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HomeMy WebLinkAbout1985-06-24 85-248 ORDER85-248 Introduced by Councilor Bronn, June 24, 1985_ CITY OF BANGOR (HRF.) (Drurf ._..A..u....thor a ng Execution o xe t o f Option Agreement with _.._ .......... Houlton Band of Maliseet Indians development Corporation - Parcel B-11 BY W City/ Cmmait ofB a Caro of8anpor: ORDERED, TEAT the City Manager is hereby authorized and directed,, n behalf of the City of Bangor, to execute an Option Agreement with the Houlton Band Maldseet Indians Development Corporation, .for redevelopment of Parcel B-11, a copy of which is on file in the office of the City Clerk. Statement of Fact: Previously the Bangor City Council authorized the execution of an Option Agreement for the redevelopment of Parcel B-11 with the Houlton Band of Maliseet Indians Development Corporation. The Optionee has not executed the Agreement, and has requested changes. The purpose of this Order is to authorize the execution of a revised option agreement for the parcel. IN CPTY COUNCIL June 24,. 985 Passed CITY CmNNN 85-248 0R➢ER Title, AothorS inq E2ecotion of Option Agreement 4. with Houlton Baul of Maliaeet IneianeyF .................... 4.................. Development Corporation - Parcel 9-11 Introducedandfiled by CowciLn9n OPTION AGREEMENT FOR PURCHASE OF URBAN RENEWAL PARCEL B-11 THIS AGREEMENT is made this day of 1985, by and between the CITY OF BANGOR, a municipal corporation located in the County of Penobscot, State of Maine (hereinafter 'CITY"), and the MOULTON HAND OF MALISEET INDIANS DEVELOPMENT COR- PORATION, a Maine corporation having a place of business in Bangor, County of Penobscot, State of Maine (hereinafter "DEVELOPER"). WITNESSETH: WHEREAS, as a part of its duly adopted and approved Community Development Plan (hereinafter 'Development Plan') the CITY has acquired and owns the real property commonly known as the former Urban Renewal Authority, Parcel 8-11, located on Exchange Street in Bangor, County of Penobscot, State of Maine (hereinafter "Said Premises"), all as more particularly identified on Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, in accordance with its Development Plan, the CITY has determined that the private development of Said Premises in accor- dance with the provisions of this Option Agreement and the Develop- ment Plan would best serve the interests of the citizens of the CITY; and WHEREAS, the CITY has received a proposal for the development of Said Premises from the DEVELOPER and has determined that said proposal will serve the interests of the citizens of Bangor; NOW, THEREFORE, in consideration of the $1,200.00 paid to the CITY by the DEVELOPER in accordance with Section A, Paragraph 2 (a) below and of the mutual conditions and covenants contained herein, the parties agree as follows: , SECTION A. GRANT OF OPTION 1. Grant of Option. The CITY grants and the DEVELOPER accepts an exclusive opt -T to purchase Said Premises for develop- ment of amixed-use complex containing approximately 71,250 square feet of retail and/or office space, a 9,000 square feet multi- purpose arena, 15 residential condominium units of approximately 1,350 square feet each, and a parking lot or structure containing 113 parking spaces at a total estimated cost of at least $6,600,000.00 in accordance with the terms and conditions of this Option Agreement. The purchase price for Said Premises shall be $60,000.00, (to be paid to CITY in cash or by CertifiedorBank Check at the time of closing on the sale of Said Premises, less any amounts paid by the DEVELOPER to CITY pursuant to this Option Agreement). 2. Price andLength of Option. This Option Agreement shall remain in effect from the date hereof until December 31, 1985. The non-refundable option fee for said s month period is Three Thousand Six Hundred Dollars 151,2001001, which shall be paid to CITY in cash or by Certified or Bank Check at the time this Option Agreement is executed. The Option Agreement may be extended upon prior approval by the City Council of the City of Bangor for any additional period of time not to axceed an additional six (6) months at the rate of Six Hundred Dollars(8200.00) per month,which shall be payable in advance. All option fees paid by DEVELOPER to CITY under this Agreement shall be applied towards the purchase price at the time of convey- ance of the property to DEVELOPER; provided, however, that the Option fees shall be forfeited to CITY if the DEVELOPER does not purchase Said Premises in accordance with the terms and conditions Of this Agreement. During the term of this Option, the CITY shall have the continuing right to operate the premises as a public parking lot. 3. Exercise of Oot ion. To exercise its right to purchase Said Premises, DEVELOPER shall a notify the CITY 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 CITY'S receipt of DEVELOPER'S notice under Paragraph 3 above, CITY will convey all of its right, title, and interest in Said Premises to the DEVELOPER by Municipal Quit- claim Deed, subject however to the conditions, restrictions, and covenants contained in Sections B and C below. rene 5. Ri ht f Entr During the option period and any we (e) or extens¢on�s thereof, the DEVELOPER shall have the right, on reasonable notice to and consent by the City Engineer, to enter upon Said Premises with men 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 