HomeMy WebLinkAbout1985-06-24 85-231 ORDERl
85-231
Introduced by Oouncior Frankel, Sane 24, 1985
CITY OF BANGOR
(TITLE.) Mrbtr. Authorizing Et on of ORtion Agreem is with
Exchange Street Associates --'Parcel E-13-
_.......... ............. ............. .............. _. _._ _.. _..
By the pry Gau loft MY OfBano"N. -
ORDEEED,
THAT WHEREAS, the City Council by passage of Order 85-143 0
March 25, 1985 designated Exchange. Street Associates as tentative
developer of Urban Renewal Parcel B-13 until dune 1, 1985; and
WHEREAS, the tentative developer status granted to
Exchanged Street Associates was extended to July 1, 1985 by, passage
of Order 85-198; and .
WHEREAS, two separate Option Agreements have been negoti-
ated with Exchange Street Associates, one Option Agreement for the
northern one-half of Parcel B-13 to accommodate the first phase of
the Exchange Street Associates proposal to develop a 30,000 square
foot. 3 -story commercial building and at least 38 parking spaces,
and a ondl option Agreement on the southerly one-half of Parcel
B-13 to accommodate a future phase of the Exchange Street Associates
proposal for development of aial building containing at
least 30-,000 square feet -of retailcommerc
and/or office space and at least
138 parking spaces;
MPA, THEREFORE, BE IT ORBERED THAT the City Manager i
hereby authorized and directed, on behalf of the City of Bangor, to
execute two Option Agreements, copies of which are on file in the
office of the City Clerk, with Exchange Street Associates for the
purchase and redevelopment of the former Urban Renewal Parcel B-13.
v.
f 4
- ORDER ftt
IN CITY COUNCIL
June 24, 1995 Title,
Pa � Au[hoii2in Ex¢cotiOn of tlOn rd = l —
CS LENK Agreements witM1 Exchange Stieat Associates C/r
................ _..��""..
. Parcel H 13
Sntroduced and filed by
... J. �. s .......
Councilman
gr -25
.OPTION AGREEMENT MR PURCHASE OF
UREAN RENE{ PARCEL R-13
THIS MRSPROMr is made this day of 1985, by and
between the CITY OF 64YWR, a municipal mrporat m located in me County of
Penobemt, State of Maim (hereinafter "CM-), and E%CWGE STREET ASSOCIATES,
a Maine limited partrrtrship having a place of business in Eaegor, County of
PembsooL, State of Maine (hereinafter "@AERIJPER'1.
WREREM, aS a part of its duly adopted and approved Co munity Development
Plan (hereinafter 'Dovelopment Plan") the CITY has acquired and now Runs the
real Property omearly known as the'foxmar Urea: Renewal Authority Parcel B-13,
located an Exchazge Street in Bangor, County of PaMsmnot, State of Maine, all
as mare particularly identified on EMibit A attached hereto and incorporated
herein by reference: and
WNERFAS, in accordance with its Development Plan, Ne CIPY has determined
that the private davelCpment of a portion of said Parcel 8-13 (hereinafter "Said
Prenises-) in acmNanm with the provisions of this Option Mreeent and the
Deeelpment Plan would best serve the interests of the citizens of the Cxn,
Said Pranises being indicated on Exhibit A as the area outlined and labeled
"First Parcel". and
W6REAS, On CITY has received a proposal for the develgmont of Said
Premises from the DEVELOPER and has determined that said proposal will serve the
interests of Na citizens of Bangor;
MOW, 1HEREFORS, in consideration of the option fee(s) Said to the CITY by
the DENELAPER in accottlanm with Section A, Paragraph 2 (a) mine and of the
mutual conditions and covenants contained herein, the parties agree as follows:
SECTION A. GRA^PD OF OPTION
1. Grant ofOption. The CM grants and the @.WEIAPER accepts an
exclusive option to pure L Said Promises for development of a 30,000 square
feet, 3 -story coaemial building and a parking area, lot, or structure
containing at least 38 parking spaces at a total estimated cost of at least $2
million in acwtdance with the terns and conditions of Nis Option Agrearent.
The purchase price for Said Prises shall be Thirty Thousand Dollars
($30,000.00), to be paid to CITY in cash or by certified or hank check at the
One of blosirg an the sale of Said Pranism, less any amounts pall by FFvMGpSR
W CITY lwrsaant to this Option Agreanent.
2. Price and Izrpth of Option. This Cptim Agreement shall remain in
effect frau the date hereof until '1986. Tare nen-refundable
option. fee for said twelve month paried is ywalve Hundred Dollars ($1200.00),
which shall be paid to CM in cash or by certified or bank check,. six Smutted
Dollars ($600.00) at the time this Option Agreement is executed amt six Hundred
Dollars ($600.00) m Or before January 3, 1986. The Option Agreement may be
extended upon approval by the City COUmil of the City of Banger for any
additional time not t0 exceed an additional six (6) months at the rate of One
Hundred Dollars ($100.00) per.mmth, which shall be payable in advance.
All option fees paid by DEVELOPER tO CM under this Agreement shall be
applied towards the purchase price at the time of comeyarce of the property to
DEVELOPER; provided, howsver, that the ption fees shall he forfeited. to CITY if
the DEVKDOPER does not purchme Said Promises in accordance with the terms and
conditions of this Agreement.
3. Exercise ofOption. TO exercise its right to purchase Said Premises,
wYEt M sf= m[rfy tM CSTY in writing before the expiration of this
Option Agreement or any extension(s) thereof.
4. Conveyance. Within 30 days, or such Other time as the parties may
agree upon, of the CIPY'$ receipt of DEVELOPER'S notice under Paragraph 3 above,
CITY will dismay all of its right, title, and interest in Said Promises to the
DEVELOPER by Municipal Quitclaim read, subject however to the conditions,
restrictions, and covenants contained in Sections B and C below.
5iRi M of Eh . During the Option period and my renewalds) or
extensm(s thereof, the DEVEUJPER shall tame the right, on reasonable notice
to and consent by the City Engineer, to enter upon Said Promises with man and
machines for the preparation of feasibility studies and construction plans..
such entry shall to M DEVHOPER'S cols risk and expense, and the DEV pox
covenants and agrees to imde^nify, defend, and hold the CITY harmless from my
claims for personal injury or property damage suffered by reason of entry upon
Said Premises by DEVELOPER, its agents or mplcyees, or anyone acting on
DEVELOPER'S behalf. Prior to my entry hereunder, DEVELOPER shall first.Obtain
liability insurance Ear this purpose in such amxont(s) of coverage satisfactory
to CITY with the CITY as an additional named insured and provide the CITY with
written evidence thereof. All work shall be done in a manner that causes the
least possible disturbance m Said Premises, and DEVELOPER dominants and agrees
that the exercise of its rights under this paragraph shall m done in a
war1manlike manner and that DEVELOPER shall repair any damage to Said Promises
resulting from the exercise cf said rights.
SECTION B. CONDITIONS PRECED2TP TO SME OF SMD PPENUSES
Prior to the sale of Said Premises the DEVELOPER shall complete the
following:
1. Submissionof Plans. The development and use of Said Promises m
ncurporated into the DEVELOPER'S final plan shall be in substantial conformance
with tare scope of devel preen described in Section A, Paragraph 1 above. and the
DEVELOPER'S prasentatim W C11Y'S resign Review and Site Plan Review Crnmittee
(hereinafter "Committee") On March 4, 1985 and the plans prepared by Webster
Baldwin Day Hanson, Architects, dated March 4, 1985, copies Of which plans are
on file In the office of the Department of Planning and (amenity Development,
City Hall, 73 Harlow Street, Bangor, Maine.
My development and use of Said Premises shall comply with the
following development standards:
a. Minimum Cot Coverage: 33%.
b. Mininwn Building Height: 3 stories above the
Exchange street grades.
C. Maxiaas Developmnt %witted: Floor Area Ratio
Of 1.6.
d. Minima Bevelopment Permitted: Floor Area Ratio
of 1.0.
e. Off -Street Parking: Developer shall provide such off-street
Parking as the CmUittes may dean necessary for the proposed
development; Provided, ho ver, that in no event shall such
parking be less than 38 spaces.
