an invoice detailing
the costs, expenses and charges of such third-party service.
5. RESPONSIBILITIES OF OWNER.
5.1. COOPERATION. Owner shall reasonably cooperate with Developer by
executing any and all documents, agreements, contracts, permits, applications
and other documentation approved by Owner in accordance with the terms of this
Agreement and reasonably necessary in connection with procuring the necessary
Entitlements and accomplishing the planning and design of the Improvements.
Whenever pursuant to this Agreement the consent or approval of Owner is
required, Owner shall either designate a representative to act on its behalf or
use its best efforts to examine documents submitted by Developer and to render
decisions pertaining thereto promptly, in order to avoid unreasonable delay in
the progress of the work hereunder. In the event Owner fails to approve or
consent to any matter requiring its consent, Owner shall notify Developer in
writing in reasonable detail the reasons for such disapproval together with a
statement of what, if anything, could be done to obtain the consent or approval
of Owner. Unless indicated otherwise, wherever in this Agreement the consent or
approval of Owner is required, Owner agrees not to unreasonably withhold such
consent or approval.
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5.2. COSTS. Owner shall not be responsible for any costs in excess
of the Development Advance or that are not expressly provided for herein,
reflected in the approved Budget or otherwise approved in advance by Owner.
6. TERMINATION.
6.1. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "EVENT OF Default" under this Agreement:
(a) Developer shall fail to observe, perform or comply with
any material term, covenant, agreement or condition of this Agreement which is
to be observed, performed or complied with by Developer hereunder, including,
without limitation, failure to develop or construct the Improvements in
substantial accordance with this Agreement, including, without limitation, the
Improvement Plans or the Budget, if such failure shall continue uncured for
fifteen (15) business days after Owner gives Developer written notice of any
failure and specifies the nature of such failure. If such failure is not
susceptible of being cured within said fifteen (15) business day period, such
failure shall not constitute an Event of Default if Developer commences curative
action within said fifteen (15) business day period and thereafter diligently
prosecutes such curative action to completion; provided, however, no such
default shall continue for more than ninety (90) calendar days from Developer's
deemed receipt of a notice of default from Owner.
(b) Developer shall commit any fraud, misrepresentation,
breach of fiduciary duty, willful misconduct or intentional breach of a
provision of this Agreement;
(c) Developer or Guarantor shall (i) apply for or consent in
writing to the appointment of a receiver, trustee, or liquidator of all or
substantially all of its assets; (ii) file a voluntary petition in bankruptcy or
admit in writing its inability to pay its debts as they become due; (iii) make a
general assignment for the benefit of creditors; (iv) file a petition or an
answer seeking reorganization or an arrangement with creditors or take advantage
of any insolvency law; or (v) file an answer admitting the material allegations
of a petition filed against it in any bankruptcy, reorganization, or insolvency
proceeding; or if any voluntary petition in bankruptcy or similar proceeding
shall be filed against Developer or Guarantor seeking its reorganization,
liquidation, or appointment of a receiver, trustee, or liquidator for all or
substantially all of its assets, and such petition shall not be dismissed within
sixty (60) calendar days after the filing thereof; or
(d) The occurrence of a default under the Lease which is not
cured within any applicable cure period provided for therein.
