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HomeMy WebLinkAbout1988-03-28 88-170 ORDERCOUNCIL ACTION 88-1]0 Item/Subject.• Authorizing Execution of Option Agreement with Downtown Development Group - Parcel B-4 Responsible Department: Planning and Community Development Council order 89-405 passed on October 26, 1989 designated Downtown Development Group (Alan Baldwin, John Rohman, Sheldon Hartstone) as Tentative Developers of former Urban Renewal Parcel B- 4, an approximate 12,000 BE parcel located next to the Masonic Temple on Main Street. Tentative Developer status was extended to February 25, 1988 and expired on that date. The plans have not changed from those originally submitted and approved. Developer, by letter dated March 11, 1988, requested an option to purchase and develop a three story 10,200 SF office/retail building at a minimum construction cost of $560,000 ($55 per square foot) with 18 on site parking spaces, and proposed a purchase price of $1 per BE (which the City received for sale of the Maliseet site and Epstein site). The Developer proposes to commence construction during the Spring of 1988 and complete within 18 months. The proposed Option Agreement requires not less than a three level structure above the Main Street elevation containing not less than 10,200 square feet of office and/or retail space at aminimum construction cost of not less than $560,000. The Option would r nin effect until March 31, 1989, requires a purchase price of $12,000, a 12 month option fee of $480 (the present policy of 1/310f 18 of the selling price per month), preliminary plan submission no later than (NIT) September 30, 1988 and City approval NLT October 15, 1988, final plan submission MLT February 15, 1989 and City approval NLT March 15, 1989, start of construction within three months after transfer of title and completion within 18 months after commencement of construction. The City Council should be aware that the offering price of $1/SF i less than market value, but is consistent with previous UR Parcel o sales, and that the normal Option has a term of 6 months extendable for a x additional s months whereas the subject is for a term of 12 months. This allows for start of construction after the projected completion date of the proposed parking garage thereby leaving the City in control of the parking until after the garage is completed. Recommendation - approval of option Agreement if Council agrees to purchase price. The Council Community Development Committee is scheduled to review the proposed Option Agreement prior to the Council meeting. Manager's Casements: C* ��M1K1-O( WdCV��hWIDUNO� SU'kL _ City Manager 88 -UO Introduced by Councilor Shubert, March 28, 1988 CITY OF BANGOR (TITLE.) (orD¢rtAuthorizing Execution .o..f.....opc Agree_m_ent .... with Downtown Development Group - Parcel B-4 By the City Coyaa(1 Of 04 Ctty Of Balser: ORDERED, - TBAT the City Manager is hereby authorized and directed, o behalf of the City of Bangor, to execute an Option Agreement, a copy of which is on file in the Office of the City Clerk, with Downtown Development Group for the purchase and redevelopment of former Urban Renewal Parcel B-4. 88-100 ORDER In City Council March 28,1988 g�} 'Passed - Title, d4) MR24 P487 Authorizing Execution of Option TMTMhh W - REI:E.JEC ..,.c! n� . Agreement with Down Town . ..l F CITY 0 BANGOk Ci y clef. Agreement with Down Town Development CITY CLERK Group Parcel - 84 Associated Information: N/A 88-170 2 Finance Director v \ My s -o is rtor Item_ Page_ oY_ OPTION AGREEMENT FOR PURCHASE OF URBAN RENEWAL PARCEL B-4 THIS AGREEMENT is made this day of , 1988, by and between the CITY OF BANGOR, a municipal corpora Gaon located in the County of Penobscot, State of Maine (hereinafter "CITY'), and Do4Atown Development Group , a -Maine having a place of bus 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 Renduskeag Stream Urban Renewal Disposition Parcel B4 , 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 theprivate development of the Premises in accordance with the provisions of this Option Agreement and the Development Plan would befit 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; NOW, THEREFORE, in consideration of the $ 480.00 paid to the CITY by the DEVELOPER in accordance with Section A.2. below 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 an exclusive option to purchase the Premises £or development of not less than a three (3) level structure above the Main Street elevation on[a inl nq nos less than 30 200 square feet o£ office and/oe retail gce a[ a imam construction cost of no[ less than $560.00.00 in accordance with the terms and conditions of this option Agreement. The purchase price of the Premises shall be $12 00 , to be paid to the CITY in cash or by Certified or Bank Check at t e 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 Pr'ce of O on. This Option Agreement shall remain in a ect from the date etireo£ until Martin 31 . 1989. The non-refundable option fee for this period is -T 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 request, for a period not to exceed a 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 B 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. Conveyance and Evidence ofp'Within 30 days, or such other time as the parties may ag tee upon, of the CITY 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 o 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 itwilissue a title insurance policy insuring marketable title, iE the CITY is unable to tender marketable title after using such reason- able son - able efforts, the CITY shall refund to the DEVELOPER the fees paid under this Option Agreement, if the DEVELOPER so requests, or the DEVELOPER may Choose t0 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. S. 