harmlessfromany claims for personal injury or property damage suffered by reason of entry upon Said Premises by DEVELOPER, its agents or employees, or anyone acting on DEVELOPER'S behalf. Prior to any entry hereunder, DEVELOPER shall first obtain liability insurance for this purpose i such amount(s) of coverage satisfactory to CITY with the CITY as ae 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 to Said Premises, and DEVELOPER covenants and agrees that the exercise of its rights under this paragraph shall be done in a workmanlike manner and that DEVELOPER shall repair any damage to Said Premises resulting from the exercise of said rights. SECTION B. CONDITIONS PRECEDENT TO SALE OF SAID PREMISES Prior to the sale of Said Premises the DEVELOPER shall complete the following: 1. SubmiSSiOn of Plans. The development and use of Said Premises asncorpor� ete—�he DEVELOPER'S final plan shall be in substantial conformance with the scope of development described in Section A, Paragraph 1 above and the DEVELOPER'S presentation to CITY'S Design Review and Site Plan Review Committee (hereinafter "Committee") on April 1, 1985 and the plans entitled •Maliseec Gardens, Bangor, Maine", prepared by Webster-Baldwin-Day-Rohman, Architects, dated April 1, 1985, copies of which plans are on file n the office of the Department of Planning and Community Development, City Hall, 73 Harlow Street, Bangor, Maine. Any development and use of Said Premises shall comply with the following development standards: a. Minimum Lot Coverage: 799. b. Minimum Building Height: 2 stories above street grades. C. Maximum Development Permitted: Floor Area Ratio of 1.6. d. Minimum Development Permitted: Floor Area Ratio of 1.0. e. Off -Street Parking: Developer shall provide such off-street parking as the Committee may deem necessary for the proposed development; Provided, however, that in no event shall such parking be less than 113 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. - By no later than April 22, 1985, the DEVELOPER shall meet with the Committee and submit for its approval preliminary plans as specified in Section C, Paragraph 1 of City Council Order No. 83- 123, a copy of which is attached hereto as Exhibit B and incorporated herein by reference. If revisions to the preliminary plans are deemed necessary orappropriate by the Committee, the plans must be so revised and submitted to the Committee for its approval by no later than August 4, 1985. By no later than September 26, 1985, the DEVELOPER shall meet with the Committee and .submit for its approval final plans and related drawings, specifications, and documents in the form speci- fied in Section C, Paragraph 2 of said Council Order No. 83-123. If revisions to the final plans are deemed necessary or appropriate by the Committee, the plans must be so revised and submitted to the Committee for its approval by no later than October 25, 1985. 2. Amendment t0 Final Plans. If the DEVELOPER desires t0 make any substantial ab alterations 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 plana, as modified by the proposed change, still conform to the requirement of Paragraph 1 of Section B hereof, the Committee shall not unreasonably onably withhold approval of the proposed change. The Committeeshall either approve or disapprove the proposed change within ten (10) days after its submission and notify the DEVELOPER of Its decision. 3. Construction Yr sa Schedule. Concurrently with the submission o the fvnal p ans,the DEVELOPER shall submit a con- struction progress schedule to the Committee for its approval. Said progress schedule shall provide for the commencement of construction within three (3) months after closing and completion of construction within eighteen (18) months from the commencement of construction, or such later date as the Committee nay approve. 4. Evidence of F'nancin The DEVELOPER shall provide the CITY with written, legally rnding commitments, in a form satisfac- tory to the Committee, from acceptable lending ;institutions and/or governmental agencies for both interim construction financing and long-term financing Of the total proposed developmentas it i detailed in the plans referred to and approved under Paragraphs 1 and 2 of Section B hereof. Strict compliance of the DEVELOPER with all the terms and conditions of agreements with Lenders for said financing shall be a continuing condition during the term hereof to exercise the rights granted to the DEVELOPER under this Agreement. 5. Construction Contract.. The DEVELOPER shall provide the CITY with a certrflcate executed by the DEVELOPER and its construc- tion manager for construction of the total development certifying to the existence of such a contract for development in accordance with the provisions of Paragraphs 1, 2, and 3 of Section B hereof. 6. Performance Bona. The DEVELOPER and/or the DEVELOPER'S Construction Manger Sg Ya Y post with the CITY both a performance bond and a labor and material payment bond issued by a corporate surety licensed to do business in the State of Maine, each in a penal sum equal to the total estimated cost of the total proposed development, to secure performance ofthe obligations contained in Paragraphs 1, 2 and 3 of Section 9 hereof. DEVELOPER and/or the DEVELOPER'S Construction Manager 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 Paragraph 12 of Section C hereof. 