(e) Developer fails to make prompt payment to the contractor,
subcontractors, laborers, or material suppliers for labor performed on or
materials furnished with respect to the Improvements; provided, however,
Developer or Owner shall have the right, but not the obligation, to protest the
amount or payment of any such liabilities; provided, further, that in the event
of any such protest by Developer, Owner shall not incur any expense because of
any such protest and Developer shall diligently and continuously prosecute any
such protest. In the event Owner pays such liability directly to the applicable
third party, Developer hereby agrees to pay
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to the Owner an amount equal to the amount of such payment by Owner, which
payment by Developer shall be due and payable to Owner on or before the
thirtieth (30th) calendar day following Developer's deemed receipt of a written
notice from Owner (pursuant to the notice provisions under this Lease) that
Owner has made such payment. Developer shall have the right, but not the
obligation, to protest the amount or payment of such liability (in whole or in
part) against the applicable third-party recipient of such payment, and Owner
will cooperate fully with Developer in regard to such protest; provided,
however, that in the event of any protest by Developer, Owner shall not incur
any expense because of such protest; provided, further Developer shall
diligently and continuously prosecute any such protest. To the fullest extent
permitted by law, Developer agrees to protect, indemnify, defend and save
harmless Owner, its Affiliates and their respective directors, officers,
shareholders, agents, and employees from and against any and all foreseeable or
unforeseeable liability, expense, loss, costs, deficiency, fine, penalty,
interest, or other damages (including, without limitation, punitive or
consequential damages, reasonable attorneys' fees, and expenses) arising out of
or due to any protest by Developer pursuant to this Paragraph 6.1(e), regardless
of whether such items arise from the sole liability of Owner or from the joint
liability of Owner and Developer. Upon receiving notice of or information
concerning any suit, claim or demand asserted by a third party that Owner
believes is covered by the indemnity set forth in this Paragraph 6.1(e), Owner
shall give Developer notice of same. Developer shall defend Owner against such
matter at Developer's sole cost and expense with legal counsel reasonably
satisfactory to Owner; or
(f) Developer persistently disregards or fails to comply with
any law or ordinance relating to the Improvements or the completion of the
Improvements; or
(g) Developer suspends or fails to perform work relating to
construction of the Improvements for fifteen (15) consecutive business days for
any reason other than acts of God or other causes or events described in
Paragraph 8.14 below or such work ceases for sixty (60) consecutive calendar
days for any reason; or
(h) Developer is enjoined by any court or other government
agency from constructing the Improvements or performing any obligations
hereunder and such injunction continues unreleased and unstayed for forty-five
(45) consecutive calendar days; or
(i) Developer or Guarantor is dissolved or liquidated or
merged with or into any other person or entity; or for any period of more than
ten days Developer or Guarantor ceased to exist in its present form and (where
applicable) in good standing and duly qualified under the laws of the
jurisdiction of its incorporation or formation, or ceased to be authorized to do
business and in good standing in the State in which the Real Property is
located; or all or substantially all of the assets of the Developer or Guarantor
are sold or otherwise transferred.
6.2. TAKE OVER. If an Event of Default occurs, Owner shall have the
right, but not the obligation, without relieving Developer of its obligation to
pay any shortage pursuant to Paragraph 4.5 above, to assume control of the
construction activities needed to meet any governmental conditions for issuance
of a certificate of occupancy for the Improvements.
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6.3. TERMINATION UPON EVENT OF DEFAULT. In addition to any other rights
or remedies available to Owner under the Lease, at law or in equity, Owner shall
have the right to terminate this Agreement upon written notice to Developer upon
the occurrence of an Event of Default.
6.4. ACTIONS SUBSEQUENT TO TERMINATION. Within thirty (30) days after
any termination of this Agreement, Developer shall promptly account for and
deliver to Owner any monies due Owner under this Agreement and shall deliver to
Owner or to such other person as Owner shall designate in writing, to the extent
permitted by applicable law, (i) all permits, plans, licenses, warranties,
contracts and other documents pertaining to the Improvements and in the
possession or control of Developer; (ii) all insurance policies, bills of sale
or other documents evidencing title or rights of Owner; and (iii) any other
materials, supplies, equipment, keys, books and records pertaining to this
Agreement or to the Improvements, whether in possession of Developer or a party
engaged by Developer pursuant to the provisions hereof. Developer shall also
furnish all such information, take all such other action and shall cooperate
with Owner as Owner shall reasonably require in order to effectuate an orderly
and systematic termination of Developer's duties and activities hereunder. All
personal property (including capital equipment, hardware, trade and non-trade
fixtures, materials and supplies) acquired pursuant to this Agreement, whether
paid for directly by Owner or by way of reimbursement to Developer, shall at all
times be the personal property of Owner and shall remain on the Real Property
after such termination.