All rewa used in this paragraph shall be defined in accordarce with the
provisions of the zoning Ordinance of the City of Bangor and any applicable
amendenm thereto or replacements thereof.
By no later than Septabber 31, 1965, the C6.VEfUPER shall meet with
the Crnmittee and submit for its approval preliminary plans as specified in
section C, Paragraph 1 of City Council Order No. 83-123, a spy of which is
attached hereto as Exhibit B and incorporated herein by referents. I£ revisions
to the preliminary glare are deened necessary or appropriate by the Cmaittee,
the plans must be so revised and submitted w the Crnsittee for its approval by
He later flan Dm*s]Wr 31, 1985.
By no later than Match 31, 1986, the CEVEIOPER shall neet with the
Cmauttee and submit for its approval final plane and related drawings,
specificatdons, and aocumnts In me fors specified in Section C, Paragraph 2 of
said Council Order No. 83-123. If revisions to the final plans ate deemd
necessary or appropriate by the Casiittee, the plans must be so revised ard�
submitted to the Crnmittes for its approval by no later than
2. Asexhant to FinePlans. If the PFyHpPER desires to make any
substantial alterat ens in the na Plane after their approval by the
Committee, the EEVECOPER shall submit the proposed change in writing to the
conait a for Its appraual. If the final plans, as modified by the proposed
change, still condors to the raguire ant of Paragraph 1 of section B hereof, the
Canmittee shall rot unreasonably withhold approval of the proposed charge. The
Cmsittee shall either approve or disapprove the proposed change within ten (10)
days after its subaission and notify ria Cfyf ER of its decision.
3. Constructlan Progress schedule. Corourrently with the submission of
the final plans, the BEVE(LiPS submit a Construction progress schedule to
the Omnittee for its approval. Said progress schedule shall provide for the
canren�ent of construction within three (3) months after closing and
mapletion of construction within eighteen (18) n obs Errs the oseence ant of
construction, or such later date as the Crnmittee may aWmaa.
4.. Evidence of einancieg. the EEUEIgpER shall provide Ne CPM with
written, legally binding mnmf[nents, in a form satisfactory to the frssdttce,
Eton acceptable lending institutions and/or g ermnental agencies for both
interim pwtructim finswing and log-term financing of the total proposed
davelcment as it is detailed in the plans referred to and approved under
Paragraphs 1 and tot Section a hereof.
5. Construction Contract. the Pi.'VEfp shall provide the CIM with a
Certificate exeoltP9 by the DEV pfa and its general contractor for
construction of the total development certifying to the existence of such a
contract for the construction of the total development i condanwith the
provisions of Paragraphs 1, 2, and 3 of Section B hereof. ace Said certificate must
be in stir form and contain surf: substance as may be acceptable to CPM'S Legal
Depart: ent.
6. f0rf0rmm0e Bond, the DEl'FlAPER shall require its general contractor
to obtain hoth a perforiance bond and a labor and material paynnnr bond issued
by a corporate surety licensed to do business in the State of Maine, each in a
penal am equal to the total estimated cost of the total Proposed devslo is,
to severe performance of the alligations contained in Paragraphs 1, 2 and 3 0£
Sectim B hereof, tEYE[ M shall submitto the CIM a copy of the bonds and
written evidence of payment of the re aired Isamiwoa. The bonds must remain in
effect until the CITY'S issuance of the Certificate of Canpletim under
Paragraph 12 of Section C hereof.
]. P®mit RaTlitenent. LEVFdDPER stall obtain, and shall provide
satisfactory evethereat to tM C=, every pemit, Licence, and
governmental approval necessary for cmmencemant and completion of said
level Ivent including, but not limited to, Bangor Planning Board approval if
required.
S. public Disclosure. If requested by CITY, MEMPER shall submit
"RAevel per s Star tare for Public Disclosure' and "Redeveloper's Btata ant of
Qualifications and Financial Responsibility" [N Form 6004 (9-59)1.
SECfIM C OADPTIONS SMSO EMT M SAIF OF MID ERMISES
the following express Conditions, covenants and restrictions will be
incorporated into arc] homes an express part of the Dead as "covenants running
with the land":
1. Dead C enents. It is intended and agreed, and the Deed shall so
expressly provide, that the express Conditions, covenants, and restriction
provided
linbe Section
C hereof shall be covenants •rmning with the land" and that
ng, to the fullest extent permitted by law and equity, for
the benefit and in favor of, and enforceable by, the CPM and any successor in
interest to Said Premises or any part thereof for rhe time periods specifically
prescribed herein for eah. .
2. use Restriction. the DEV pfw agrees for itself, and every.
cresaor in nit to Said PraMisCo, or any part. thereof, and the Dead shall
contain express covenants on the patt of the � for itself, and such
succaeeom and assigns, that Said Premises and any improvenents which may to or
5.
May loonies located thereon shall be used, constructed, developed, occupied
and/or 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
sums subject natter, �M agrees that Said Ptenises and any imprOvaments
Mich may be -or may beCone lOCated thereon shall be gover d by the most
restrictive Of said law(s).
3. Mti-discrimination. The pEVETDPER agrees for itself, and every
successor in Meres�raeises, Or any part thereof, and the peed shall
contain express covenants On the part of the tl:VEI<)PER for itself, and such
successors and assigns, that the nSvSIDPER, and such successors and assigm,
shall cot discriminate upon the basis of race, color, creed, national origin,
x or physical handicap in the sale, lease, Or rental, or use or occup of
Said Premises or any improvements thereon, alis covenant shall run in
perpetuity. This covenant against discrimination shall be binding for the
benefit and in favor of, and enforceable by, the CM aM the United States of
America against the DEVE[DPER and every successor. in interest to said Premises
or any part thereof.
4. Property Taxes. The pEVEf M agrees for itself, and every sucreseor
in interest_
Said Pranises, or any part thereof, and the peed shall contain
express Covenants On tha part Of the EEVFSDPER for its4lf, arca such successors
and assigns, that Said Premises shall be subject to all taxes and assessments as
may be imposed by any govermental authority upon the a£oredescribed premises
and any buildings, structures, or impewaeents which may be or may heoone
located thereon. It is the intent of the parties hereto, and dVEiDPER hereby
agrees that it does hereby waive, for itself and ary successors in interest, all
right or privilege of exemption frau municipal taxation of the aforedescrihed
Premises and any buildings, structures, or improvements which may be or may
becmre located thereon, as may he available by reason of DEVEIDPER'S or such
successors legal status, or for any other reason whatsoever, and that the City
of Bangor, in its Capacity as a taxing authority, may assess all taxes and)
sessrents as Wald otherwise be applicable to the aforedescribed premises,.
buildings, structures or Lnprwecents Mich may be or may become located
thereon, as if such exaeptim did not exist. EEVEIOPM further agrees, for
itself and any successore in interest, to pay said aseassesenta on or before the
data upon which the same became due aM payable. Provided, however, that CITY
agrees that DEVEI PER, Or its successars
n interest, shall have the right to
contest the amount of such taxes orsesssaaents in the manner prescribed by law.
5. Ban on Subdivision. The pEVEf�ER agrees for itself, ed every
successor in nteSau Premises, or any part thereof, arc) the Ebel shall
contain express oivenants m the part of the pEVEfDPER for itself, and such
successors and assigns, that said Premises shall not to subdivided without the
express written consent of City. For the purpose of this paragraph, the
following shall not be deemed to constitute a subdivision:
a. Emelcpmadt of the project by smarate development entities,
b, oevelolaent of the project as a confra inimn pursuant to
the Mains Condaminimn Act (33 M.R.S.A. Sec. 1601-101 at seg.).
6. San on land SpeculatimThs tEVEfppPER represents and agrees that
its purchase said Pramrses and . is other undertakings pursuant to this option
Agreement are and will he used for the Pnrpose of developent of Said Premises
In acxnrdance with Paragraph 1 of Sectim 3 hereof add not for speculation in
land holdings; provided that this cos ant shall terminahe Opm the C1TY'S
issuance of the certificate of Canpletion under Paragraph 12 of Section C
hereof.
