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HomeMy WebLinkAbout1989-03-27 89-140 ORDERr;oonml Acton Den 3/20/89 Item No. 89-140 Authorizing Extension of Option Agreement With ItemSiubject Downtown Development Group - Parcel B-4 gaspomible Oapartmenc Economic and Community Development PAmmenhry: The architect for this development, Webster/Baldwin/Rohman/Day/ Czarneicki, has presented a major revision of the preliminary plan to the City and after a meeting with the Community and Economic Development Committee has met with City Staff to discuss further changes in response to concerns raised by the Committee and Staff at the time of the presentation of the revised plans. After discussing the time table to fulfill requirements under the Op Hon Agreement prior to closing, applicant requested a 90-day extension from the March 31, 1989 termination date for the option agreement to June 30, 1989. This will give the applicant's architect more time to rework preliminary plans which would have to be approve prior to their proceeding with final plans, financing, construction documents and a contract for construction of the proposed building in accordance with other terms of the Option Agreement. Because of the major change from the original plan submitted and the on-going discussions between the developer and the Ciyt, which have been dilligently pursued by the applicant, Staff has recommended t At this extension of the option agreement be grants twain xm Menager� sCommmta. -n .. Ci,YCirY Mam��� Amxiated Inktmetion: Budget Approval: nD' Lapel Apprael: ctyswaitw Introduced For OPasta00 QFirst Reading Pape_ of ❑Referral 89-140 Avdpmd to CounNor Sosnaud, Match 27, 1989 _ CITY OF BANGOR (TITLE.) @rain __.Authorizing Extension of Option Agreement with .... Downtown Development Group - Parcel B-4. ................ v ------------_:.._ _.. _. _._ ...... n By W Guy ChMMU Of City OfBanoer. ORI)MEDe 'THAT the Option Agreement, a copy of which being on file i the office of the City Clerk, between the City of Bangor and Downtown Development. Group for the purchase and redevelopment of former Urban Renewal Parcel B-4 be extended in accordance with the provisions of Section A.2of the aforementioned agreement until June 30, 1989. ED E ' O R D E R Yn pty Quril i8ed�2],1�9 - Title, ......uiPx le..... cox aapeato CounciEman OPTION AGREEMENT FOR PURCHASE OF URBAN RENEWAL PARCEL B-4 THIS AGREEMENT is made this 5th day of April, 1988, by and between the CITY OF BANGOR, a municipal corporation located in the County of Penobscot, State of Maine (hereinafter 'CITY'), and Downtown Devel oDment Group , a Maine Partnership having a place of business n Bangor, County of Penobscot, State of Maine (hereinafter "DEVELOPER"). WITNESSETH: WHEREAS, the CITY has received the DEVELOPER'S proposal for the development of the real property known as Kenduskeag Stream Urban Renewal Disposition Parcel 894 , located on Main Street in Bangor (hereinafter "the Premises"), being approximately 12,000 square feet, and being more particularly identified on Exhibit A attached hereto and incorporated herein by reference;. and WHEREAS, in accordance with its Development Plan, the CITY has determined that the private development of the Premises in accordance with the provisions of this Option Agreement and the Development Plan would best serve the interests of the citizens of the CITY; and WHEREAS, the CITY has determined that the DEVELOPER'S proposal will serve the interests of the citizens of Bangor; NOWT THEREFORE, inconsideration of the $ 480.00 paid to the CITY by the DEVELOPER in accordance with Sect on�low and of the mutual conditions and covenants contained herein, the parties agree as follows: Section A. GRANT OF OPTION - 1. Grant of Option. The CITY grants and the DEVELOPER accepts n exclus lie opts option to purto purchase Cha Premises for development of not less than a three (31 level at[uc[ure above Che Main Street of containin not less than 10 200 s oats feet of office and o[ retell space at a min mum conacruction cast of not ess than 560 00 00 in accordance wit the.— G terms and rood rtrons of this Option Agreement. The purchase price of the Premises shall be $12,000:00 , to be paid to the CITY in cash or by Certified or Sena Check at the time of closing on the sale of the Premises, less any amounts paid by the DEVELOPER to the CITY pursuant to this Option Agreement. 2. 'Term and Price of Option. This Option Agreement shall remain in effect from the date hereof until March 31 1989. The non-refundable option fee for this period is 480.00 which shall be paid to the CITY in cash or by Certified'or Bank Check at the time this Option Agreement is executed. , The City Council may extend this option Agreement, Upon. the DEVELOPER'S written request stating the reasons therefore, for a period not to exceed an additional six (6) months. The fee for an extension, which shall be payable in full, before or at the time the extension is executed, shall be $ 40.00 per month. All option fees paid to the CITY under this Agreement shall be applied towards the purchase price upon the conveyance of the Premises to the DEVELOPER; provided, however, that the option fees shall be forfeited to the CITY if the DEVELOPER does not purchase the Premises in accordance with the terms and conditions of this Agree- ment. During the term of this Option, the CITY shall have the continuing right to operate the premises as a public parking lot. 3. Exercise of Option. To exercise its right to purchase the Premises, the DEVELOPER shall so notify the CITY in writing before the expiration of this Option Agreement and any extension thereof. 