7. INSURANCE PROVISIONS.
7.1. GENERAL INSURANCE REQUIREMENTS. All insurance provided for in this
Agreement shall be maintained under valid and enforceable policies issued by
insurers or reinsurers of recognized responsibility, licenses (either admitted
or not admitted) to do business in the State of Pennsylvania, having a general
policyholders rating of not less than "A-11", and a financial rating of not less
than XII in the then most current Best's Insurance Report, and an overall
performance rating of "excellent." Any and all policies of insurance required
under this Agreement shall name Owner as an additional insured and shall be on
an "occurrence" basis. In addition, Owner shall be shown as the loss payable
beneficiary under the property insurance policy maintained by Developer pursuant
to Paragraph 7.3 below. All policies of insurance required herein may be in the
form of "blanket" or "umbrella" type policies which shall name Owner and
Developer as their interests may appear and allocate to the Real Property the
full amount of insurance required hereunder. Original policies or satisfactory
certificates from the insurers evidencing the existence of all policies of
insurance required by this Agreement and showing the interest of Owner shall be
filed with Owner prior to the commencement of the term of this Agreement and
shall provide that the subject policy may not be canceled except upon not less
than thirty (30) calendar days prior written notice to Owner. Originals of the
renewal policies or certificates therefor from the insurers evidencing the
existence thereof shall be deposited with Owner not less than thirty (30)
calendar days prior to the expiration dates of the policies. Any claims under
any policies of insurance described in this Agreement shall be adjudicated by
and at the expense of Developer or of its insurance carrier, but shall be
subject to joint control of Developer and Owner. Developer shall not commence
any work or perform any services, or permit any other person to commence any
work or perform any services, under this Agreement or in connection with the
development or construction of the Improvements until Developer obtains and
maintains all insurance required to be obtained by Developer under this
Agreement, and requires all others performing work in
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connection with the Improvements to obtain all insurance such persons are
required to obtain and maintain pursuant to this Agreement. Developer shall
obtain and provide to Owner evidence of insurance carried by all persons
contracting with or for the benefit of Developer or Owner in connection with the
development and construction of the Improvements.
7.2. DEDUCTIBLE AMOUNTS. The policies of insurance which Developer
is required to provide or to cause to be provided under this Agreement will not
have deductibles or self-insured retentions in excess of Fifty Thousand Dollars
($50,000).
7.3. INSURANCE TYPES. Developer shall maintain insurance coverage
which complies with the following minimum requirements:
(a) WORKERS' COMPENSATION. Developer shall comply with all
legal requirements regarding worker's compensation, including any requirement to
maintain workers' compensation insurance against claims for injuries sustained
by Developer's employees in the course of their employment.
(b) COMPREHENSIVE GENERAL LIABILITY INSURANCE. Developer shall
maintain comprehensive general liability insurance, on an "occurrence" basis,
with deductibles approved by Owner, with a combined single limit of Five Million
Dollars ($5,000,000) (or current limit carried, whichever is greater, including
coverage for bodily injury or death, property damage, personal injury (employee
and contractual liability exclusions deleted), products and completed operations
(renewed annually for ten (10) years after completion of the construction of the
Improvements), blanket contractual liability, owner's protective liability,
broad form property damage, cross liability and severability of interest
clauses, personal injury for groups of offenses A, B and C with exclusion (c)
deleted, and explosion, collapse and underground hazards (X,C.U).
(c) COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE. Developer
shall maintain comprehensive automobile liability insurance covering all owned,
hired, leased and non-owned vehicles, including automobiles, trucks and all
other motor vehicles utilized by Developer in connection with the Improvements
and the services required or performed pursuant to this Agreement, with a
combined single limit for bodily injury and property damage of Five Million
Dollars ($5,000,000) or current limit carried, whichever is greater.
(d) IMPROVEMENTS INSURANCE COVERAGE. Developer shall maintain
or cause to be maintained an "all risk" builder's risk policy covering loss or
damage to the Improvements, and including, without limitation, loss or damage to
materials in storage and while in transit. The policy shall include as insured
property scaffolding, false work and temporary buildings located at the Real
Property, in the amount of the full replacement cost thereof, together with loss
of earnings coverage insuring against delays in occupancy of the Improvements.