7. Permit Requirement: DEVELOPER shall obtain, and shall provide satisfactory evidence thereof to the CITY, every permit, license, and governmental approval necessary for commencement and completion of said development including, but not limited to, Bangor Planning Board approval if required. S. Public Disclosure. If requested by CITY, DEVELOPER shall submit "Redeveloper's Statement for Public Disclosure" and 'Redevel- oper's Statement of Qualifications and Financial Responsibility" [BUD Form 6004 (9-69)]. SECTION C. CONDITIONS SUBSEQUENT TO SALE OF SAID PREMISES The following express conditions, covenants and restrictions will be incorporated into and become an express part of the Deed as "covenants running with the land": 1. Deed Covenants. It is intended and agreed, and the Deed shall so expressly proves, that the express conditions, covenants, and restrictions provided in Section C hereof shall be covenants nants "running with the land" and that they shall be binding, tothe fullest extent permitted by law and equity, for the benefit and i favor of, and enforceable by, the CITY and any successor in interest to Said Premises or any part thereof for the time periods specif- ically prescribed herein for each. 2. Use Restriction. The DEVELOPER agrees for itself, and every successor in n[�reSt to Said Premises, or any part thereof, and the Deed shall contain express covenants on the part of the DEVELOPER for itself, and such successors and assigns, that Said Premises and any improvements which may be or may become 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 game may now or hereafter be in effect. In the event that both the State and the City have law(s) governing the same subject matter, DEVELOPER agrees that Said Premises and any improvements which may be or may become located thereon shall be governed by the most restrictive of said Lewis). 3-. Anti-discrlmination. The DEVELOPER agrees for itself, and every successor 1n lntereat to Said Premises, or any part thereof, and the Deed shall contain express covenants on the part of the DEVELOPER for itself, and such successors and assigns, that the DEVELOPER, and such successors and assigns, shall not discriminate upon the basis of race, color, creed, national origin, sex, or physical handicap in the sale, lease, or rental, or use or occupancy of Said 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 Said Premises or any part thereof. <. Property Tax The DEVELOPER agrees for itself, and every succeasor in interest to Said Premises, or any part thereof, and the pend shall contain express covenants on the part of the DEVELOPER for itself, and such successors and assigns, that Said Premises shall be subject to all taxes and assessments as may be imposed by any governmental authority upon the aforedescribed premises and any buildings, structures, Or improvements which may be r may become located thereon. It is the intent of the parties hereto, and DEVELOPER hereby agrees that it does hereby waive, for itself and any successors in interest, all right or privilege of exemption from municipal taxation of the aforedescribed premises and any buildings, structures, or improvements which may be or may become located thereon, as may be available by reason of DEVELOPER'.S or such successors legal status, or for any other reason whatsoever, and that the City of Bangor, in its capacity as a taxing authority, may assess all taxes as would otherwise be applicable to the afore - described premises, buildings, structures or improvements which may be or may become located thereon, as if such exemption did not exist. DEVELOPER further agrees, for itself and any successors in interest, to pay said assessments on or before the date upon which the same become due and payable. Provided, however, that CITY agrees that DEVELOPER, Or its successors in interest, shall have the right to contest rho amount of such taxes or assessments in the - manner prescribed by law. S. Ban oa Subdivision. The DEVELOPER agrees for itself, and every successor 1n gest Go Said Premises, or any part thereof, and the Deed shall contain express covenants on the part of the DEVELOPER for itself, and such successors and assigns, that Said Premises shall not be subdivided without the express written consent of CITY. For the purpose of this paragraph, the following shall not be deemed to constitute a subdivision: Development of the project by separate development entities. Development of the project as a condominium pur- suant To the Maine Condominium Act (33 M.R.S.A. Sec. 1601-101 et sea.). 6. Ban on agrees that its puLand Speculation.' The DEVELOPER represents and rchase of Said Premises and its other under- takings pursuant to this Option Agreement are and will be used for the purpose of development of Said Premises in accordance with Paragraph 1 of Section a hereof and not for speculation in land holdings; provided that this covenant shall terminate upon the CITY'S issuance of the Certificate of Completion under Paragraph 12 of Section C hereof. L As rpoval Of Transfer pL10[ t0 'COmplet ion. The DEVELOPER cognizes that the qual3 ice<von and Odentzty of the DEVELOPER, and its principals or any successors in interest, are of particular concern t0 the CITY. The DEVELOPER 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 DEVELOPER for the faithful perfor- mance of all undertakings and