]. AA I of Transfer Prior enCompletion. The mV6IDPER recognizes
Oat the qualifications and identity or the rk Fra, and ifs principals or any
successors in interest, are of particular concern to the CITY. Ths lEVppPER
further 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 on the obligations of the B IDPER for the faithful pexfousmos of all
undertakings and covenants to he perfod N by it, therefore, the rEyQt>PER
represents and agrees for itself, its successors ani assigns that, except only
by way of security for the purpose of obtaining financing necessary to enable
the BEVelL7PER or any approved successor in interest to Said Premises to perform
his obligations with respect to uwkig the JgOuOanents under Section B hereof,
the pEJEIOPER has not made or created, and Nat it will not print to the CTTY's
issuance of the Certificate of Cgnpletion under Paragraph 12 0£ Section C
hereof, make or create, or suffer Co be made or created,any total or partial
sale, "assignment, conveyance or lease, or any trust or Power, or transfer in any
other coda or form of, or with respect O this option Agreaent for Said
PrenUmS or any part thereof, or interest therein, or Wry Contract or agreement
to do any of the sane without prior written approval of the CM.
The CM shall be entitled to require as conditions to any such
approval that:
a. Any proposed transferee shall have the qualifications and
financial responsibility, as deteunined by the CITY by written evidence
submitted to it, necessary and adequate to fulfill the obligations
undertaken order Section B hereof;
b. Any proposed transferee, by instrument in writing satisfactory
to the CITY and in a form recordable in the pedohscot Registry of lauds,
shall for itself and its Wooessors and assigns, and expressly for the
henefit of the CITY, have expressly assured all of the obligations of the
OEVEEOPER under this Optim Agreenent ad agreed to be subject O all of
the conditions and restrictions to which Oe pEVE[APER is subject under
Section C hereof; and
C.
The consideration payahle for the transfer by the transferee or
On itsbehelf shall not exceed an amunt representing the actual cast to
the CENFl/JPER of Said Promises and the imurovanenta, if any, theretofore
made thereon by it; it being the intent Of this provision O preclude
assignment of the agreement or transfer of Said Premises for profit prior to the
CM'S issuance Of the Certificate of Completion under Pargaraph 12 and to --
provide that in the event that any such assignment Or transfer is made the Cm
ahall he entitled to increase the POCChaae price to the I]ENQJJPER by the shOant
that the consideration payable for the assignment or transfer is in excess of
the SMOMt that may be authorized pursuant to this subparagraph c. and soon
onsideratim shall, to the extent that it is inss of the anchor so
authorized, belong and forthwith be paid to the CITY.
The foregoing Proaiswm of this Paragraph 7 notwithstanding, the
APER may assign this Option Agreeent and all rights and duties herein,
subject to the teens and cmdicims hereof, to a development entity hereafter
organizei and qualified by PEVEfDPER under the laws of the State of Mains;
Provided, however, that pNEU M shall retain an active involvement in said
entity and said entity shall assure, in a writing satisfactory to the CITY, the
Obligation to complete, in the manner provided for in this Option Agreement, the
C htaMPlatel improvements On Said Prenises. fur[henrore, said entity must
vIDmit evidence satisfactory to the CITY that it has the qualifications and
financial responsibility necessary to perforin such obligatim.
All ocvensnts Contained in this Paragraph 7 shall terminate upon the
CITY'S issuance of Ne Certificate of Completion under Paragraph 12 of Section C
hereof.
8. MortoagaS prion to completion of imprwments.
a. Prior to the impletion of the Lrprovenents as certified by the
Cm, neither the Cf VE fx nor any successor in interest to the Said
Premises or any part thereof shall anlage in any financing or any ocher
transaction creating any Wrtgags or any other enrwmbrance or lien upon
Said Pranises, whetber by express agreement or Operation of taw, or permit
arty encumbrance Or lien to be made on or attached to Said Premisss, except
for the purpose of Obtaining funds necessary for making improvements and
additional funds not to exceed the purchase price of Said Pranises Said by
the PEVHL)P6R to the CRY. Tho EEV ffl shall notify the CM in advance
Of any Mortgage financing it proposes to enter into with respect to Said
Premises, and Of any enCUMbranm Or lien that has been Created on or
attached to Said Prenises, whether by voluntary act Of the DEVELWER or
Otherwise.
b. The holder of any mortgage anthorizei by this Option Agmaxant,
including any such holder who obtains title to Said premises or any part
thereof as a result of foreclosure proceedings oraction in lieu thereof,
shall not th chligated by the Provisions of this Option Pyreerent to
COnstruCt Or Complete the improvements or to guarantee such mnatructim or
impletion. so covenant cr any other provision in any deed shall be
cirs[rued as to Obligate any such holder. sowever, neither such holder her
its successors or assigns shall be authorize] to devote Said Armies, or
any part thereof to any uses, or to construct any improvements tberem,
other than those uses or imprevements provided authorized in this option
Agreement.
All covenants contained in this Paragraph 8 shall terminate uppn the
CITY'S issuance of the Certificate of C Pletim under Paragraph 12 of Section C
hereof.
9.: Notice of default to mortgagee.
a. 4henevee the CM shall deliver or make any notice or derand to
the OF.YSUJPER with respect to any breach or default by the. lff.Y pM in its
obligations or CoveneMs under this Option P.greenent, the CITY shall at the
same tine deliver W each holder of second of any mortgage authorized by
this agreaent a copy of such notice or damsel. Such such holder shall,
insofar as the rights of the CITY are conterned, have the right at its
option W cure such breach or default and W 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 improvanente, such holder
may not undertake or continue the construction or a mrletion of the
improvanents beyowd the extent necessary, to conserve or protect
improvements or construction already nada without first having expressly
assure] in writing the obligations to the My to couplets, in the manner
Provided in this Option Agreement, Oe imprceasents on Said pranisse or the
part thereof W which the lien or title of such holder relates, and having
suhnitted evidence satisfactory to the CM Nat it has the qualifications
and financial responsibility necessary to perform such obligation. Any
such holder w1ho shall properly, couplets the improvaoenis relating W Said
Prenisse or applicable part thereof shall he, entitled, upon Witten request
made W the Cm, to a certification by the CITY en such effect in a manner
provided in Paragraph 12 of this Section of the Option Agreanent. Such
certification shall, if so requested by such holder, provide that any
ranedy with respect to revesting of title to Said Premises that the CM
shall have because of failure of the fSyf &ER to cure any default with
respect W the Construction of the inproeahents on other parts of parcels
of Said Prerises, or because of any other default in or breach of this
Option Pgresnent by the [ VpyE ER, shall snot apply to the part or parcel of
Said PMAises W which such certification relates.
b. If subsegWnt W default by the DeVQOPER under thisOption
AgremeM, the holder of any mortgage on Said Practises or part thereof does
rot exercise the option W construct or emplete the improveneMs relating
W Said Iranians or part thereof covered by its mortgage or to wJrh it has
obtained title within bo days after the holder has been notified of the
default or undertakes revelation of the improvements but does not oovplete
construction within the period as agreed upon by the CITY and such holder,
the CITY shall have the option of paying W the holder the around of the
mortgage debt and securing an assigrasnt of such debt and of Oe yortgage.
If ownership of Said Premises or Part thereof has vested in such holder by
way of foteClesure or action in lieu thereof, the CM shall W entitled,
as its option, W a conveyance W it of Said Premises or part thereof upon
payment to such holder of an ancunt eluual W the ams of the aertgage debt
at the time of foreclosure or action in lieu thereof less all appropriate
credits, including three resulting from collection and application of
rentals received during foreclosure proceedings; all expenses with respect
to theforeclosure; the net expenses, exclusive of general overhead,
incurred by such holder in and as a direct result of the subsequent
management of Said premises; the Wet of any 1mpWvenents made by such
holder; and an mount equivalent he the interest that would have accrued on
On aggregate of such amunts had all such amounts beco a part of the
mortgage debt and such debt had continued in existence until such
acquisition by the CITY.
C. In the event of a default by the DE ffPER in its obligations
under sexy aortgage or other instraoent creating an encunbrince upon said
Preeises or Part thereof prior to camletlon of improsxomos, the CITY may
at its intim woe such default or breach. in such case the C11Y shall be
mtitled, in addition to and without limitation upon any other rmneiy to
which it shall be entitled by this option Agreenent, operation of law, or
otherwise, to reimbursement frau the ItVEffxSS or successor in interest of
all Costs and expenses incurred by the CITY in curing such default or
breaff, and to a lien upon Said Praxises or part thereof to whiol the
mortgage, mcarhrance, or lien slates to secure moh reimbursement.
d. For the purposes of this and offer Paragraphs of this Option
Pgreeaent, the tern holder in reference W a Mortgage shall be deered W
include any insurer or guarantor of any obligation or condition amured by
wool Mortgage, including but not limited to the Federal Housing
Coamissiorer, the Administrator of Veterans Affairs, and any successor in
office of either arch official.