4. Conve ante and Evidence of Title. Within 30 days, or such other time as the parties may agree upon, Of the CITY'S receipt of the DEVELOPER'S notice under Section A.3. above, the CITY shall convey good and clear marketable title, free and clear of all liens and en- cumbrances, except easements for existing sewer lines as shown on Exhibit °A-, to the Premises to the DEVELOPER by Municipal Quitclaim Deed, subject however to the Conditions, restrictions, and covenants contained in Sections B. and C. below. Within 30 days of the date of this Option Agreement, or such other time as the parties may agree, the CITY will furnish to the DEVELOPER evidence of its title in the form of an abstract of title prepared in accordance with the Maine Title Standards, or a title insurance commitment issued by a title. insurance company,licensed to do business in the State of Maine, that it will issue a title insurance policy insuring marketable title. Sf the CITY is uunable to tender marketable title after using sucr reason- able n - able efforts,,the CITY shall refund to the DEVELOPER the feespaid under this Option Agreement, if the DEVELOPER so requests, or the DEVELOPER may choose to accept the CITY'S Municipal Quitclaim Deed, in which case the DEVELOPER shall assume any risks associated with the title. In no event shall the CITY'S obligations to tender marketable title, and to use reasonable efforts to determine the source of title, extend beyond the term of this Option and any duly executed extension thereof as set forth in Section A.2. above. 5. Right of entry. During the option period the DEVELOPER shall have the right, on reasonable notice to and consent by the City Engineer, to enter upon the Premises with persons and machines for the preparation of feasibility studies and construction plana. In addition, during the option period the DEVELOPER shall have the right to enter upon the premises with persona and machines to erect and maintain signage on the premises, provided however that the location, size and content of any such sign shall be subject to the approval of the City Manager. Such entry shall be at DEVELOPER'S sole risk and expense, and the DEVELOPER covenants and agrees to indemnify, defend, and hold the CITY harmless from any claims for personal injury or property damage suffered by reason of entry upon the Premises by DEVELOPER, its agents or employ - sea, or acting on the DEVELOPER'S behalf. Prior to any entry hereunder, the DEVELOPER shall first obtain liability insurance for this purpose i such amounts) of coverage satisfactory to CITY with the CITY as an additional named insured, and shall provide the CITY with written evidence thereof. All work shall be done in a manner that causes the least possible disturbance to the Premises, and the DEVELOPER covenants and agrees that the exercise of its rights under this paragraph shall be done in a workmanlike manner and that DEVEL- OPER shall repair any damage to the Premises resulting from the exercise of these rights. CONDITIONS PRECEDENT TO THE CITY'S CONVEYANCE OF THE PREMISES TO THE DEVELOPER Before the CITY'S conveyance of the Premises the DEVELOPER shall complete the following: 1. Submission of Plans. The development and use of the Premises as ncorporated nto the DEVELOPER'S final plan shall be in substantial conformance with the scope of development described in Section A.I. above and the DEVELOPER'S presentation to the CITY'S Design Review and Site Plan Review Committee (hereinafter "Committee") n October 26 , 1987, and plans entitled "Proposed Building - Main St. Bangor, ME. - Lot B-4 - DEVELOPER - DOWNTOWN DEVELOPMENT GROUP - BANGOR, ME., prepared by Webster-Baldwin-Rohman-Da -Czeen dated October 26, 1987, cop es of which piano are on file in the office of the Department of Planning and Community Development, City Hall, 73 Harlow Street, Bangor, Maine. Any development and use of the Premises shall comply with the Codes and Ordinances of the City of Bangor. All terms used in this paragraph shall be defined in accordance with the provisions of the Zoning Ordinance of the City of Bangor and any applicable amendments thereto or replacements thereof. Plans shall Conform to and be submitted in accordance with the pro- visions of subsection 2. below. 2. A roval of Plans. No construction or renovation will be allowed without the pr lor—suSmise ion and', approval of preliminary plans, final plans, and specifications. L: All plans will be submitted to the City Manager or staff designated by the City Manager. All plans and revisions to plans shall be reviewed by City staff desig- nated by the vCity Manager after which the City Manager shall submit the plans along with his recommendations to the City Council.. Said plans shall be reviewed and approved by the City Council. No plans shall- be approved unless said plans. have 'base prepared by a duly registered architect, as defined by Title 32 of the Maine Revised Statites,Annotated, unless otherwise accepted by the City. The following submissions shall be required: 4 a. Prelim ins [v Plan - The intent of the Preliminary Plan aha 11 De to outline thegeneral scope