(e) BOILER AND MACHINERY INSURANCE. Developer shall maintain
or cause to be maintained boiler and machinery insurance covering loss or damage
to covered objects when such fixtures and equipment, if any, are connected and
ready for use.
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7.4. CONTINUED COVERAGE. Notwithstanding the expiration or early
termination of this Agreement, Developer shall maintain insurance coverage such
that the insurance provisions of this Agreement shall survive such expiration or
early termination of this Agreement and Developer's insurance carriers shall
remain obligated under the policies for all occurrences that arise that are
within the scope of the requirements of insurance coverage set forth in this
Agreement.
7.5. WAIVER OF SUBROGATION. Owner and Developer hereby waive any
rights each may have against the other on account of any loss or damage
occasioned to Owner or Developer, as the case may be, arising from any risk
covered by the insurance maintained under this Agreement. Owner and Developer
each, on behalf of their respective insurance companies, waive any right of
subrogation that such insurance company may have against Owner or Developer, as
the case may be. The foregoing waivers of subrogation shall be operative only so
long as available in the State of Pennsylvania and so long as such waivers do
not invalidate any such policy. Such waivers of subrogation shall not extend to
Owner's or Developer's rights (i) to the proceeds of such insurance, or (ii) to
payment for damages as set forth in Paragraph 8.11 below in connection with the
indemnification of Owner or Developer therein contained.
8. MISCELLANEOUS PROVISIONS.
8.1. ASSIGNMENT. Developer acknowledges the relationship of trust
and confidence created by this Agreement between Developer and Owner, and
covenants and agrees that it will not voluntarily or involuntarily, directly or
indirectly, sell, assign, hypothecate, pledge or otherwise transfer or dispose
of all or any portion of its interest in this Agreement to any third party
without the prior written consent of Owner, which may be withheld in Owner's
sole discretion. Any sale of controlling interest in Developer to any third
party without the prior written consent of Owner shall be deemed an assignment
of this Agreement. Any attempted sale, assignment, hypothecation, pledge or
other transfer without such consent shall be void.
8.2. AMENDMENT. This Agreement may be amended from time to time
only by a writing executed by Owner and Developer.
8.3. NOTICES. All notices, demands, certificates, requests,
consents, approvals and other communications required or provided by this
Agreement shall be in writing and shall be sent by personal delivery or by
either (i) United States registered or certified mail, return receipt requested,
postage prepaid, or (ii) Federal Express or similar generally recognized
overnight carrier regularly providing proof of delivery, addressed as follows:
If to Owner: ____________________________________
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: President and General Counsel
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With a copy to: Xxxxxxx & Xxxxxxxx
0000 Xxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx.
If to Developer: BCC Development and Management Co.
c/o Balanced Care Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Vice President Development
With a copy to: Balanced Care Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: Legal Department
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Any notice so given by mail shall be deemed to have been given as of the date of
delivery (whether accepted or refused) established by U.S. Post Office return
receipt or the overnight carrier's proof of delivery, as the case may be,
whether accepted or refused. Any such notice not so given shall be deemed given
upon receipt of the same by the party to whom the same is to be given. Such
addresses may be changed by notice to the other parties given in the same manner
as provided above. If any party is not an individual, notice may be made to any
officer, general partner or principal thereof.
8.4. ATTORNEYS' FEES. In any judicial action between the parties to
enforce any of the provisions of this Agreement or any right of any party under
this Agreement, regardless of whether such action or proceeding is prosecuted to
judgment and in addition to any other remedy, the unsuccessful party shall pay
to the prevailing party all costs and expenses, including reasonable attorneys'
fees and charges, incurred therein by the prevailing party.
8.5. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and negotiations between the parties with
respect thereto.
8.6. GOVERNING LAW. This Agreement shall be enforced, governed by,
and construed in accordance with the laws of the state in which the Real
Property is located.