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 plans. Such entry shall be at DEVELOPER'S sole risk and expense, and the DEVELOPER fromants and agrees to indemnify,defend, and hold the CITY harmless any claims for personal injury or property damage suffered by reason of entry upon the Premises by DEVELOPER, its agents or employ- ees, or anyone acting on the DEVELOPER'S behalf. Prior to any entry hereunder, the DEVELOPER shall first obtain liability insurance for this purpose in such amount(s) 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, andthe 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. section B. 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 a orporated into 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-) on October 26 , 1907, and plans entitled , prepared by Webster-Baldwin-Rohman-Day- Ca9rn ate , copies of which Risen 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. Plana shall conform to and be submitted in accordance with the pro- visions of subsection 2. below. 2. Approval of Plana. No.construction or renovation will be allowed without [he prior submission and approval of preliminary plans, final plans, and specifications. 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 City Manager after which the r 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 plana shall be approved unless said plans have been prepared by a duly registered architect, as defined by Title 32 of the Maine Revised Statutes Annotated, unless otherwise accepted by the City. The following submissions shall be required: a a. Preliminary Plan - The intent of the. Preliminary Plan shall be to outline thegeneralscope 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: (1) Site Plan - The site plan shall be drawn to a sca—).e e£ one (1) inch equals twenty (20) feet wherever practical. The plan should include] 4a1 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) Theon site parking layout, and traffic flow, if any. (a) 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, or con- tours, both existing and proposed. (h) Existing and new building outlines, including overlaps such as canopies or basement extensions. (2) Floor Plan - The scale of the floor plan shall be Yeft to the discretion of the architect. This plan shall show general room 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. (3) Elevations - A suitable cross-section or elevation of the building shall be provided, either in the form of an artist's rendering of the building or a cross-section of the building. Where site grade plays an important part in the layout of multi-level structures, the City shall reserve the right to request cut -away elevations showing the relationship of. floors to surrounding grades. Materials to be used for exterior treatment shall be indicated. b. Final Plans and Specifications - 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 be accurate and all materials to 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, boring logs or material guarantees. C. No later than September 38, 1988, the DEVELOPER shall meet the City council and submit for its approval preliminary plans as specified in Section B.2. above. I£ the City Council deems 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, 1989, the DEVELOPER shall set with the City Council nd submit for its approval final plans and related drawings, specific- ations, and documents in the form specified i Section 8.2. above. IE 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 Final 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. If the final plans, a modified by the proposed change, still conform to the requirements of Section B.1. hereof, 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 (30) days after its submission and notify the DEVELOPER of its decision. 4. Construc[�on Pro mess Sdhetlule. Concurrently with the submission of Che f of al plans, the EEVOe rFw 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 (18) months from the commencement of construction, o such later date as the City Council may approve. Nothing herein shall be construed to extend, limit, or otherwise effect the time limits prescribed in any building permit or Planning Board approval. 5. Permit Requirement. DEVELOPER shall obtain, and shall provide satisfactory evidence thereof to the CITY, every permit, license, and governmental approval necessary for commencement and completion of the development including, but not limited to, Bangor Planning Board approval if required. 6. Evidence Of�Financin . The DEVELOPER shall provide the CITY with wr tten,L legally 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 inthe 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. 7. Construction Contract. The DEVELOPER shall provide the CITY with acert f c� a[� by the DEVELOPER and its general contractor, if any, for construction of the total development certi- fying to the existence of such a contract for development in accor- dance with the provisions of Section B.1., B.2., B.3. and B.4. above. 