of development or redevelopment, and to convey to the City Council sufficient information to determine the character of the work to be performed. The Preliminary Plan shall contain: (3) Site Plan - The site plan shall be drawn to a scale of one (1) inch equals twenty (20) feet wherever practical. The plan should include: ,,(a) Property lines and dimensions. /(b) Adjacent features, such as abutting streets, buildings or properties. �(c) Existing and proposed paved areas,. including the type of pavement and Principal dimensions. ,�(d) The on-site parking layout, and traffic flow, if any. '.. (2) (31 (e) Planting areas, including general size and variety of trees and shrubs. /_(f All existing and proposed utilities, both above and below ground, including ser- vice connections and drainage facilities. / (g) Principal elevations, grades, o - tours, both existing and proposed. /(h) Existing and new building outlines, including overlaps such as canopies or basement extensions. Floor Plan - The scale of the floor plan shall be left to the discretion of the architect. This plan shall show general'eoom layouts and use, including entrances and exits. Dimensions may be approximate and the overall floor area for each floor shall be indicated. The elevation of each floor shall, be. indicated. ^O Elevations - A suitable cross-section or elevation of the building shall he provided, either in the form of an artist's rendering of the building or a -section of the building. Where site grade plays an important part in the layout of multi-level structures, the City shall reserve the rightto request cut -away elevations showing the relationship of floors to surrounding grades. Materials to be used for exterior treatment shall be indicated. 'K' b. PinelPlans and SpeciE'Cations - After approval of the preliminary plan, the developer shall then proceed with the preparation of final plans and specifications. Said plans and specifications shall show sufficient details necessary to insure proper construction. All dimensions and elevations shall he accurate and all materials t0 be used in the Structural or architectural treatment of the facility shall be outlined in complete detail. If, in the opinion of the City, there is a doubt regarding the structural adequacy of any facility, the developer shall provide all required back-up data, including structural computations, baring logs Or material guarantees. C. NO later than September 30, 1988, the DEVELOPER shall meet the City Council anA�submit for its approval preliminary plans as specified in Section 8.2. above. If the City Councildeems revisions to the prelim- inary plans to be necessary or appropriate, the plans must be so revised and submitted to the City Council for its approval no later than October 15, 1988. NO later than February 15, 19891989, the DEVELOPER shall meet with the C tYi Council and submit for its approval final plans andrelateddrawings, specific- ations, and documents in the form specified in Section 8.2. above. if the City Council deems revisions to the final plans to be necessary or appropriate, the plans must be so revised and sub- mitted to the City Council for its approval no later than March 15, 1989. 3. Amendment to Pinel Plans. If the DEVELOPER desires to make any substantial alterations in the Final plans after their approval by the City Council, the DEVELOPER shall submit the proposed change in writing to the City Council for its approval. I£ the final plans, as modified by the proposed change, still conform to the requirements of Section B.I. hereo E,_the City Council shall not unreasonably withhold, approval of the proposed change.The City Council shall either approve or disapprove the proposed change within ten (10) days after. its submission and notify the DEVELOPER of its decision. d. Construction Pro rtes Schedule. Concurrently' with the submission of [he f nal plans, t e DEVELOPER shall submit a construc- tion progress schedule to the City Council for its approval. The progress schedule shall provide for the commencement of construction within three (3) months after closing and completion of construction within eighteen 118) months from the commencement of construction, or such later date as the .City Council may approve, provided however that in no event Shall such construction be commenced prior to February 1, 1989. Nothing herein shall be construedto extend, limit, or otherwise effect the time limits prescribed in any building permit.or Planning Board approval.' -$l Permit Regui Cement. DEVELOPER shall obtain, and Shall provide satisfactory evidence thereof to the CITY, every permit, license, and governmental approval n ssary for commencement and completion of the development including, but not limited to, Bangor Planning Board approval if required. 6. Evidence of Pinancing. The DEVELOPER shall provide the CITY with written, leg- ly binding commitments, in a form satisfactory to the City Solicitor, from acceptable lending institutions or govern- mental agencies for both interim construction financing and long-term financing of the total proposed development as it is detailed in the plans referred to and approved under Sections B.I. and B.2. above. The commitments shall include, in a form approved by the City Solicitor, direct guarantees to the CITY, by the lending institutions Or governmental agencies, that the construction will be completed i accordance with the final plans in the event the DEVELOPER is unable to perform the construction. 