All covenants Contained in this Paragraph 9 shall terainte upon the
CITY'S issuance of the Certificate of Coipletion under eararaph 12 of Section C
hereof.
10. 'Title [eversion for Default Prior to letioo. In the event that
prior to the CITY'S rsauance of the Certif cafe of Completfm under Paragraph 12
of Section C hereof:
a. The �M, or its successor in interest orassign, shall
default in violate its obligations with respect W the constriction of
the inpmvamencs (incloding the nurture end the dates for the beginning and
completion thereof), or shall abandon or substantially suspend construction
work, mv3 any such default, violation, abandondant, or suspension shall not
be Cured, ended, Cr rowelled within those (3) monUfs (six (6) months, if
the default is
with respect to the date for impletion of the v
ixpr xeents)
after writtendereni by the CITY to W an; or
b. no pEV¢OPER, or its successor in interest or assign, shall
fail W pay real estate taxes or assessments m said Fteaises or any part
thereof when due, or shall place thercm any encambrance or lien
unauthorized by Sectim C beessf, Of shall Wffer any levy or attachamt to
be made, or any materialum's or Mechanics' lien, or any other unauthorized
enciin1arance or lien W attadi, and such taxes or assessments -shall not have
haen paid, or the mcmbranm or lien rmgved or discharged or provision
satisfactory W the CM Node for sum payment, r oval, or discharge,
within thirty (30) days after written demand by the C1TY to do in; or
C. The 05VEf M, or its successor in interest or assign, shall
file a petitim in bankruptcy or be declared bankrupt or insolvent, or any
assignment shall be made for the benefit of creditors, or an, involuntary
petition for hankruptcy shall be filed, or a receiver, trustee in
bankruptcy or similar officer shall be appointed to take charge of all or
my substantial part of the DEVEfUPER'S property, and such petition,
sssigiUmt, or appointment is not dismissed m released within thirty (30)
days of the date the petition is filed or the assigneent or appointment is
male; or
d. There. is violation of Section C hereof, any transfer of the
Said Premises or any part thereof, or my change in ownership of the
CEUEI.OPER, except as expressly permitted in Paragraph J of section C
hereof, and such violation shall rot be Cured within thirty (30) days after
written davNnd by the CTM W no MVEL ER:
than the My shall have the right to re-enter and take possession of the Said
Premises and W terminate and revest in the CITY the entire estate conveyed by
the Dead W the PEVfTOPER as if no peed had over been given; it being the intent
of this provision, together win other Provisions Of Section C hereof, net the
Conveyance of the Said Pramisms W the [dNEfAPER shall to made upon, and that
CM Deed shall contain, a condition subsequent W the effect that in the event
of any default, failure, violation, or other action or in -action by the
�ER specified in subparagraphs a., b., c. and d. of Paragraph 10 0£
Section C bereof, failure On the part of the DEVELOPER to remedy, cod, or
abrogate such default, failure, violation, or other action or inaction, within
the period and in the mariner stated in such subparagraphs, the CTM at its
option may declare a tenminatim in favor of the CTM of the title, and of all
the rights and interests in and W the Said Premises conveyed by the Deed to the
DEJE11MER, and that such title and all rights and interests of the TE^lE Sh,
eel my assigns or successors In interest to and in Said Premises shall revert
W the CIM; provides, however, net sunh cmditim subsequent and any revesting
of title as a result thereof in the CTM shall always he subject to and limited
by, end shall not defeat, render invalid or limit in any way: (1) the lien of
any wrtgags mthoriuN by Section C hereof, and (2) my rights or interests
provides in Section C for no protection of the holders of such mortgages.
The CM shall have ne right to institute sun mtims or
procectlings as it may dean desirable for effectuating the purposes of this
Paragraph 10 including also the right to execute and record or file a ong the
public land records in the office in Min the Deed is recorded a written
declaration of no termination of all the right, title and interest of the
OEVBtUPER, its successors in interest and assigns, in Said Promises ani the
revesting of title thereto in the CIM; provided, however, net any delay by the
CIM in institution or prosecuting any such actions or proceedings or otherwise
asserting its rights wrier Section C hereof shall not operate as a waiver of
Con rights or to deprive it of or limit such rights in any way.
the express conditions, covenants, and restrictions contained in this
Paragraph 10 shall terminate upon the CM'S issuance of the Certificate of
Completion Cotler Paragraph 12 of Sectim C hereof.
11. Disposition IRnm RaWmmim. lige the revesting in the CITY of title
W Said Promises or my part thereof as provided in Paragraph 10 of section C,
the CITY shall in accordance with state law use its best efforts W resell Said
Promises or part thereof subject W any existing mortgage liens, as soon and in
sun manner as the CITY shall find feasible and consistent win the objectives
of developing Said Premises for residential condominium use W a qualified and
responsible party or parties, as determined by the CIM, who will assume the
obligation of -making or ompleting the improvements or sun other iVroveents
in their stead as shall be satisfmtory W the CITY.
applied: Upon the resale of Said Stasises, the proceeds thereof shall be
a. First, to reimburse the CM for all costs and expense
incurlad by the CITY including but not limited to salaries of personnel in
Connection with the recapture, manageoent, and resale of Said ereciam or
Fort thereof (but leas airy Incase derived by the CM Eros the Said
Prmises
Or part thmscf); all taxes, assessments, water, sewer and other
utility
charges with respect to Said Prenises or part thereof; any payments
nage or necessary to he made to discharge any en�rances or liens
eximlorc Co Said Prmises or part thereof at the time of revesting of title
thereto M the CITY or to discharge or prevent fens attaching or being made
any subsequent encwohrances or liens due to obligations, defaults, or acts
of the pEYEIOPEW its successors or assigns; any expenditures made on
obligations incurred with respect to the making or conpletim of the
ivg:rov®rents or any part thereof on Said Pranism or part thereof; and any
anOunts otherwise owing the CM by the pEVE1 M and its accessor or
assign; and
b. SOOO d, to reimburse the CEVEfDPEN, its sucCamor or assign, up
th the nbOUst equal tO (1) the sun of the purchase price paid by it for the
Said Premises or reit thereof and the cash actually invested by it in
making any of the impromnents on Said Prenises or part thereof, less (2)
any gains or ince a withdrawn or made by it.
My balance rereining after anon redmburament shall he retained by the CITY as
its property.
she express conditions, revenants, and restrictions contained in this
Paragraph 11 shall terminate ups the CITY'S issuance of the Certificate of
Camiletim under Paragraph 12 of Section C hereof.
12. Certificate of Nnplet'm. PrOWTtly after cospletim Of the
in{orwesents in acwrr Ow with the provisiam orthis Option lgrement, the
CITY 111 furnish the EEWWPER with an appropriate instruent so certifying.
Such certification shall be in such form as will enable it to be recorded in the
Penobsoet Imgistry Of pends. The CITY'S issuance of the Certificate of
Canpletim will constitute Conclusive proof of the satisfaction and ismination
Of the expeem Conditions, CovenantS, and restrictions contained in Paragraphs
6, ], 8, 9, 10 and 11 of Section C hereof.
If the CITY shall refuse or fail W provide such certification, the
CITY shall, within thirty (30) days after written request by the phl2fU ,
Provide the FE9Q/JPER with a written statesent indicating in adequate detail in
what respects the EEVSI0PER has failed W casplete the impmvenents in
accordance with the preVisime of this Option ngrement and what measures will
be necessary w obtain such certification.
13. Notice. My notice under this Option Pgrement 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 -
12
a. in the case of the 0eyIIipER, is addressed to or delivered
petsowlly W the Ck9WAPER, 183 Harlow Street, eager, Maine, 04401.
b. in the case of the cm, is addressed to or 4elivere4
peracnally to the CM, c/o City Maier, 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.