8. Performance Bond. The DEVELOPER or the DEVELOPER'S general contractor al s pnT oast writhe 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., B.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 Ti) THE CITY'S CONVEYANCE OF THE PREMISES TO 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 land: 1. Deed Covenants. 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 specifically pre- scribed herein for each. None of the provisions and remedies below, including the Reversion specified in Section C.10.0 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 Deed. 2. Use Restriction. The DEVELOPER agrees for itself, and every acin interest to the Premises, o any part thereof, and the Deed shall successor 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, orregulations 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 law(s) 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 inany 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 -discrimination. The DEVELOPER agrees for itself, and every successor in inte[est [o 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 cenant 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. 4. 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 or privilege of exemption from municipal taxation of the Premises 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 otherreason whatsoever, and that the City of Bangor, in its capacity as a taxing authority, may assess all taxes a ould 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 o r 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 euccessor�n Interest to the Premises, or any part thereof, and the Deed shall contain express covenants ants 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: a. Development of the project as acondominium pursuant to the Maine Condominium Act (33 M.R.S.A. Sec. 1601- 101 at seg.). b. Leases of portions of the development. 6. Land SpeculatiOn Res t r ictiOn. The DEVELOPER represents and agrees that its purchase of C efi Peemi es s 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 R.I. 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 0.12. below. 7. CITY'S Approval of Transfer Prior to CMDletion. The DEVELOPER recognizes that the qualifications 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 becauseofqualifications and identity that the CITY is 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 0.12. below, will not make or create, or suffer to be made or created, any total o partial sale, assignment, conveyance, lease, trust, power, or transfer n any other mode or form, of, or with respect to, this option Agree- ment, the Premises, or any part thereof, or interest therein, nor shall any contract or agreement to do any of the same be enteredinto 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 to fulfill 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 DEVELOPER 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 a amount representing the actual cost to the DEVELOPER of the Premises and the improvements, if any, there- tofore made thereon by it; the intent of this pro- vision being to preclude assignment of the agreement, or transfer of the Premises, for profit prior to the CITY'S issuance of the Certificate of Completion under Section C.12., and to provide that 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 beauthorizedpursuant to this subparagraph c. and such consideration shall, to the extent that 1t is in excess of the amount so authorized, belong and forthwith be paid to the CITY. - In The foregoing provisions of this Section CA. 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 Maine; 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. a. Mortgages Prior to Completion of Improvements. a. Prior to the completion of the improvements as cer- 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 oroperation of law, or permit any encumbrance or lien to he made onr 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 ortgagefinancing it proposes to enter into with respect to the Premises, and of any encumbrance or lien that has been created an or attached to the Premises, whether by voluntary act of the DEVELOPER or otherwise. D. The holder of any mortgage authorized 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 to construct or complete the improvements or to guarantee such construction or impletion. No covenant or any other provision in any deed shall be construed so to obligate any such holder. However, neither such holder nor its suc- cessors or assigns shall be authorized to devote the Premises orany part thereof to any uses, or tocon- 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.B. shall termi- nate upon the CITY'S issuance of the Certificate of Completion under Section C.12. below. 