2. Construction Contract. The DEVELOPER shall provide the CITY with d Cer[rflcate executed by the DEVELOPER and its general contractor, if any, for construction of the total development certi- fying to the existence of such acontract for development in accor- dance with the provisions of Section 8.1., B.2.,. B.3. and 8.4. above. B. Performance Bond. The DEVELOPER or the DEVELOPER'S general contractor shall post with the CITY both a performance bond and a labor and material payment bond issued by a corporate surety licensed to do business in the State of Maine, each in a penal sum equal to the total estimated cost of the total proposed development, to secure performance of the obligations contained in Sections B.1., B.2., 8.3. and B.4. above. The DEVELOPER or the DEVELOPER'S general contractor shall submit to the CITY a copy of the bonds and written evidence of payment of the required premiums. The bonds must remain in effect until the CITY'S issuance of the Certificate of Completion under Section C.12. below. In lieu of the above .referred -to bond, the DEVELOPER may, at its option, name the CITY as an additional obligee on the bond posted by the general contractor with the DEVELOPER. If the DEVELOPER acts as its own contractor and does not retain a general contractor, the CITY shall not require the DEVELOPER to post a performance bond. - Section C'. CONDITIONS SUBSEQUENT TO THE CITY'S CONVEYANCE OF THE PREMISES TD THE DEVELOPER Except as otherwise specified herein, the following express conditions, covenants, and restrictions shall be expressly incorpo- rated Into the CITY'S Deed to the DEVELOPER, and shall run with the lana: 1. Deed Cave nants. It is intended and agreed, and the Deed shall so expressly provide, that the express conditions, covenants, and restrictions provided in Section C. hereof shall be covenants •running with the land" and that they shall be binding, to the fullest extent permitted by law and equity, for the benefit and in favor of, and enforceable by, the CITY and any successor in interest to the Premises or any part thereof for the time periods specificallypre- scribed herein for each. None of the provisions and remedies below, including the Reversion specified in Section C.10., shall be construed SO as to limit the DEVELOPER'S liability to the CITY for the DEVEL- OPER'S breach of any of its obligations under this Option Agreement and the Used. 2. Use ResctThe DEVELOPER agrees for itself, and o every su ess� ntriion. to the Premises, or any part thereof, and the Deed shall contain express covenants on the part of the DEVELOPER for itself, and its successors and assigns, that the Premises and any improvements which may be or may become located thereon shall be used, constructed, developed, occupied and maintained in accordance with the laws, ordinances, or regulations of the State of Maine and the City of Bangor, as the same may now or hereafter be in effect. In the event that both the State and the City have lawis) governing the same Sub- ject matter, DEVELOPER agrees that the Premises and any improvements which may be or may become located thereon shall be governed by the most restrictive of these law(s). The Developer further agrees that any structure, or the occupancy thereof, constructed on the Premises shall not unreasonably interfere in any way with the operation, main- tenance , repair or replacement of all existing sewer lines on the Premises. In addition to other requirements herein, the Developer shall not construct any structure on the Premises without receiving prior written certification by the City Engineer that said structure shall not unreasonably interfere with said sewer. 3. Anti -disc a imine[ ion. The DEVELOPER agrees for itself, and every successor n ii ntS[ t to the Premises, or any part thereof, and the Deed shall contain express covenants on the part of the DEVELOPER for itself, and its successors and assigns, that the DEVELOPER, and its successors and assigns, shall not discriminate upon the basis of race, color* creed, national origin, sex, or physical handicap in the sale, lease, or rental, or use or occupancy of the premises or any improvements thereon. This covenant shall run in perpetuity.. This covenant against discrimination shall be binding for the benefit and in favor of, and enforceable by, the CITY and the United States of America against the DEVELOPER and every successor in interest to the Premises or any part thereof. 1 ' A -Property Taxes. The DEVELOPER agrees for itself, and every successor in interest to the Premises, or any part thereof, and the Deed shall contain express covenants on the part of the DEVELOPER for itself, and its successors and assigns, that the Premises shall be subject to all taxes and assessments as may be imposed by any govern- mental authority upon the Premises and any buildings, structures, or improvements which may be or may become located thereon. It is the intent of the parties hereto, and DEVELOPER hereby agrees that it does hereby waive, for itself and any successors in interest, all right o privilege of exemption from municipal taxation of the Promises and any buildings, structures, or improvements which may be or may become located thereon, as may be available by reason of DEVELOPER'S or such successors' legal status, or