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HomeMy WebLinkAbout1986-03-24 86-123 ORDER86-123 Introduced by Councilor Willey, Harcn 24, 1986 CITY OF BANGOR (TITLE) (DrUr. ....... Authorizing.Exacutionof_opt on Agreement By Ow City Coueail of de 0lev ofBaayor. ORDERED, THAT the City Manager is hereby authorized and directed, on 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 Fransway Realty Company for the purchase and redevelopment of the proposed development site identified on the attached map as "Proposed Development Site*. In City Council March 24,1986 duecilor M ca[t]by abstained to oonfiict passed CS y Clerk 86-123 ORDER Title, Authorizing Msecution of Option ............... 4..... Agreement -Nith:Fraasway Fealty Co. ...................................... Introduced and filed bya CohnciLran EXHIBIT A V �O �FA O�� J•J 86-123 Mq�N l \ y F POSED. ,DEVELO W �� SITE O e SR D STREET Bangor, the center of Maine—the Ciamnay to Maine's North Woods and Seashore Rewraps 0 4-] ROBERT E. M I LEER 73 RM. MOB, CIW SdWIWF all. 04401 ARTHUR G. HOSIORD, JF. A..e."'c'Y SWORN Qu of'Pauffor, cmainr MEMORANDUM March 20, 1986 TO: Russell McKenna, City Clerk FROM: Arthur HOef Ord, Beet. City Solicitor SUBJECT: Fransway Realty Option - Proposed Development Site kl Accompanying this Memo iscopy of the Proposed Option Agreement between the City and Fransway Realty Company. I am sending it t0 your office because it needs to be on file in the Clerk's Office, in order for the Council to consider it at their next meeting, which will be Monday, March 24th. A.G.N., Jr. AGH,Jr./1g Attachment: AS OPTION AGREEMENT FOR PURCHASE OF PROPOSED DEVELOPMENT SITE 41 THIS AGREEMENT is made this day of , 1986, by and between the CITY OF BANGOR, a municipal corporation located in the County of Penobscot, State of Maine (hereinafter •CITY"), and FRANSWAY REALTY COMPANY, a Maine partnership having a place of business in 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 Proposed Development Site 41, located adjacent to Short Street, Independent Street, Broad Street and Water Street in Bangor (hereinafter "the Premises"), being approx- imately 88,445 square feet, and being more particularly identified on Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, inaccordance 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; NOW, THEREFORE, in consideration of the $1,770.00 paid to the CITY by the DEVELOPER in accordance with Sectionion A.B.-Feluw and of the mutual conditions and covenants contained herein, the parties agree as follows: - Section A. GRANT 1. Grant of Option. The CITY grants and the DEVELOPER accepts an xclusive option to purchase the Premises for development of an office building containing at least 60,000 square feet of office space n accordance with the terms and conditions of this Option Agreement. The purchase price of the Premises shall be $88,500.00, to be paid to CITY incash or by Certified or Bank Check at the time of closing o the sale of the Premises, less any amounts paid by the DEVELOPER to the CITY pursuant to this Option Agreement. 2. Term and Pri2R OE 0 tfon. This Option Agreement shall remin n effect from the ate hereof until September 26, 1986. The non-refundable option fee for this period is $1,770.00, 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 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 $295.00 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�f O tion. To exercise its right to purchase the Premises, t e DEV Eh TAPER shall so notify the CITY in writing before the expiration of this Option Agreement and any extension thereof. 4. Conve a and Evidence of Title. Within 30 days, or such other time as t e part es may agree upon,. of the CITY'S receipt of the DEVELOPER'S notice under Section A.3. above, the CITY shall convey goad and clear marketable title, free and clear of all liens and en- cumbrances, to the Premises to the DEVELOPER by Municipal Quitclaim Deed, subject however to the conditions, restrictions, and covenants contained in Sections E. 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 a company, licensed to do business in the State of Maine, that it will i a title insurance policy insuring marketable title. In that a portion of the Premises consists of property the CITY'S acqui- sition of which predates the CITY'S Urban Renewal acquisitions, the CITY agrees to use reasonable efforts to determine the source of title to the Premises. if the CITY is unable to tender marketable title after using such reasonable efforts, the CITY shall refund to the DEVELOPER the fees paid under this Option Agreement, if the DEVELOPER io requests, or the DEVELOPER may .choose to accept the CITY'S Munic- pal Quitclaim Deed, in which case the DEVELOPER shall assume any risks associated with the title. In no event shall the CITY'S obli- gations 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. % Right f Entry. During the option period the. DEVELOPER shall have [he rtgi^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 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- ees, or acting on the DEVELOPER'S behalf. Prior to any entry hereunder, the DEVELOPER shall first obtain liability insurance for n this purpose i such amount(s) of coverage satisfactory toCITYwith the CITY as aadditional named insured, and shall provide the CITY with written evidence thereof. All work shall be done i 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. 