9. Notice of Default to Mortgagee. Whenever the CITY shall deliver or make any notice or demand to the DEVELOPER with respect to any breach o 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 to conserve or 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 on 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 manner provided in Section C.12. of this Option Agreement. Such certification shall, if so requested by such holder, provide that any remedy of the CITY'S with aspect 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 or 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 D. If after the DEVELOPER'S default under this Option Agreement, the holder of any mortgage on the Premises of part thereof does notexercise the option to con- struct orcomplete the improvements relating to the Promises 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 orunder- 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 cu mortgage debt and securing a 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 withrespect to the foreclosure; the net expenses, exclusive of general overhead, incurred by such holden 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 CM 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 or breach, and to a lien upon the Premises or 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 or condition secured by such mortgage,,including but not limited to the Federal Housing 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 Prioe to Can letion. In the event that prior to the CITY'S issuance of the Cer[ f¢cate of Completion under Section C.12. below: - a. The DEVELOPER, or its acr in interest o sign, shall default inorits obligations with 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 so; or b. The DEVELOPER, Or its successor in interest Or assign, shall fail to pay real estate taxes or 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 lien, or any other unauthorized encumbrance or lien to attach, and such taxes o 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 (30) days after the CITY'S written demand to do so; or C. The DEVELOPER, or its successor in interest o assign, shall make any assignment .for the benefit of creditors, orreceiver o similar officer shall be appointed to take charge of all orany 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 or 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.7. 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 -anter 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 oraction by the DEVELOPER specified in subparagraphs a., b., c. and d. of Section C.10. hereof, and failure 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 in and 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, howevecy 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 authorized by Section C. hereof, and (2) any rights or interests provided in Section C. for the protection of tho. 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 awaiver of such rights or to deprive it of or limit such rights in anyway, The express Conditions, covenants, and restrictions 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. Di3p O31tlOn UVon ReyQC510 n. DDOn the revesting in [h8 CITY of.title to the Premises or any part thereof as provided in Section C.10., the CITY shall in accordance with State _law u its best efforts to resell the Premises or part thereof, subject to any exist- ing mortgage liens, as soon and in such manner as the CITY shall find feasible and consistent with the objectives of developing the Premises for retail or professional office use, to a qualified and responsible party or parties, as determined by the CITY, who will assume the obligation of making or completing the improvements or such other improvements in their stead as shall be satisfactory to the CITY. 15 Upon the resale of the Premises, the proceeds thereof shall be applied: 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 or part thereof (but lees 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 or part thereof at the time of revesting of title thereto in the CITY or to discharge or prevent from attaching or being made any subsequent acumbrances 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 or completion of the improvements or any part thereof on 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 or part thereof and the cash actually invested by it in making any of the improvements on the Premises o 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 Cam lotion. Promptly after completion of the improvements 'Mto wv[ the provisions of this Option Agreement, the CITY will furnish the DEVELOPER with an appropriate instrument so certifying. Such certification shall be in such 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., C.]., C.B., C.9., C.10., and C.11. above. IT, 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. Severability. If any provision of this Option Agreement is determined to be invalid 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 other 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. to the case of the DEVELOPER, is addressed to or delivered personally to the DEVELOPER, b. in the case of the CITY, is addressed to or delivered personally to the CITY, c/o City Manager, City Ball, 73 Harlow street, Bangor, Maine 04401, r to such other persons or addresses as the parties may designate in writing to the other. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first written above. CITY OF BANGOR By witness Edward A. Barrett Its City Manager Witness STATE OF MAINE Penobscot, as. am 17 Then personally appeared the above-named Edward A. Barrett, n his capacity as the City Manager of the City of Bangor, and acknowledged the foregoing instrument to be his free act and deed in such capacity and the free act and deed of the City of Bangor. Before me, Printed Name: Justice of the Peace Notary Public Attorney at Law STATE OF MAINE Penobscot, as. MWW Then personally appeared the above-named in his capacity as I of and acknowledged the foregoing instrument to be his free act and deed in such capacity and the free act and deed of the Before me, Printed Name: Justice of the Peace Notary Public Attorney at Law