for any other reason whatsoever, and that the City of Bangor, in its capacity as a taxing authority, may assess all taxes as would otherwise be applicable to the Premises, buildings, structures or improvements which may be or may become located thereon, as if such exemption did not exist. DEVELOPER further agrees, for itself and any successors in interest, to pay any assessments on or before the date upon which they become due and payable. The CITY agrees that DEVELOPER, or its successors in interest, shall have the right to contest the amount of such taxes or assessments in the manner prescribed by law. 5. Subdivision Restriction. The DEVELOPER agrees for itself, and every suc cesaor rn interest io the Premises, or any part thereof, and the Deed shall contain express covenants on the part of the DEVEL- OPER for itself, and its successors and assigns, that the Premises shall not be subdivided without the CITY'S express written consent. For the purpose of this paragraph, the following alone shall not be deemed to constitute a subdivision: Development of the project as condominium pursuant to the Maine Condominium Act (33 M.R.S.A. Sec. 1601- 101 at seg.). Leases of portions of the development. 6. Land Speculation Restriction:.. The DEVELOPER represents and agrees that its purchase owe Premises and its other undertakings pursuant to this Option Agreement are and will be used for the purpose of development of the Premises in accordance with Section B.1. above, and not for speculation in land holdings. This covenant shall termi- nate upon the CITY'S issuance of the Certificate of Completion under Section C.12. below. - -T. CITY'S Approval of T[anafe[ Prior to Com lesion. The DEVELOPER recognizeathat the qualrf ice t ions and identity of the DEVELOPER, and its principals or any successors in interest, are of particular Concern to the CITY. The DEVELOPER further recognizes that it is because of such qualifications and identity that the CITY i entering into this Option Agreement and is willing to accept and rely on the obligations of the DEVELOPER for the faithful performance of all undertakings and covenants to be performed by the DEVELOPER. Therefore, the DEVELOPER represents and agrees for itself, its succes- sors and assigns, that, except only by way of security for the purpose of obtaining financing necessary to enable the DEVELOPER or any approved successor in interest to perform the obligations under Section B hereof, the DEVELOPER has not made or created and, until the CITY issues the Certificate of Completion under Section C12. below, -. will not make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance, lease, trust, power, or transfer in any other mode or form, of, or with respect to, this Option Agree- ment, the Premises, orany part thereof, o interest therein, nor shall any contract or agreement to do any of the same be entered into without the CITY'S prior written approval. The CITY shall be entitled to require as conditions to any such approval that: a. Any proposed transferee shall have the qualifications and financial responsibility, determined by the CITY by written evidence submitted to it, to be necessary and adequate tofulfill the obligations undertaken under Section B, hereof; b. Any proposed transferee, by instrument in writing satisfactory to the CITY and in a form recordable in the Penobscot Registry of Deeds, shall for itself and its successors and assigns, and expressly for the benefit of the CITY,have expressly assumed all of the obligations of the OP.VELOPP.R under this Option Agreement and agreed to be subject to all of the conditions and restrictions to which the DEVELOPER is subject under Section C. hereof; and C. The consideration payable for the transfer by the transferee or on its behalf shall. not exceed an amount representing the actual cost t0 the DEVELOPER of the Promises and the improvements, if -any, there- tofore made thereon by it; the intent of this pro- vision being to preclude assignment of the agreement, r transfer of the Premises, for profit prior to the CITY'S issuance of the Certificate of Completion under Section C.12., and to providethat if any such assignment or transfer is made the CITY shall be entitled to increase the purchase price to the DEVEL- OPER by the amount that the consideration payable for the assignment or transfer is in excess of the amount that may be authorized pursuant to this subparagraph c. .and such consideration shall, to the extent that it is in excess of the amount so authorized, belong and forthwith be paid to the CITY. 10 The foregoing provisions of this Section C.7. notwithstand- ing, the. DEVELOPER may assign this Option Agreement and all rights and duties herein, subject to the terms and conditions hereof, to a devel- opment entity hereafter organized and qualified by DEVELOPER under the laws of the State of Maines provided, however, that DEVELOPER Shall retain an active involvement in the entity and the entity shall assume, in a writing satisfactory to the CITY, the obligation to complete, in the manner provided for in this Option Agreement, the contemplated improvements on the Premises. furthermore, the entity must submit evidence satisfactory to the CITY that it has the quali- fications and financial responsibility necessary to perform such obligation. All covenants contained in this Section C.7, shall termi- nate upon the