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 asorp�the DEVELOPER'S final plan shall be in substantial conformance with the scope of development described in Section A.1. above and the DEVELOPER'S presentation to the CITY'S Design Review and Site Plan Review Committee (hereinafter 'Committee-) on March 19, 1986, and plans entitled Proposed Office Building prepared by Platz Associates , dated January 21, 1986 , cop es of which plans a e on f 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 following development standards: a. Maximum Lot Coverage: 708 b. Maximum Floor Area Ratio: 2.0. C. Minimum Floor Area Ratiof 1.0. d. Minimum Building Height: 2 stories above street grade. e. Off -Street Parking: DEVELOPER shall provide such off-street parking as the Committee may deem necessary for the proposed development; provided, however, that i no event shall such parking be less than 125 spaces, 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. NO later than July 4, 1986, the DEVELOPER shall meet with the Committee and submit for its approvalpreliminaryplans as specified in Section C, Paragraph 1 of City Council Order No. 83-123, copy of which is attached hereto as Exhibit B and incorporated herein by reference. If the Committee deems revisions to the prelim- inary plans to be necessary or appropriate, the plans must be so revised and submitted to the Committee for its approval no later than July 25, 1986. No later than September 4, 1986 ..the DEVELOPER shall Pet with the Committee and submit for its approval final plans and related drawings, specifications, and documents in the form specified in Section C, Paragraph 2 of City Council No. 83-123. If the Commit- tee deems revisions to the final plans to be necessary or appropriate, e the plans must be so revised and submitted to the Committee for its approval no later thanSeptember 25, 1986. 2. Amendment to Final Plans. If the DEVELOPER desires to make any substantial alterat ons in the final plans after their approval by the Committee, the DEVELOPER shall submit the proposed change in writing to the Committee for its approval. If the final plans, as modified by the proposed change, still conform to the requirements of Section 8.1. hereof, the Committee shall not unreasonably withhold approval of the proposed change. The Committee shall either approve or disapprove the proposed change within ten (10) days after its submission and notify the DEVELOPER Of its decision. 3. Construction Pro resS Schedule. Concurrently with the submission o t e nal plan , the DEVELOPER shall submit a construc- tion progress schedule to the Committee for its approval. The prog- ress 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, or such later date as the Committee may approve. 4. Evidence f,Pinancin . The DEVELOPER shall provide the CITY with wr tten, lel gaily b£nding commitments, in a form satisfactory to the Committee, from acceptable lending institutions or governmental 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 8.1. and B.S. 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 in accordance with the final plans in the event the DEVELOPER is unable to perform the construction. 5. Construction Contract. The DEVELOPER shall provide the CITY with a cert f— cam 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.l., 8.2., and 8.3. above. 6. Performance. Bond. If the DEVELOPER retains a general contractor, 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 i 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., 8.2., and B.3. 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. I. Permit Regeirem¢are DEVELOPER shall obtain, and shall provide sat Test E y 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. S. Public Dieclosu[e. If requested by CITY, OEVBLOPER shall submit "Redeveeve ope tement for Public Disclosure" and "Redevel- oper's Statement of Qualifications and Financial Responsibility" [HUD Form 6004 19-691]. - Section C. CONDITIONS SUBSEQUENT TO 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 expressTprovide, that the express conditions, Covenants, and restrictions provided in Section C. hereof shall be covenants ,runming with the land" and that they. shall he 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 0.10., 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 Deed. 2. UseRestriction. The DEVELOPER agrees for itself, and every successor vn n to the Premises, or any part thereof, and the Deed shall contain express covenants on the part of the .DEVELOPER foritself, and its accessors and assigns, that the Premises and any improvements which may 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 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). 