covenants to be performed by it. Therefore, the DEVELOPER represents and agrees for itself, its successors and assigns that, except only by way of security rity for the purpose of obtaining financing necessary to enable the DEVELOPER or any approved successor in interest to Said Premises to perform his obligations with respect to making the improvements under Section E hereof, the DEVELOPER has not made or created, and that it will not prior to the CITY'S issuance of the Certificate of Completion under Paragraph 12 of Section C hereof, make or create, or suffer to be made or created, any total Or partial sale, assignment, conveyance r lease, or any trust or power, Or transfer in any other mode or form of, or with respect to this Option Agreement for Said Premises, or any part thereof, or interest therein, or any contract or agreement to do any of the same without prior written approval of the CITY. The CITY shall be entitled to require as conditions to any such approval that: a. Any proposed transferee shall have the qualifica- tions and financial responsibility, as determined by the CITY by written evidence submitted to it, necessary and adequate to fulfill the obligations undertaken under Section E hereof; b. Any proposed transferee, by instrument in writing satisfactory to the CITY and in a form recordable in the Penobscot Registry of Deeds, shall for itself and its successors and assigns, and expressly for the benefit of the CITY, have expressly assumed all of the obligations of the DEVELOPER under this Option Agreement and agreed to be subject to all of the conditions and restrictions to which the DEVELOPER is subject under Section C hereof; and C. The consideration payable for the transfer by the transferee or on its behalf shall not exceed an amount repre- senting the actual cost to the DEVELOPER of Said Premises and the improvements, if any, theretofore made thereon by it; it being the intent of this provision to preclude assignment of the agreement or transfer of Said Premises for profit prior to the CITY'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 CITY shall be entitled to increase the purchase price to the DEVELOPER 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 Paragraph > notwith- standing, the DEVELOPER may assign this Option Agreement and all rights and duties herein, subject to the terms and conditions hereof, to a development entity hereafter organized and qualified by DEVELOPER under the laws Of the State Of Maine; provided, however, that DEVELOPER shall retain an active involvement in said entity and said 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 Said Premises. Furthermore, said entity must submit evidence satisfactory to the CITY that it has the qualifications and financial responsibility necessary to perform such obligation. All covenants contained in this Paragraph Y shall termi- nate upon the CITY'S issuance of the Certificate of Completion under Paragraph 12 of Section C hereof. 8. Mortgages to completionf a. Prior to the completion of the improvements as certified by the CITY, neither the DEVELOPER nor any successor in interest to the Said Premises or any part thereof shall engage in any financing or any other transaction creating any mortgage or any other encumbrance or lien upon Said Premises, whether by express agreement or operation of law, or permit any encumbrance or lien to be made on or attached to Said Premises, except for the purpose of obtaining funds necessary for making improvements and additional funds not to exceed the purchase price of Said 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 Said Premises, and of any encumbrance or lien that has been created on or attached to Said Premises, whether by voluntary act of the DEVELOPER or otherwise. D. The holder of any mortgage authorized by this Option Agreement, including any such holder who obtains title to Said 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 in any deed shall be construed so to obligate any such holder. However, either such holder nor its successors or assigns shall be. authorized to devote Said Premises or any part thereof to any or to construct any improvements thereon, other than those uses or improvements provided or authorized in this Option Agreement. All covenants contained in this Paragraph 8 shall terminate upon the CITY'S issuance of the Certificate of Completion under Paragraph 12 of Section C hereof. 9. Notice of default to mortaa St. a. Whenever the CITY shall deliver or make any notice r demand to the. DEVELOPER with respect to any breach or default by the DEVELOPER in its obligations or covenants 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 shell, 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 10 or continue the construction or completion of the improvements 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 Said Premises or the part thereof to which the lien or title of such holder relates, and having submitted evidence satis- factory 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 Said Premises or applicable part thereof shall be entitled, upon written request made to the CITY, to a certi- fication by the CITY to such effect in sar provided i Paragraph 12 of this Section of the Option Agreement. Such certification shall, if sorequestedby such holder, provide that any remedy with respect to revesting of title to Said Premises