CITY'S issuance of the Certificate of Completion under Section C.12. below. Mortgages Prior to Completion of Improvements. a. Prior to the completion of the improvements ascer- tified by the CITY, neither the DEVELOPER nor any successor in interest to the Premises or any part thereof shall engage in any financing or any other transaction creating any mortgage or any other - encumbrance or lien upon the Premises, whether by express agreement or operation of law, or permit any encumbrance or lien to be made on or attached to the Premises, except for the purpose of obtaining funds necessary for making improvements and additional funds not to exceed the purchase price of the Premises paid by the DEVELOPER to the CITY. The DEVELOPER shall notify the CITY in advance of any mortgage financing it proposes to enter into with respect to the Premises, and Of any encumbrance or lien that has been created on or attached to the Premises, whether by voluntary act of the DEVELOPER or otherwise. b. The holder of any mortgage authors mad by. this Option Agreement, including any such holder who obtains title to the Premises or any part thereof as a result of foreclosure proceedings or action in lieu thereof, shall not be obligated by the provisions of this Option Agreement t0 construct or complete the improvements or to guarantee such construction o completion. No covenant or any other provision in any deed shall be construed so to obligate any such holder. However, neither such holder nor itssuc- essors or assigns shall be authorized to devote the Premises or any part thereof to any uses, or to con- struct n-struct any improvements thereon, other than those uses or improvements provided or authorized in this Option Agreement. 11 All covenants contained in this Section C.8. shall'ferml- nate upon the CITY'S issuance of the Certificate of Completion under Section C.12. below. 9. Notice Of Default to MOPCOaaee. a. Whenever the CITY shall deliver or make any notice or demand to the DEVELOPER with respect to any breach or default by the DEVELOPER in its obligations or cove- nants under this Option Agreement, the CITY shall at the same time deliver to each holder of record of any mortgage authorized by this agreement a copy of such notice Or demand. Each such holder shall, insofar as the rights of the CITY are concerned, have the right at its option to cure such breach or default and to add the cost thereof to the mortgage debt and the lien of its mortgage. However, if the breach or default is with respect to construction of the improvements, such holder may not undertake or con- tinue the construction or completion of the improve- ments beyond the extent necessary toconserveo protect improvements or construction already made without first having expressly assumed in writing the Obligations to the CITY to complete, in the manner provided in this Option Agreement, the improvements n the Premises or the part thereof to which the lien r title of such holder relates, and having submitted evidence satisfactory to the CITY that it has the qualifications and financial responsibility necessary to perform such obligation. Any such. holder who shall properly complete the improvements relating to the Premises or applicable part thereof shall be - entitled, upon written request made to the CITY, to a certification by the CITY to such effect in a provided in Section C.12. of this Option Agreement. certification shall, if so requested by such holder, providethat any remedy of the CITY'S with respect to revesting of title to the Premises because of failure Of the DEVELOPER to cure any default with respect to the construction of the improvements on other parts of parcels of the Premises, or because of any other default in on breach of this Option Agree- ment by the DEVELOPER, shall not apply to the part or parcel of the Premises to which such certification relates. _.. 12 b. If after the DEVELOPER'S default under this Option Agreement, the holder of any mortgage on the Premises or part thereof does not exercise the option to con- struct or complete the improvements 'relating to the Premises or part thereof covered by its mortgage or to which it has obtained title within 60 days after the holder has been notified of the default or under- takes completion of the improvements but does not complete construction within the period as agreed upon by the CITY and such holder, the CITY shall have the option of paying to'the holder the amount of the mortgage debt and securing an assignment of such debt and of the mortgage. If ownership of the Premises or Part thereof has vested in such holder by way of foreclosure or action in lieu thereof, the CITY shall be entitled, at its option, to a conveyance to it of the Premises or part thereof upon payment to such holder of an amount equal to the sum of the mortgage debt at the time of foreclosure or action in lieu thereof less all appropriate credits, including those resulting from collection and application of rentals received during foreclosure proceedings; all expenses with respect to the foreclosure; the net expenses, exclusive of general overhead, incurred by such holder in and as a direct result of the subsequent management of the Premises; the cost of any improve- ments made by such holder; and an amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage debt and such debt had continued in existence until