IN W ESS WHECdllF, the parties hereto have set their hares the day sai
year first written above.
Wv[reas BY john W. . F ynn —
Its City Manager
Witness
Benobscot, as.
E%CHPWGE SIRE6T PSSOCm7w
Ey
Its General Partner
SIAM OF IMINE
1985
Then personally appeared the above-ranei JON W. ELM, in his capacity as
the City Manager of the City of Bangor, arc) aekmwledged the foregoing
instrurent to be his free act and deed in said capacity and the free set and
deed of said City of Bangor.
Before me,
Printed Nage:
Notary Public
Attorney at Law
13
3 @ ,Ff 1, 1
SS. 1 1985
Then personally appeared the above-mmusd in his
capacity as General Partner of E dC a Street saae at�knwled�ei the
foregoing inctnmient w be his free act and deed in said capacity a� the free
act and deed of said Cor ration.
Before me,
Printed Na :
Justice of the peace
Notary Public
Attorney at Sam
YS --'PL S I
MIS AGFEFPfrNE is made this day of , 1985, by and
between the CITY OF SM", arclpal corpprat on ted in County of
Penobscot, State of Mains (he are'nafter "CITY"), and E%c1WNGE STREET ASSOCIATES,
a Maine limited partnership having a place of business in Bogor, County of
Penobscot, State of Mains (hereinafter "EkVEUSER").
WIMESSETA:
WHEREAS, as a part of its duly adopted and approved Community 0evelopnent
Plan (hereinafter "Development. Plan") the CITY bas acquired and now owns the
real property cammoNy known as the former Urban Massed. Authority Parcel 8-13,
located on exchange Street in Bangor, County of Penobscot, State of Maine, all
as more particularly identified on Exhibit A attached hereto and incorporated
herein by reference; and
MEREA9, in acoordance with its Mveloiaeat Plan, the CTPY has determined
that the private development of a portion of said Panned B-13 (hereinefter -Said
Prenizes") in accordance with the provisions of this Option Agreament and the
Development Plan would hest serve the interests of the citizens of the C1PY,
Said Premises being indicated on Exhibit A as the area Outlined and labeled
"Second Parcel"; and
aHS2PAS, the CM has zecaivad a proposal for the development of Said
Ptenisea Eton the IiYE[OPER and has deteouiked that Paid proposal will sates the
interests of the citizens of Bangor;
HOW, TBENEFOM, in consideration of the option fee(s) paid w the Cm by
the IE LCPSR in accordance with SactiOn A, Paragraph 2 (a) below and of the
mutual ocnditions and covenantscontainedherein, the parties agree as follows:
S=Q1 A. GiNNP OE OP m
1. Grant of qatim. The CITY grants and the �R accepts an
exclusive kption to KNUCOnswe Said Premises for development of a camiercial
Wilding containing at least 30.000 square feet of retail and/or office space,
and a Pal*IM lot or structure 00htainimg at least 138 parking spaces at a total
estimated coat of at least $2,E00,000 In accordance with the tenor and
Coditions of this Option Agreensnt. 'lire purchase prire for Said Prmifaes shall
he 'thirty Thousand Milan ($30,000.00), W be paid to CM in cash or by
cettified or bank check at the time of Closing On the sale of Said Premises,
less any amounts paid by TEYFSOPER W CITY pursuant to this Option Agreement.
2. Price ad I.eng[h of option. This option Agreenent shall ruin in
effect frau the date I�azeof until , 19 . The non-refundable
Option fee for said 84 math pericd is Eight 'hausam and coot Hundred collars
($8,400.00) , .dnich shall be paid W CITY in cash Or by certified or bank check
at the rate of Ore Hundred wllars ($100.00) per month, which shall be payable
in advance.
All option fees paid by DEVELOPER W CITY under this Agreement shall he
applied towards the purchase price at the time of ccs a anoe of the property to
00VEfOPER; proaided, however, that the option fees shall be forfeited to CITY if
the IDV LQPZR does not purchase Said Prouises in accordanco with the tears and
condition of this Agreement.
3. Exercise ofOption. To exercise its right to purchase Said Premises,
ft:VBICBER &Yam f�uxry in writim before the expiration of this
Option Agrement or any extensions) thereof,
4. Pon v within 30 days, or such other time as the parties may
agree upon, of the CITY'S recoipt of DEVELOPER'S notice under Paragraph 3 shore,
CITY will convey all of its right, title, and interest in Said Premises to the
EEV¢oPER by municipal Quitclaim Deed, subject however W the renditions,
restrictions, am covenants contained in Sections S ad C below.
5. Ri ht of Ent . wring the option period and any renswal(s) or
extensim(s) thereof, rmm.IAPER shall lave the right, an reasonable notice
W and consent by the City Engineer, to enter upon Said Premises with nen and
examinee for the preparation of feasibility studies am construction plans.
Such entry shall he at DEVMOPER'S sole risk and expense, and the DEVELOPER
covenants and agrees W indamlfy, defend, and held the CITY harmless fron any
claims for personal injury or property damage suffered by reason of entry upon
Said Premise& by its agents or employees, or anyone acting m
DEVELOPER'S behalf. Prior W any entry hereunder, DEVELOPER shall first obtain
liability insurance for this purpose in such anwunt(s) of coverage satisfactory
to CITY with the CITY as an additional named insured and provide the CM with
written evidence themcf. All work shall be sore in a manner that causes the
least possible disturbance t0 Said Promises, and IEVBLOP6R covenants and agrees
that the exercise of its rights under this paragraph shall be done in a
worimenlike meaner and that DE+IEIOPER shall repair any damage W Said Promises
resulting fran the exercise of said rights.
SECDICN. B. Cl14DITIMS PRECEDENT M S4 OF SLID PREMISES
Prior to the sale of Said Premises the IsvtwPfa shall complete the
following:
1. Submission of Plane. The development and use of Said Premises as
inmiperatel rnW the DWEICPER'S final plan shall be in Substantial oonformence
with the scope of development described in Section A, Parag yh 1 above and the
DEVELOPER'S presentation W CMIs Design Review and site Plan Review Coaoittm
(hereinafter "Camittee") an Mareh 4, 1985 and the planus Prepared by Webster
Baldwin Dey Wyman, Aichitecm, dated March 4, 1985, copies of which plans are
M file in the office o£ the Department of Planning aN Csmmunity Development,
City Hall, 73 Hazlcx Street, Bangor,. Mire.
My development and use of Said Promises shall cmVly with the
following development standards:
a. Minimmu Int Coverage: 668.
b. Minhmsn Building Height: 3 stories above the
Exchange Street grade
C. MaXimr BamlOpmment Permitted: Floor Area Patio
of 1.6.
d. Minimis Development Permitted: Floor Area Patio
Of 1.0.
e. Off -Street Parking: ceveloper shall provide such off-street
parking as the Committee may dean necessary for the proposed
development; Pro lded, however, that in On event shall such'
Parking be less than 38 spaces.
All terms used in this paragraph shall to defined in accordance with the
Provisions of tha Zoning Ordinance of the City of Bangor and any applicable
agents thereto or mplacenents thereof.
By no later than Becenber 31, 1990, the BEVEIDPER shall meet with the
Committee and submit for its approval preliminary plans as specified in Section
C, Paragraph 1 of City Council Ordar No. 83-123, a copy of which is attached
hereto as Exhibit B and inoorporeted herein by reference. If revisions to the
preliminary plan are defused necessary Or appropriate by the Committee, the
Pions must be se revised and submitted to the committee for its approval by no
later than July 1, 1991.
By no later than Beceder 31, 1991, the DEVEPgPER shall meet with the
Coumittee and sMmit for its approval final plane and related drawings,
apecifieatims, and &cmnants in the form specified in Section C, Paragraph 2 of
said Council Order No. 83-123. If revisions m the final plans am deem i
necessary or appropriate by the W ittae, no plans soat be an revised and
subsitte3 to the Committee for its approval by no Later than
2. Amendment to Fiml Plans. If the BEVEfAPER desires to make any
substantial alterations Rthe plans after their approval by the
Camfttee, the phVQAPEN shall submit the proposed change in writing to the
Camnittsa for its approval. If the final plass, M modified by the proposed
Charge, still conform to the requirement of Paragraph 1 Of-Section B hereof, the
Committee shall not Unreasonably withheld approval of the proposed change. The
Committee shall either approve or disapprove the foOPOsed charge within ten (10)
days after its submissim and notify the tkUEl M of its decision.