that the CITY shall have because of failure of the DEVELOPER to cure any default with respect to the construction of the improvements on other parts of parcels of Said Premises, or because of any other default in or breach of this Option Agreement by the DEVELOPER, shall not apply to the part or parcel of Said Premises to which such certification relates. b. If subsequent to default by the DEVELOPER under this Option Agreement, the holder of any mortgage on Said Premises or part thereof does not exercise the option to construct orcomplete the improvements relating to Said 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 undertakes 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 Said Premises or part thereof has vested i such holder by way of foreclosure o action in lieu thereof, the CITY shall be entitled, as its option, to a conveyance to it of Said 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 fore- closure proceedings; all expenses with respect to the fore- closure; 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 cost of any improvements 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 a default by the DEVELOPER in its obligations under any mortgage or other instrument creating an encumbrance upon Said 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, operation of law, or otherwise, to reimbursement from the DEVELOPER or successor in interest of all costs and expenses incurred by the CITY in curing such default or breach, and to a lien upon Said Premises or part thereof to which the mortgage, encumbrance, or lien relates to secure such reimbursement. d. For the purposes of this and other Paragraphs of this Option Agreement, the term holder in reference to a ort - gage shall be deemed to include any insurer or .guarantor of any obligation or condition secured by such mortgage, including but not limited t0 the Federal Housing Commissioner, the Admin- istrator of Veterans Affairs, and any successor in office of either such official. All covenants contained in this Paragraph 9 shall tezminte upon the CITY'S issuance of the Certificate of Completion under Paragraph 12 of Section C hereof. 10. Title Reversion for Default Prior to Com le[ion. In the event that prior to the CITY'S ssuance of the Cert fzcate of CompletionunderParagraph 12 of Section C hereof: 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 substantially suspend construction work, and any such default, violation, abandonment, or suspension shall not be cured, ended, or remedied within three (3) months (six (S) months, if the default is with respect to the date for completion of the improvements) after written demand by the CITY to do so; or b. The DEVELOPER, or its successor in interest or sign, shall fail to pay real estate taxes or assessments on Said Premises or any part thereof when due, or shall place thereon any encumbrance or lien unauthorized by Section C hereof, or shall suffer any levy or attachment to be made, or any materialmen's ormechanics' lien, or any other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been paid, or the encumbrance or lien removed or discharged or provision satisfactory to the CITY Inde for such payment, r val$ or discharge, within thirty (30) days after written demand -by the CITY to do so; or 12 C. The DEVELOPER, or its successor in interest or sign, shell file a petition in bankruptcy or be declared bankrupt orinsolvent, or any assignment shall be made for the benefit OE creditors, or an involuntary petition for bankruptcy shall be filed, ora receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of all or any sub- stantial part of the DEVELOPER'S property, and such petition, assignment, or appointment is not dismissed or released within thirty (30) days of the date the petition is filed or the assignment or, appointment is made; or d. These is, in violation of Section C hereof, any transfer of the Said Premises or any part thereof, or any change in ownership of the DEVELOPER, except a expressly per- mitted in Paragraph 7 of Section C hereof, 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 Said Premises and to terminate and revest in the CITY the entire estate conveyed by the Deed to the DEVELOPER as if no Deed had ever been given; it being the intent of this provision, together with other provisions of Section C hereof,that the conveyance of the Said Premises to the DEVELOPER shall be made upon, and that the Deed shall contain, a condition subsequent to the effect that in the vent of any default, failure, violation, or other action o in- action by the DEVELOPER specified i subparagraphs a., b., c land d. of Paragraph 10 of Section C hereof, failure on the part of the DEVELOPER to remedy, end, or abrogate such default, failure, violation, or other action or inaction, within the period and in the manner stated in such subparagraphs, the CITY at its option may declare a termination in favor of the CITY of the title, and of all the rights and interests in and to the Said Premises conveyed by the Deed to the DEVELOPER, and that such title and all rights and interests of the DEVELOPER, and any assigns or successors in inter- est t0 and in Said Premises shall revert to 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) 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. The CITY shall have the right to institute such actions or proceedings as it may deem desirable for effectuating the pur- poses 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 declaration of the termination of all the right, title and interest Of the DEVELOPER, its successors in interest and assigns, in Said Premises and the revesting of title thereto in the CITY; provided, however, that any delay by the CITY in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under, Section C hereof shall not operate as a waiver of such rights or to deprive it of or limit such rights in any way. 13 The express, conditions, covenants, and restrictions con- tained in this Paragraph 10 shall terminate upon the CITY'S issuance of the Certificate of Completion under Paragraph 12 of Section C hereof. 