3. Anti -discrimination. The DEVELOPER agrees for itself, and every successor r 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 s and assigns, that the DEVELOPER, and its successors and assigns, Oshall 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. 4. Pro Taxes. The DEVELOPER agrees for [[self, and every successor in uteri est to the Premises, or any part thereof, and the Used 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 - iental authority upon the Premises and any buildings, structures, or mprovements 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 s interest, all right or ar ve pal taxation in privilege of exemption structures, from municipal mwhich n of the Promises and any buildings, thereon, as may o improvements which may be or may become sucatedcess the [eon, as may be available by other res of DEVwhatsoPER'Sever, or such successors' City legal status, or for any other reason whatsoever, and that the City of Bangor, in its capacity as s taxing authority, may assess all cause as would otherwise be applicable to the Promises, buildings, structures improvements which may be or may become located thereon, as esuch exemption did not exist. ,etoLfurther agents, for itself and any successors i pay intercom, to pay any assessments on o before the date upon which they become due and interest, CITY r agrees that DEVELOPER, o its a o interest, shall have the right to contest the amount of such staxes lor assessments in the manner prescribed by law. 5. Subdivision Restriction. The DEVELOPER agrees for itself, and every a esao[ in nteto 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 shall not be deemed to constitute a subdivision: a. Development of the project by separate development entities. b. Development of the project as a condominium pursuant to the Maine Condominium Act (33 M.R.S.A. Sec. 1601- 101 at seg.). 6. Land Speculation Restriction. The DEVELOPER represents and agrees that Lts purchase of the Premr es a 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. 7. CITY'S�p[oval of Transfer Prioe to Completion. The DEVELOPER recognrz s tt at�if¢catrons awn iHen�y of the DEVELOPER, and its principals or any successors in interest, are of particular concern to the CITY. The DEVELOPERfurther recognizes that it is because of such qualifications and identity that the CITY is entering into this Option Agreement and is willing to accept and rely n 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 E hereof, the DEVELOPER has not made or created and, until the CITY issues the Certificate of Completion under Section C.12, below, will not make or create, or suffer to be made or created, any total o partial sale, assignment, conveyance, lease, trusp, power, or transfer In any other mode or form, of, or with respect to, this Option Agree- ment, the Premises, orany part thereof, or interest therein, nor shall any contract o 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 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 i 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 The consideration payable for the transfer by the transferee or on its behalf shall not exceed an mount 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 t0 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. 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. 8. Mortgages Prior to Completion of ImDrovements. 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 ether 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 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 completion. No covenant or any other provision i any deed shall be construed so to obligate any such holder. However, neither such holder n its suc- cessors o signs shall be authorized to devote the Premises Orany part thereof to any uses, or to con- struct any improvements thereon, other than those uses or improvements provided or authorized in this Option Agreement. All covenants contained in this Section C.8, shall termi- nate upon the CITY'S issuance of the Certificate of Completion under Section C.12. below. Notice of Default to Mortoaoee. 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 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 10 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 respect to revesting of title to the Premises because of failure of the DEVELOPER to cure any default with aspect to the construction of the improvements o 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. 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 orcomplete 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. 11 C. In the event of the DEVELOPER'S default in its obligations under any mortgage or other instrument eating 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 interest of all costs and expenses incurred by thein 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 t0 a mortgage shall be deemed to include any insurer guarantor of any obligation or conditions ured 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. All covenants contained in this Paragraph 9 shall terminate upon the CITY'S issuance of the Certificate of Completion under Section 0.12. below. - 10. Title Reversion Prior to Completion. In theevent that prior to the CITY'S issuance of—th Ceram cl ate of Completion under Section C.12. below: a. The DEVELOPER, or its successor in interest Or assign, shall default in or violate its 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 x (6) months, if the default is with respect to the date for completion of the improvements) after written demand by the CITY to do sot 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 12 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 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 isnot 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.]