3. Construction PrOgreas Schedule. COOCurnntly with the submission of
the final plasm, the CEVEE m stall submit a construction progress schedule to
the C itba for its approval. Said progress schedule shall_,pmvida for the
mH
emexment of CCnotructim within three (3). moths after cicoin} and
mmmpletim of construction within eighteen (18) months fres the, mmmoncement of
construction, or such later data as the C ittee may approve.
4. Evidence of Financing. the CBVFIAPRB doll provide the CITY with
written, legally binding mmiitments, in a form satisfactory to the Cmmittae,
from acceptable lending institutions and/or governmental agencies for both
interim construction financing and 10 bem financing of the total proposed
davelgxreM as it is detailed in the plans referred to and appreved under
Paragraphs 1 and 2 of Section B hereof.
S. Construction Contract. lbe DEVERgPER shall provide the CM with a
certificate executed by �SR and its general contractor for
o tructim of the total develOPmant certifying be the existence of such a
contract Inc the construction of me total development in accordance with the
provisions of Paragraphs 1, 2, and 3 of section B hereof. Said certificate mast
be in such form and contain suds substance M may be acceptable to CITY'S legal
repartuent.
6. PerfonnanCa Sand. 49e DEWYQPER shall raquirs its general contractor
to obtain both a pew bona and a labor and material palnreM bond issued
by a corporate surety licensed to do business in the State of Maine, each in a
Penal sono equal to the total estimated cast of the total proposed development,
to secure PermOtMee of the obligations contained in Paragraphs 1, 2 and 3 of
Section B hereof, a.'VQ M shall submit W the CITY a C Py of the bonds and
written evidence of payment of fire magaimed prmdoms. the bonds most remain in
effect until the CITY'S issuance of the certificate of Cmpletim under
Paragraph 12 of Section C bereof.
7. Permit Remllremmlt. PE'VBLnPER shall obtain, and shell provide
satisfactory evidence mem to the CITY, every permit, license,- and
goveremental approval necessary for commencement and impletion of said
development inCludiM, but not limited to, Bangor Planning Board approval if
required.
B. Public Disclosure. If requested by CITY, DERnPIUPER shall subrit
"Redeveloper's Statement for public Disclosure" and •Redevel pees Statement of
oualificatiore and Financial Pesponsibility" (HUD Poem 6004 (9-69)7.
SECTIM C. - Q DITIWS SO&S ENI 'IC BARE nF SAID PREMISES
The folimig express conditions, covenants and restrictiew will be
inmzporated into mrd become an express part of the peed as "covenants running
with the land':
1. Deni Covenants. It is intended and agreed, and the Deed aball an
expressly provide, that the express coalitions, covenants, am restrictions
provided in Section C hereof shell be covenants "running wird the land" and Nat
they shall M binding, to the fullest extent permitted by law and equity, for
the benefit and in favor of, ana enforceable by, the CITY and any successor in
interest to Said Promises or any part thereof for the time pgpiede specifically
prescribed herein for each.
2. use Restriction. The � agrees for itself, and every
successor in nte� rest to Said Promises, er any part thereof, and me Deed shall
contain express covenants an Ne part of the R6VQgPF.R for itself, and such
Sc censors arc] assigns, that Saw Premises and any improvements which may be or
may benne located thereon shall be need, oonstructed, developed, occupied
and/co maintained in acccm a e with the laws, ordinances, or regulations of the
Stale 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 subject setter, IFVS M agrees that Said Premises and any improvements
which may to or may benne located thereon Null be governed by the most
restrictive of said law(s).
3. anti -discrimination. The �ER agrees for itself, act every
successor in Interest ro Said Premises, or any part thereof, and the peed shall
contain express covenants on the part of the neVEtOPBR for itself, and such
successors and assigns, net the pEVEI M, and such successors and assigns,
shall not discriminate ups the basis of race, color, creed, national origin,
sex, or Physical hadicap in the sale, least, or rental, or use or ocoupency of
Said Prenises or any thereon. 'Mia ccnenant shall run in
perpetuity. This covenant against discrimination Niall he binding for the
benefit and in favor of, and enforceable by, the CITY and the United States of
America against the IEVEfCefm and every successor in interest to Said Pt ises
oranypart thereof.
4. Property Taxes. The pEVEfAPER agrees for itself, and every successor
in interest to Said Premises, or aay part thereof, and He peed shall contain
express covenants on the part of the hCeflCPSt for itself, and such successors
and assigns, that Said Pramises shall be subject to all taxes and assesanents as
may be imgaed by any govermental authority upon the afoxedescrited preaises
and any buildings, structures, or improvements which may N or may benne
located Hereon. It is the intent of the parties hereto, and BeV pER hereby
agrees Nat 1t does heraby waive, for itself and any successors in interest, all
right or privilege of ex®Ptim frau municipal taxation of He" aforedescribd]
ptamises and any buildings, structures, or improvements which may be or may
become located Vernon, as may he available by reason of t$.YEfDPSt'S or such
successors legal status, or for any other reason whatsoever, and that the City
Of Bangor, in its capacity as a taxing authority, may assess all taxes and
assesmnents as world othetwiss be applicable to the aforedescribed premises,
buildings, structures or img amens which may be or may herons, located
thereon, as if such exmption did not exist. ofgf PSt further agrees, for
itself and any successors in interest, to pay said assessments on or before the
data nim which the same be*sne due and payable. Provided, however, that cm
agrees that pEVS<)PER, or its successors in interest, shall have the right to
contest the arnmt of such texas or assessments In the manner prescribed by law.
5. Ban Co Subdivision. The SivE RR agrees for itself, and every
successor in interest to Said Premises, or any part thereof, and the Bond shall
contain express covenantr on the part of the pEYS9PER for itself, and such
successors and assigns, that Said Prenists shall not H suWivided without the
express written consent of cm. for the pnrpone of this paragraph, the
following shall not be deemed to constiwte a sindivisim: .,
a. Development of the project by separate development entities.
b. Developnent a the project as a condoxinim pursuant to
the Maine Condaxiniux Act (33 M.R.S.A. Sec. 1601-101 at sed.).
6. Ban on land Speculation. the [£veVJPM represents and agrees that
its purchase orsaid Pranises and its other undertakings pursuant to this option
Agreexent are and will be used for the purpose of develgment of Said Praxises
in accordance with Paragraph 1 of Section B hereof and not for speculation in
land holdings; provided that this covenant shall terminate upon the CITY'S
issuance of the Certificate of Canpletion under Paragraph 12 of Section C
hereof.
]. APPrwal of 1Tansfer Prior to P2 tion. The t>BVFdDPER recognizes
that the goal fah f ca i[y of t u Iy VEi SR, and its principals or, any
succeamrs in interest, are of particular councro LO the CM, The p.N ER
further recognizes that it is because of such qualifications and identity that
the CITY is entering into this Option Agreaoent and is willing to accept and
rely an the obligations of the, DEVELOPER for the faithful perfoa xance of all
undertakings and covenants to be performed by it. Therefore, the L8V6f W
represents and agrees for itself, its successors and assigns that, except only
by way of security for the p rpose of obtaining financing necessary to enable
the DEVELORM or any approved successor in interest to Said Praxises to perforn
his Obligations with respect to making the ton emmhts under Section a hereof,
the IEVELOPER has act made or created, and cast it will not prior to the CITY'S
issuance of the Certificate of Cxxpletim under Paragraph 12 of Section C
hereof, make or create, or suffer to be rade or created, any total or pattial
sale, aesignuent, omveyannce on lease, or any trust or power, or transfer in any
Other node or fom of, or with respect to this Option Agreamnt for Said
Pasuises, or any part thereof, or interest therein, or any contract or agreaxen[
W as, MY of the same without prior written approval of the CITY.