such acquisition by the CITY. C. In the event of the DEVELOPER'S default in its obligations under any mortgage or other instrument creating an encumbrance upon the Premises or part thereof prior to completion of improvements, the CITY may at its option cure such default or breach. In such case the CITY shall be entitled, in addition to and without limitation upon any other remedy to which it shall be entitled by this Option Agreement, oper- ation of law, or otherwise, to reimbursement from the DEVELOPER or successor in interest of all costs and expenses incurred by the CITY in curing such default r breach, and to a lien upon the Premisesor part thereof to which the mortgage, encumbrance, or lien relates, to secure such reimbursement. d. For the purposes of this and other Paragraphs of this Option Agreement, the term "holder' in reference to a mortgage shall be deemed to include any insurer or guarantor of any obligation orconditionsecured by such mortgage, Including but not limited to the Federal Rousing Commissioner, the Administrator of Veterans Affairs, and any successor in office of either such official. 13 All covenants contained in this Paragraph 9 shall terminate upon the CITY'S issuance of the Certificate of Completion under Section C.12. below, - 10. Title Reversion Prf or m Completton, in the event that pefde to the CITYrE JA an,of tha Cart zficate of Completion under Section C.12. below: a. The DEVELOPER, or its successor in interest or shall default in or violate its obligations wisign, th respect to the construction of the improvements (including the nature and the dates for the beginning and completion thereof), or shall abandon or sub- stantially suspend construction work, and any.. such default, Violation, abandonment., or suspension is not cured, ended, or remedied within three (3) months (or six (6) months, if the default is with respect to the date for completion of the improvements) after written demand by the CITY to do sap or b. The DEVELOPER, or its successor in interest or - assign, shall fail to pay real estate taxes o assessments on the Premises or any part thereof when due, or shall place thereon any encumbrance or lien unauthorized by Section C. hereof, or shall suffer any levy or attachment to be made, or any material - men's or mechanics' lien, or any other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been paid, or the encum- brance or lien removed or discharged or provision made, satisfactory to the CITY, for such payment, removal, or discharge, within thirty 130) days after the CITY'S written demand to do so; or C. The DEVELOPER, or its successor in interest or sign, shall make any assignment for the benefit of creditors, or a receiver or similar officer shall be appointed to take charge of all or any substantial part of the DEVELOPER'S property, and such assignment or appointment is not dismissed or released within thirty (30) days of the date the assignment o appointment is made; or - d. There is, in violation of Section C. hereof, any transfer of the Premises or any part thereof, or any change in ownership of the DEVELOPER, except as - expressly Permitted in Section C.Z above, and such violation shall not be cured within thirty (30) days after written demand by the CITY to the DEVELOPER: 14 then the CITY shall have the right to re-enter and take possession of the Premises and to terminate and revest in the CITY the entire estate conveyed by the Deed to the DEVELOPER as if no Deed had ever been given; it being the intent of this provision, together with other provisions of Section C. hereof, that the conveyance of the Premises to the DEVELOPER shall be made upon, and that the Deed shall contain, a condition subsequent to the effect that in the event of any default, failure, violation, or other action or inaction by the DEVELOPER specified in subparagraphs a., b., C. and d. of Section C.lo. hereof, and f411ure on the part of the DEVELOPER to remedy, end, or abrogate such default, failure, violation, or other action or inaction, within the period and in the manner stated in such subparagraphs, the CITY at its option may declare a termination in favor of the CITY of the title, and of all the rights and interests inand to the Premises, and that such title and all rights and interests of the DEVELOPER, and any assigns or successors in interest to and in the Premises shall revert to the CITY; provided, however, that such condition subsequent and revesting of title in the CITY shall always be subject to and limited by, and shall not defeat, render invalid or limit in any way: (1) the lien of any mortgage authorised by Section C. hereof, and (2) any rights or interests provided in Section C. for the protection of the holders'of such mortgages. The CITY shall have the right to institute such actions or proceedings as it may deem desirable for effectuating the purposes of this Section C.10. including also the .right to execute and record or file among the public land records in the office in which the Deed is recorded a written declaration of the termination of all the right, title and interest of the DEVELOPER, its successors in interest and assigns, in the Premises and the revesting of title in the CITY; provided, however, that any delay by the CITY in instituting or pros- ecuting any such actions or proceedings or otherwise asserting its rights under Section_C. hereof shall not operate as a waiver of such rights or to deprive it of or limit such rights in any way. The express conditions, covenants, and reatrictiona con- tained in this Section C.10. shall terminate upon the CITY'S issuance: of the Certificate of Completion under Section C.12. below. 