. above, and such violation shall not be cured within thirty (30) days after written demand by the CITY tO the DEVELOPER: 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 peed 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 eventofany default, failure, violation, or other action or inaction 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 m r 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, 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 authorized by Section C. hereof, and (2) any rights or. interests provided in Section C. for the protection of the. holders of such mortgages. 13 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 Used 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 aswaiver of such rights or to deprive it of or limit such rights in any way. 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. Dispion UPon Reversion. Upon the revesting in the CITY of title to the preositm ses o any part thereof as provided in Section C.10., the CITY shall in accordance with State law use its best efforts to resell the Premises or part thereof, subject to any exist- ing mortgage liens, as sn n and in such m 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. be applied: Upon the resale of the Premises, the proceeds thereof shall 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 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 a part thereof at the time of revesting of title thereto in the CITY or to discharge or preventfrom attaching or being made any subsequent encumbrances or 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 rG) 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 Premises 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 Completion. Promptly after completion of the improvements fn accordance with 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.7., C.E., C.9., C.10., and C.11. above. 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 invil rd 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 thee -Tr 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, isaddressed to or delivered personally to the DEVELOPER, EranHaV Realty Company, 45 Oak St., Bangor, Maane 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, or to such other persons or addresses as the parties may designate in writing to the other. %I IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first written above. CITY OF BANGOR By Witness John W. Flynn Its city manager FRANSWAY REALTY COMPANY By Witness its Partner STATE OF MAINE Penobscot, as. Uzz Then personally appeared the above-named JOHN W. FLYNN, in 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. MM 16 Then personally appeared the above-named, in n his capacity as Partner of Fransway Realty Company a t acknowledgedthe foregoing instrument to be his free act and deedinsuch capacity and the free act and deed of the Corporation. Before me, Printed Name: Justice of the Peace Notary Public Attorney at. Law BRMD STREET r ed"Y — i •'til', Exhibit 03-113 Introduced by Councilor Jordan, Mach 30, 1903 CITY OF BANGOR (➢iLEJ (Orba .. E tablishme t of Procea re for Disposition ._.,._... ,_ Urban Renewal Parcels In City Council March 30, 1983 By Ow aty Coam;B of the Oft of Border. )Passed ORDERED, ,/A True co y, Att,/s THAT WHEREAS, as a part of its Col....r } iLC P Ogrp'amrk the City of Bangor purchased certain as yet undeveloped land from the Bangor Urban Renewal Authority, namely Parcels B-4, B-6, a-8, B-11, B-13, B-15, and P-6; and WHEREAS, the City of Bangor has assumed the Disposition, Design Review and Site Plan Review functions for the redevelopment of said parcels; NOW, THEREFORE, BE IT ORDERED THAT procedures for disposition and redevelopment of the above parcels be established as follows: A. DISPOSAL. Or LAND 1. Method of Disposal - The City may dispose of Nenduskeag-Stream Urban Renewal IME R -J) Parcels B-0, B-6, B-81 8-11, B-13, B-15, and P-6 by sale or lease in accordance with any method permit ted by State and local law to a developer selected either by negotiated sale of land or competitive proposal. Howeve [, prior to the execution of any agreements, the City Council shall by resolution, council order or similar dation: a. Approve all agreements and conditional and b. Approve the price. 