11. Disposition Upon Reversion. Upon the revesting in the CITY of title to Sald Premises or any part thereof as provided i Paragraph 10 of Section C, the CITY shall in accordance with State law use its best efforts to resell Said Premises or part thereof, subject to any existing mortgage liens, as soon and in such manner as the CITY shall find feasible and consistent with the objectives of developing Said Premises for retail and/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 orsuch other improvements in their stead as shall be satisfactory to the CITY. Upon the resale of Said Premises, the proceeds thereof shall be applied: a. first, to reimburse the CITY for all costs and expenses incurred by the CITY including but not limited to salaries of personnel in connection with the recapture, management, and resale of Said Premises or part thereof (but less any Income derived by the CITY from the Said Premises o Part thereof); all taxes, assessments, water, sewer and other utility charges with respect to Said Premises or part thereof; any payments made or necessary to be made to discharge any encumbrances or liens existing on Said Premises or part thereof at the time of revesting of title thereto in the CITY or to discharge or prevent from attaching or being made any sub- sequent encumbrances or liens due to obligations, defaults, o 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 Said Premises or part thereof; and any amounts otherwise owing the CITY by the DEVELOPER and its successor or assign; and b. Seton, 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 Said Premises or part thereof and the cash actually invested by it in making any of the improvements on Said Premises or part thereof, leas (2) any gains or income withdrawn or made by it. Any balance remaining after such reimbursement shall be retained by the CITY as its property. The express conditions, covenants, and restrictions contained in this Paragraph 11 shall terminate upon the CITY'S issuance of the Certificate of Completion under Paragraph 12 of Section C hereof. 14 12. Certificate of Completion. Promptly after completion of the improvements i ordance 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 conclusive proof of the satisfaction and termination of the express conditions, covenants, and restrictions contained in Paragraphs 6, 7, Be 9, 10 and 11 of Section C hereof. If the CITY shall refuse or fail to provide such certi- fication, 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 impcovemente in accordance with the provisions of this Option Agreement and what measures will be necessary to obtain such certification. 11. Notice. Any notice under this option Agreement by either party to the oto shall be sufficiently,giv n or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and in the case of the DEVELOPER, is addressed t0 Or delivered personally t0 the DEVELOPER, b, in the case of the CITY, is addressed to 0 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. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first written above. CITY OF BANGOR By John W. Flynn Its City Manager MOULTON BAND OF MALISEET INDIANS DEVELOPMENT-COEPORATION By Its President 15 STATE OF MAINE Penobscot. as. , 1985 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 aid capacity and the free act and deed of said City of Bangor. Before me, Printed Name: Justice of the Peace Notary Public Attorney at Law STATE OF MAINE Penobscot, as. am Then personally appeared the above-named in h capacity as President of the Moulton Band of Malf see —ti nd i ane Development Corporation, and acknowledged the foregoing instrument to be h free act and deed in said capacity and the free act and deed of said Corporation. Before me, Printed Name: Justice of the Peace Notary Public Attorney at Law Description of Parcel B-11 A certain lot or parcel of land situate on Exchange Street in the City of Bangor, Maine and bounded and described as follows: Beginning at the intersection of the southerly side of York Street and the,easterly side of Exchange Street; thence southerly along the easterly side of Exchange Street three hundred two (302) feet more r less to its intersection with the northerly side of Hancock Street; thence easterly along the northerly side of Hancock Street four hundred twenty (420) feet more or less to its intersection with the westerly side of Oak Street; thence northerly along the westerly side of Oak Street three hundred (300) feet more or less to its intersection with the southerly side of York Street; thence westerly along the southerly side line of York Street four hundred twenty- five (425) feet more or less to the point of beginning. EXHIBIT •A"