The CM shall be entitled to require as Conditions to any such
approval that:
a. Any Proposed transferee shall tame the qualifications and
financial responsibility, as determined by the CM by written evidence
suhxitted to it, necessary and adequate to fulfill the obligations
undertaken under Section B hereof;
b. Any proposed transferee, by instrument in writing satisfactory
W the CITY and in a form recordable in the Penobscot: Registry of Deeds,
shall for itself arc! its successors and assigns, and expressly for the
benefit of the CM, -barna expressly assured all of the obligations of the
�M under this Option Agreexent and agreed to be subject to all of
the conditions and restrictions to which the tEVbTAPER is abject under
Section C hereof; and'
C. the consideration payable for the transfer pry the transferee or
en its behalf shall not exceed an amount representing the actual cost to
the BEVEpPER of Said Preeises and the improvements, if any, theretofore
made thereon by it; it heing the intent of this Provisim to preclude
saigmlent a the agreaneot or transfer of Said Premises for profit prior to the
CITY'S issuance of the Certificate of Canpletim under Parmusph 12 and to
Provide that In the event that any such assigmont or transfer is made the CM
shall he entitled to increase the purchase price to the DEVEMPER by the amunt
that the comideratim Payable for the assignment or transfer is in excess of
the mount that may m authorized pursuant to this subparagraph c. and such
crosideratim shall, to the extent that it is in excess of the anount so
authorized, belong and forthwith be paid to the My.
Thu foregoing provisions of this Paragraph 7 notwithstanding, the
DEVELOPER may assign this OPtim Agreement and all rights and duties herein,
subject to tho teem and conditions hereof, to a developeent entity hereafter
organized and qualified by DEVELOPER under the laws of the State a Maine;
provided, however, that ❑3VEbVSR shall retain an active imrolvane t in said
entity and said entity shall assume, in a writing satisfactory to the =, the
Obligation to cenplem, in the manner provided for in this Option Agreement, the
contemplated inorovenents on Said Premises. Purtheerore, said entity moat
submit evidence satisfactory to the CITY that it h s the qualifications and
financial responsibility necessary to perform such obligation.
All covenants contained in this Paragraph 7 shall teminam upon the
CITY'S issuance of the Certificate a Coapletim wrier Paragraph 12 of Section C
hereof.
8. Mortgages prior to mmoletion of inmroverents.
a. Prior to the canpletion a the impmvarents as certified by the
CITY, neither the DEVE4 M nor any successor in interest to the Said
Premises m any part thereof shall engage in any finsncing or my other
transaction creating any mortgage or my other shounbraum or lien upon
Said Pranises, whether by express-agreen of or Operation of law, or permit
MY encumbraros Or lieu to be made On or attached to Said Premises, except
for the purpose Of Obtaining funds recemary for makbg tepnroeients and
additional funds not to exceed the purchase price of Said Premises paid by
the DEVELOPER to the CM. The n Sigpfh shall notify the CITY in advance
of 6PV amrtgage financing it proposes to enter into with respect to Said
Premises, and of my encumbrance or lien that has boon created on or
attached te Said Preniess, whether by voluntary act Of the [£VE Sa or
otherwise.
b. The holder of my mortgage authorized by this Option Agreement,
including any such holder who obtains title to Said Prenises or any part
thereof m a result of foreclosure proceedings or action in lieu thereof,
shall not he obligated by the provisions of this Option Agreement to
construct or couplets the impro ements Or to guarantee such cmstrvctim or
caMPletim. NO covenant or my other provision in any deco shall he
construed so to obligate any such holder. HOwaver, neither such holder nor
I successors Or assigns Shall ho authorized to devote Said Proniess or
MY part thereof to my uses, m to Construct any in'ptovarents thereon,
Other than those uses or inprovenents provided or authorized in this Option
Agrement.
All oovenants contained in this Paragraph 8 shall terminste upon the
CM'S issuance of the Certificate of Carybletim under Paragraph 12 of Section C
hemof.
9. Notice of default to Mrtgame.
a. VAerever the CITY shall deliver or make any notice or demob to
the t ELCPM wish respect to any breach or default by the [£VE M in its
obligations or covenants under this Option Agreement, the CITY shall at the
sees, time deliver W each holder of record of any mortgage authorized by
this agreeoent a ropy of such notice or daeami. Each such holder shall,
insofar as the rights of the CITY are ceoemed, have the right at its
option to cure such breach or default and to add the cost thereof W the
mortgage debt and the lien of its nortgage. Roaaver, it the breach or
default is wish respect to mns[mctim of the hmprovaxnts, such holder
may cot undertake or continue the Instruction or conpletim of the
vegtro+amahm beyond the extent cecessary to conserve or protect
inPraymrenm or construction already made without first having expressly
asamad in writing the obligations W the CITY W complete, in the manner
provided in this Option Agraanent, the impr anenW on Said Iranians or the
Past theeeof W Mich the lien or title of such holder relates, and having
Submitted evidence satisfactory to the CITY that it has the qualifications
and financial responsibility recessary to perfore such obligation. MY
such holder who shall properly armplete the L. rcvemenes relating to Said
Pranises or applicable part thereof shall he entitled, upon written Bequest
made W the CITY, to a certification by tho CITY to such effect in a manner
provided in Paragraph 12 of this Section of the CPtim Agreement. Such
certification shall, if an requested by such holder, provide that any
mealy with respect W revesting of title to Said Premises that the CM
shall have because of failure of the OEVELWER to cure any default wish
respect to the construction of the bprovemnts on other parts of parcels
Of Said PmMiSaS, or because of any otter default in or breach of this
CPtim Agrement by the pE'vEf M, shall not apply to the part or parcel of
Said Iranians to which such certification relates.
b. If subsequent W default by the �PER under this Option
PgmaneM, the holder of any mortgage on Said Premises or part thereof does
rot exemrae the Option to Construct or OMeplete the improvements relating
W Said Pranises or part thereof covered by its mortgage or to Mich it has
obtained title within 60 days after the holder Me been notified of the
default or undertakes mRpletim of the improvaeents but does not co pless
construction within the period as agread upon by the CM and such holder,
the CITY shall have the Wtim of paying to the holder the mount of the
mortgage debt and securing an assigment of such debt and of the nortgage.
If ownership of Said Premises or part thereof has vested in such holder by
way of foreclosure or action in lieu thereof, etre CITY shall he entitled,
as its option, W a 0=10yanca to it of Said Premises or pact thereof upon
payment W such holder of an aeon equal W the sun of the martgage debt
at the time of foreclosure Or action in lieu thereof less all appmpriaW
credits, including those resulting frau collection and application of
rentals received during foreclosure proceedings; all expenses with respect
W the foreclosure; the not expenses, exclusive of general overhead,
incurred by such holder in and as a direct result of the subasammt
smagarent of Said Premises; the cost of any ivprovanents male by such
holder; and an a aunt equivalent W the interest that would have accrued on
the aggregate of such amounts had all such a bo manna part of the
nortgage debt and such debt had continued in existence until such
acquisition by the CM.
C. In the event of a default by the 149®0PRR in its Obligations
under any m,rtgage or other instrunent creating an encunbrance upon Said
Premises or part thereof prior W conpletlon of Lnprwaments, the CITY say
at its ptiml cure such default or breach. In such case the Cm shall be
entitled, in addition to and without limitation upon any other rawady to
which it shall he entitled by this Cation Agre w nt, aeration of law, ar
Otherwise, to reimbursarent frau the DEVE M or mccessor in interest of
all costs and expenses incurred by the CM in curing such default or
breach, and to a lien upon said Pranises or part thereof to which the
mortgage, encumbrance, or lien relates to secure such reLotwrsenent.
d. For the purposes of this and other Paragraphs Of this option
Agreement, the here holder in reference to a mortgage shall be deemed W
include any insurer or guarantor of any obligation or condition secured by
such mortgage, including but not limited W the Federal !busing
Cemissionmr, the Adninistrator of Veterans Affairs, and my successor in
Office of either such official.
All covenants contained in this Paragraph 9 shall terninte upon the
CITY's issuance of the Certificate of Completion under Paragraph 12 of Section C
hereof.