8.7. SEVERABILITY. If any term or provision of this Agreement is
declared by a court of competent jurisdiction to be invalid or unenforceable,
then the remainder of this Agreement, including the application of such term or
provision to persons or circumstances other than those
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to which it is held invalid or unenforceable, shall not be affected thereby;
provided, however, if the foregoing would produce a result which is clearly
contrary to the intentions of the parties as reflected in this Agreement, then
the invalid or unenforceable term or provision shall be deemed modified to the
extent necessary in the court's opinion to render such term or provision
enforceable consistent with the intentions of the parties and, as so modified,
such portion and the remainder of this Agreement shall continue in full force
and effect.
8.8. NO WAIVER. No failure or delay of a party in the exercise of
any right given to such party hereunder or by law shall constitute a waiver
thereof, nor shall any single or partial exercise of any such right preclude
other further exercise thereof or of any other right. The waiver by a party of
any breach of any provision hereof shall not be deemed to be a waiver of any
subsequent breach thereof, or of any breach of any other provision hereof.
8.9. NO JOINT VENTURE. Owner shall not and does not by this
Agreement in any way or for any purpose become a partner of Developer in the
conduct of its business, or otherwise, or a joint venturer of or a member of a
joint enterprise with Developer, or an Employer of Developer, it being
understood and agreed between Owner and Developer that Developer is and shall
be, for all purposes of this Agreement, an independent contractor of Owner.
Developer agrees that, upon request of Owner, Developer shall execute and
deliver to Owner a quitclaim deed in recordable form pursuant to which Developer
remises, releases and forever quitclaims to Owner the Real Property and the
improvements located thereon (other than its leasehold interest therein arising
out of the Lease). Owner shall have the right to record such quitclaim deed in
the Official Records of the county in which the Real Property is located.
8.10. SUCCESSORS AND ASSIGNS. Subject to the provisions of Paragraph
8.1 above, this Agreement shall bind and inure to the benefit of the parties and
their respective successors and assigns.
8.11. INDEMNITY. To the fullest extent permitted by law, each of the
parties agrees to indemnify, hold harmless and defend the other party (the
"INDEMNITEE") (through legal counsel reasonably approved by the Indemnitee) from
any and all liability, loss, cost, expense, damage and attorneys' fees resulting
from or arising out of the negligent acts or omissions, willful misconduct or
Events of Default, of such indemnifying party, its staff members, employees,
agents and representatives, in connection with the performance by such
indemnifying party of its services under this Agreement, including, without
limitation, any claim, liability, loss or expense arising out of the use,
release, discharge, storage, handling, transportation or clean up of any toxic
or hazardous wastes, substances, materials, or underground storage tanks, in the
construction of the Improvements.
8.12. ADDITIONAL DOCUMENTS. Developer and Owner will, whenever and
as often as requested by the other party hereto, execute or cause to be executed
all such instruments or agreements as may be reasonably necessary in order to
carry out the purpose of this Agreement and shall take such other actions as are
reasonably necessary to carry out the intent and purpose of this Agreement.
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8.13. SUBSURFACE CONDITIONS. Developer acknowledges that Owner is
relying on Developer for the identification of all subsurface conditions and
aspects of site geology that should be taken into account in the design and
construction of the Improvements.
8.14. FORCE MAJEURE. Any time limits provided for either party's
performance under this Agreement shall be extended for and throughout such
period of time as such performance is prevented or delayed due to strikes,
lockouts, acts of government, acts of God, wars, riots, civil insurrection or
abnormal force of elements or other causes (except financial) beyond the
parties' reasonable control and which the affected party could not have
reasonably foreseen and provided against; provided, however, that in no event
shall any such extension be deemed to have occurred unless (a) the party whose
performance is delayed shall have given notice to the other party within ten
(10) days after the occurrence of the event of delay, setting forth the facts
giving rise to such extension, and (b) the applicable period or periods of time
within which such other party may exercise its rights hereunder shall be
commensurately extended. The party whose performance is delayed shall give
prompt written notice to the other party of the cessation of the event or
condition giving rise to such delay.
8.15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
IN WITNESS WHEREOF, this Agreement is executed as of the day and year
first above written.
"DEVELOPER" "OWNER"
BCC DEVELOPMENT AND _____________________________
MANAGEMENT CO., _____________________________
a Delaware corporation
By:_______________________________ By:_________________________________
Name:_____________________________ ____________________________________
Title:____________________________
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