11. OispoaitfOn UPO2 Reyer8ion. Upon the recasting in the CITY of title to the Premises or any part thereof as provided in Section C.lo., the CITY shall in accordance with State law use its best efforts to resell the Premises or part hereof, subject to any exist- ing mortgage liens, as soon and in such manner as he CITY shall find feasible, to a qualified and responsible: party or parties, as deter- 'ned by the CITY, who will assume the obligation of making or comple- ting the improvements or such other improvements in their stead as shall be satisfactory to the CITY. 15 be applied: Upon the resale of the Premises, the proceeds thereof shall ' a. First, to reimburse the CITY for: all costs and expenses Incurred by the CITY including but not limited to salaries of personnel in connection with the recapture, management, and resale of the Premises r part thereof (but less any income derived by the CITY from the Premises or part thereof); all taxes, assessments, water, sewer and other utility charges with respect to the Premises or part thereof; any Payments made or necessary to be made to discharge any encumbrances or liens existing on the Premises r part thereof at the time of revesting of title thereto in the CITY or to discharge or prevent frau attaching or being made any subsequent encumbrances r liens due to obligations, defaults, or acts of the DEVELOPER, its successors or assigns;any expendi- tures made or obligations incurred with respect to the making orcompletian of the improvements or any. part thereof an the Premises or part thereof; and any amounts otherwise owing to the CITY by the DEVELOPER and its successor or assign; and b. Second, to reimburse the DEVELOPER, its successor or assign, up to the amount equal to: (1). the sum of. the purchase price paid by it for the Promises o part thereof and the cash actually invested by it. in making any of the improvements on the Premises or part thereof; less (2) any gains or .income withdrawn or made by it. The CITY shall retain as its property any; balance remaining after such reimbursement. The express conditions, covenants, and restrictions con- tained in this Section C.11. shall terminate upon the CITY'S issuance of the Certificate of Completion under Section C. 12. below. 12. Certificate of Com lotion. Promptly af tet completion OF the improvements n accordance wit the provisions of this Option Agreement, the CITY will furnish. the DEVELOPER with an appropriate. Instrument so certifying. Such certification shall beinsuch form as will enable it to be recorded in the Penobscot Registry of Deeds. The CITY'S issuance of the Certificate of Completion will constitute con- clusive proof of the satisfaction and termination of the express conditions, covenants, and restrictions contained in Sections C.6., CA., C.S., C.9., C.10., and C.I1. above. 16 If the CITY shall refuse or fail to .provide such certifi- cation, the CITY shall, within thirty (30) days after written request by the DEVELOPER, provide the DEVELOPER with,a written statement indicating in adequate detail in 'what respects the DEVELOPER has failed to complete the improvements in .accordance with the provisions of this Option Agreement and what measures will be necessary to obtain such certification. 13. Severabilit . If any provision of this Option Agreement is determined to be rove d or unenforceable under law/ it shall not affect the validity or enforcement of the remaining obligations or portions hereof. 14. Notice. Any notice under this Option Agreement by either party to the otter shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and a. in the case of the DEVELOPER, is addressed to or delivered personally to the DEVELOPER, c/o Sohn N. ROAman, Partner, Downtown Develo ant Grou c o Webster-Baldw n-Ro man-DarDevelo ec P.A. 44 Central Street, Bangor, Mav a 04401. b. in the case of the CITY, is addressed to or delivered personally to the CITY, C/o City Manager, City Hall, 73 Harlow Street, Bangor, Maine 04401, r to such other persons or addresses as the parties may designateinwriting to the other. IN WITNESS WHEREOP, the parties hereto have set their hands th'e. day and year first written above. CITY OF BANGOR - By Witness Edward A. Barre t Its City Manager �s//�,� DOW OE VI IEryinJ\qpM !T GROOF Wt[nesa Jo n M. Rohman Partner 17 STATE OF MAINE Penobscot, as. Ci l s 1988 Then personally appeared the above -named -Edward A. Barrett, inhis capacity as the City Manager of the City of Bangor, and acknowledged the foregoing instrument to be his free act and deed i such capacity and the free act and deed of the City of Bangor. Before me, -52 L=�� Printed Name: M.. f£It-Non aty J e _ Public Attorne Attorney at Law STATE OF MAINE Penobscot, as. 4 : f , 1988 Then personally appeared the above-named John M. Eckman, in his capacity as Partner of Downtown Development Group an ac nowl edged the foregoing instrument to be his free act and deed in such capacity and the free act and deed of. the Partnership. Before me, LA' Printed Name: /q. /%( (? j/. ( (f 'G e ce __..... N04aFy-�Pvp3ic- Attorney at. Law ' \ Sp `� RFFT - EP.�BTT "A"