10. Title Reversion far Default Prior to 6anpletion. In the event that
Prim W the CITY'S issuance Of the Certlf este of Completion under Paragraph 12
Of Section C hereof:
a. The hByFI0PER, or its successor in interest or assign, shall
default in or violate its Obligations with respect to the construction of
the bepreveonts (including the nature and the dates for the beginning and
canpletion thereof), Or shall abandon or substantially suspend construction
work, and any such default, violation, mandament, or suspension shall but
be cured, ended, or renediei within throe (3) months (six (6) eonths, if
the default is with respect to the date far canpletion Of the imgnmvaments)
after written daiani by the CM to do an; ar
b. The UEUEfOPRR, or its successor in interest or assign, shall
fail to pay real estate taxes or maesanents on Said Prehisee or any part
thereof when due, or shall unlace thereon any aoebrance or lien
ceuthorised by Section C hereof, or shall suffer any levy Or attachment W
be male, or any materialmen's or mechanics' lien, or any Other unauthorised
encu brance or lien to attach, end such taxes or asseamaents shall not have
been Paid, Ch the encumbrance Or lien ra avei or discharged or provision
satisfactory W the CITY made far such payment, rmwal, or discharge,
within Nifty (30) days after written co erd by the CM to do so; or
C. The dYFCCP&3, or its successor in Intent or assign, shall
file a petition in bankruptcy or be declared Wakrupt Or insolvent, or any
assigment shall ba made for the benefit of creditors, or an. involuntary
petition for bankruptcy shall be filed, o r, trustee in
bankruptcy or similar officer shall be appointed to take charge of all or
any substantial part of the m^hIDP 's pr party, and such Petition,
amigmnent, M appointsent is not dismissed Or released within thirty 130)
days of the date the petition is filed or the assignaent or appointment is
made; or
d. There is n violation of Section C heof, any transfer of the
Said Premises or any re
part thereof, ar any change in ownership of the
IEVEIDPER, except as expresslY permitted in Paragraph 7 of Section C
hereof, and such violation shall not rd cured within thirty (30) days after
written dmsazd by the CITY to the WEIDPER:
than the CITY shall have the right to re-enter and take lcmession of the Said
Premises and to terminate and revem in the CITY the entire estate conveyed by
the Deed to the pEVFIDPER as if no peed had ever been given; it being the intent
Of this provision, together with other provisions of Sectim C hereof, that the
conveyance of the Said Premises to the DENMOPER shall be male upon, and that
the Deed shall contain, a ttmdition subsequent to the effect that in the event
of any default, failure, violation, or other action or in -action by the
CENE[ M specified in subparagraphs a., b., c. ane d. of Paragraph 10 of
Section C hereof, failure on the Part Of the dNEIDPER to re tly, end, or
abrogate such default, failure, violation, or other action or inaction, within
the period and in the namer stated in such subparagraphs, the CM at its
option may declare a ternination in favor of the CM of the title, and of all
the rights and interests in and to the Said Premises conveyed by the Deed to the
DVEn M, and that such title and all rights and interests of the �IDPER,
and any assigns or successoes in interest to act in Said Pranises shall revert
W the CITY; provided, however, that such condition subsequent and any revesting
Of title as a result thereof in the CITY shall always be subject to and limited
by, and shall not defeat, render invalid or limit in any way: (1) tat 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 hwrtgages.
Its, CITY shall have the right W institute such actions or
proceedings as it nay dean desirable far effectuating the purposes of this
Paragraph 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
deClaratim of the termination of all the right, title end interest of the
IEW"ER, its successors in interest and assigns, in Said Presises and the
revesting of title thereto in the CITY; prcuided, however, that any delay by the
CM in instituting or prosecuting any soon actions or proceedings or otherwise
alerting its rights under Section C hereof shall mt operate as a waiver of
such rights or to deprive it Of or limit wch rights in any way. '°
The express Conditions, covenants, and restrictions mntainred in this
Paragraph 10 shall terminate upon the CITY'S issuance of the Certificate of
Chnpletion under Paragraph 12 of Section C hereof.
11. Dispositim Dem !eversion. Llan the revesting in the CITY of title
to Said Premises OC any par[ thereo e6 provides in Paragraph SO of Section C,
the CITY shall in WOOCdanm with State law use its best efforts to resell Said
Pramfssa Or part thereof, subject to my existing mortgage liens, as soon and in
such rammer as the CM shall find feasible act consistent with the Objectives
of developing Said Ptenises for residential co dminima use to a qualified and
responsible party or parties, as determined by the CITY, whi will assure the
cbligation of making or oo i letfrg the ift nvaents or such Other improvments
in their stead as shall he satisfactory to the CITY.
11
applied: nPon the resale of Said Pramises, the proceedsthereof shall he
a. First, to reimburse the CITY for all costs and expenses
incurred by the CITY including but not limited to salaries of personnel in
Enaction with the recapture, maegenent, and resele of Said Pranises or.
part Hereof (but less any inane derived by the CITY fma the Said
Premise or part thereof); all taxes, asaesanen[s, water, Saxer and other
Utilityscharges wish reagent to Said Prenises or part thereof; any payments
made or necessary to be male to discharge any ercumbrances or liens
existing on Said Premises os part thereof at the tlme of revesting of title
thereto in the CM or to discharge or prevent free attaching or Being made
any subsequent escushrances or liens due to ebligatlore, defaults, or acts
of the DEVELOPER, its successors or assigns; any G) ndituras made or
obligations incurred with respect to the making or conpletiai of the
improvements or any part thereof on Said Promises or part thereof; and any
amsUn" otherwise 061irg the CITY by the DNgLOWER and its successor or
assign; and -
b. Svwnd, to reimburse the OERIIXPER, its successor or assign, up
W the amount equel to (1) the sun of tM purchase price paid by it fon the
Said Pranises or part thereof and the cash actually invested by it in
making ay of the Improvmnnts on Said Preofsea or part thereof, less (2)
any gains or incove withdrawn or made by it.
My balance renaining after such reimburaerent shall to retained by the CITY as
its Property.
the express conditions, Covenants, and restrictions contained in this
Paragraph 11 shall terminate upon the CITY'S iswance of the Certificate of
Cmpletion under Paragraph 12 of Section C hereof.
12. Certificate of Gmoletion. Peunptly after eaopletion of the
fmProsar fs n acwraan:ce w t PmvISIMS of this Option Agreement, the
CITY will furnish the � with an appropriate instoxnant so certifying.
Such certification shall be in such form as will enable it to sh recotdad in the
Penobscot Registry of needs. The CMOs issuanoe of the Certificate of
C(mpletion will constitute comlusive Prbof of the satisfaction and termination
of the express conditions, covenants, ant restrictions contained in Paragraphs
S, 7, 8, 9, 30. ant 11 of section C hereof.
If the CITY shall refuse or fail to Provide such certification, the
CM shall, within thirty (30) days after written request by the CSvSlCPER,
Provide the CEVDCPER with a written statenent indicating in adequate detail in
what respects the D;VEDOPER has failed W cmgIete the haproamients in
actordance with the Provisions of this Cation Agreement and what measures will
be necessary, to obtain suth certification.
13. Notice. My notice under this Option Agreement by either party to
the other stroll bs sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt regaested, as,
delivered personally, and
12
a. in the case of the OLUEf W, is addressed t or dellvarsd
personally to the DEV6f/JPER, 183 Harlow Street, Bangor, Maine, 04401.
b. in the case of the CITY, is addressed to or delivered
personally to the CITY, c/o City Manager, City Mall, 73 Harlow Street,
Bangor, Maine 04401,
Or t such other persons or addresses as the parties my designate in writing to
the other.
IN WFIN WHEREOF, the parties hereto have set their hands the day and
year first written above.
CTTY OF B R
Witness BY
John W. Flynn Ma
Its City Manager
Witness
PrDOm Ot, as.
IXCIL u S1R8E3 MSOCIAR
By
Its General Partner
Mn OF MAINE
1985
'Kien persmally appeared the above mard JOEN W. FLW, in his capacity as
the City Manager of tl,e City of Bangor, and ac Hedged the foregoing
instrW nt to be his free act and deed in said capacity and the Esse act am
deed of said City cf Bangor.
Before w,
Printed Nave:
Justiceofd
NOtsry Publio
Attorney at Law
EP OF MAINE
MKb..CVt,
as.
Im
Shen personally appealed the above namd
his capacity as General Partner of E=hage street Associates, and acknowledged
the foregoiN insttwmnt to he his free aR and dead in said capacity and the -
free act and deed of said tb[poration.
Before me,
Print Nam:
Just ce of the Peace
Notary Public
Attcn at I