2. Design Committee - A Design Review and Site Plan Review Committe consisting of the members of the City Council Community Develop- ment Committee, the Chairman of the Planning Board, the City Manager, the City Engineer, the Director of Planning and Community Development, and the Planning Officer shall review and evaluate all redevelopment proposals submitted. The Design Review and Site Plan Review Committee shall submit its recommendations for the selection of a tentative developer to the City Council which shall adopt a resolution designating the tentative developer. Page 2 3. Option to Purchase - The City shall as soon as practical enter into an agreement with the tentative developer providing him with an option to purchase. The City shall also indicate in the agreement the time limits for submission of final plans, penalties, if any, renewals and extensions. -a. The procedure for specific proposals is as Colima: (1) Council may designate a developer as tentative developer for such a reasonable period of time as may be necessary for the preparation and execution of an option agreement. Council may extend the tentative developer designation for good cause shown. 121 The Council may authorize the execution of exclusive option agreement before the expiration of the tentative developer designation. (a) The option fee for each 30 day period will be 1/3 of 1% of a pre -determined estimated purchase Price for the parcel(s). (b) The option may be executed after expiration of tentative developer designation, but developer loses tentative developer status during the intervening period. (c) The length of the option will be determined on a case-by-case basis, depending largely upon the magnitude of the proposal. During the option period the developer shall be required to submit, in accordance with a specified timetable, Pre- liminary plans (site plan, floor plan, elevations), final plans and specifications, evidence of financing, construction schedule and construction contract. (d) The option may be extended by the City Council for good cause shown, with the requirement of additional option fees for each additional month of extension. (e) The City shall not transfer title to the property until (1) firm and binding financial commitments for funding of the cost of actual physical work on the particular redevelopment project are secured by the redeveloper, and (2) a binding ennstruction contract or contracts have been tered into for the full scope of the constructior project which will go into effect upon transfer of title to the property to the redeveloper by the City. (3) The option shall be exercised and a purchase and sale agreement executed prior to the expiration of the - option agreement. Page 3 b. The procedure for speculative proposals is as follows: -' (1) (a) Same as set forth in a. (1) above. (b) Before designation as a tentative developer, developer must provide the name Of the principals of the developer and/or the development entity. (2) Option Agreement. Due to the speculative nature of proposals, a 3-phase option agreement is utilized, with the developer being required to meet additional criteria in order to proceed to the next .phase. (a) First phase (90 days). (i) The developer shall enter into an option agreement before expiration of a 30 day tentative developer designation. The option fee for 90 day period shall be § of 1% of a pre -determined estimated purchase price for the parcel(s). - (iii)The developer shall provide, in addition to therequirementsof b. (1) (b) above, written narrative of his general concept for redevelopment of the parcel(s). (D) Second phase (90 days(. (1) The developer shall enter into a more comprehensive optionagreement before the expiration of the first phase option, subject to prior submission of a written narrative or prospectus outlining the general intent and plana for the proposal, progress towards same, financing, magnitude of proposal, and contemplated uses of the parcel(s). (ii) -The option fee for the second 90 day period shall be 1% of price used in determining the option fee under phase one. (iii)Before expiration of the secondphaseoption, the developer shall submit preliminary plans to the Design Review and Site Plan Review committee. Said plans shall include: site plan, evidence of the necessary government approvals, construction schedule, construction costs, and evidence of sufficient _ financing. (c) Third phase (90 days). Page 4 (f) The developer shall enter into a third phase option agreement before expiration Of the second phase option. - (ii) The option fee for the third 90 day period shall be the same as for second period above. (iii)The developer shall obtain approval of preliminary plana within one month from the date of submission. (iv) The developer shall submit and obtain approval of final plans before expiration of the thirdphaseoption. Iv) The developer shall enter into a purchase' and sale agreement prior to expiration of the third phase option in order to retain his priority for the parcel(s). (vi) The City shall not transfer title to the property until (1) firm and binding financial commitments for funding of the cost of actual physical work on the particular redevelopment project are secured by the redeveloper, and (2) a binding construction contract or contracts have been entered into for the full scope, of the construction project which will go into effect upon transfer of.title to. the property to the redeveloper by the City.: C. As large scale projects may need more lead time for the development of preliminary and final plans, execution of agreements between developers and third parties, and arrangmnont of financing for large scale projects (in of 60,000 sq. ft.), the second and/or third phase option may be extended for not more than 90 days upon a showing by the developer that the additional time is necessary through no fault of his own_ Ceveloper's Qualifications - Before executing any final transfer of land, the City shall determine that the developer possesses the qualifications and financial resources to acquire and develop the land in accordance with the Kenduskeag Stream Urban Renewal Plan (ME R-]), as amended. Transfer of land will contain the qualification that construction or renovation begin and be completed within.dates agreed upon. The City may, if it deems necessary, require the developeras part of the agreement to post a performance bond in an amount to be set by the City. The City may, at its discretion and for good cause, reject any prospective developer 'based on an analysis of pertinent data relating to his qualifications and financial resources. Page 5 5... Property Rehabilitation - A disposal agreement covering property sold subject to rehabilitation shall contain a work rite -up detailing the work that must be performed by the buyer to conform to the Renduskeag Stream Urban Renewal Plan (ME R-7), a amended, and applicable codes and ordinances of the City. 6. Des inn Objectives - All disposal agreements shall contain provisions for City review and approval of a developer's plans. The City shall review and approve all development plans prior to construction to assure compliance with Redevelopment Plan objectives. B. MAINTENANCE OF RECORDS The City shall maintain records and reports, including copies of official Council action and Finance Committee action, reuseT appraisals] certifications, disposal agreements and other documentation concerning its land disposition activities for each parcel of land to be offered for resale. In addition, a running record in summary form shall be maintained indicating major actions and items of information on each disposition parcel. Periodic reports shall be made to the City Council detailing progress of the disposition program. I' C. APPROVAL OF PLAN No construction or renovation Will be allowed in or on Parcels B-4, B -6,e -S, B-11, B-13, 0-15 and P-6 without the prior submission and approval of preliminary plans, .final plane and specifications. Said plans shall be reviewed by the Design Review and Site Plan Review Committee appointed by the City Council to insure consistency in design and compatibility with the Renduskeag Stream Urban Renewal Plan (ME R-7), as amended. No plans 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: 1. Preliminary Plan - The intent of the PreliminaryPlan' shall be to outline the general scope of development or redevelop- ant, and to convey to the Design Review and Site Plan Review Committee sufficient information for them to determine the character of the work to bei performed. a. Site Plan - The site plan shall be drawn to a scale of one (l T7nch equals twenty (20) feet wherever practical. The plan should include:, I I _ (1) Property lines and dumeasions. (2) Adjacent features, such as abutting streets, buildings or properties. (3) Existing and proposed paved areas, including the type of pavement and principal. dimensions. F Page 6 (4) The on-site parking layout, and traffic flow, if any. (5) planting areas, including general size and variety of trees and shrubs. (6) All existing and proposed utilities, both above - and below ground, including service connections and drainage facilities. (7) Principal elevations, grades, or contours, both existing and proposed. (8) Existing and new building outlines, including Overlaps such as canopies or basement extensions. b. Floor Plan - The scale of the floor plan shall be left to, the discretion of the architect. This plan shall show general room layouts and use, including entrances and zits. Dimensions may be approximate and the overall floor area for each floor shall be indicated. The elevation of each floor shall be indicated.. C. Elevations - A suitable c -section or elevation of the building shall be provided�seither 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 n the layout of multi-level structures, the Design Review and Site Plan Review Committee 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. 2. Final Plans and Soecificatiois - After approval of the pre- liminary plan, the developer shall then proceed with the preparation of final plans- and specifications.- Said plans and specifications shall show sufficient details necessary to i e proper construction. All dimensions and elevations shall ))a accurate and all materials to be used in the structural or architectural treatment of the facility shall be outlined n complete detail. if, in the opinion of the Design Review and Site Plan Review Committee, 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) This Order supersedes Order number 26 AS passed by the City Council on November 27, 1978.