No preview available
HomeMy WebLinkAbout2002-08-26 02-326 ORDERCOUNCILAMON Item No.—W U6 Date: 8-26-02 Item/Subja0: Order, Authorizing a Development Agreement with Sohn Dawson for the Purpose of ConstmRing Residential Housing on New York Street Responsible Department Council Norm Heibnann and other members of Cty staff have been working with John Dawson and his representatives to negotiate a development agreement for the Cty's New York Street property in accordance with the Council Order designating him teotathm developer through the end of August. During this process, a revised preliminary site plan has been developed. This plan is similar to the earlier "horseshoe" road plan presented by Dawson in his proposal. However, the arms of the horseshoe have been lengthened allowing for 13 single-family homes, all of which are on lobs of more than 10,000 square feet. While this plan preserves a somewhat smaller area as common open space, it appears to be a very workable compromise to Insure that our 10,000 square foot lot limit Is met. As you are well aware, smaller lots were of concent to some of the more vocal neighbors. Other major items covered by the agreement are summarized in an attachment to the order This general framework has been reviewed by myself, the City Solicitor, the City Engineer, and our Planning Officer. We all believe that it is a workable approach that meets our goal of additional quality residential development while insuring that our single-family zoning and development requirements are met. As of this writing, a final version of the development agreement is still being completed. If it is not available in time for inclusion In the agenda packet, it will either be provided to you separately in Friday's Council packet or be available for Monday. mPdF menL neva Managees Comments: This has been reviewed and discussed on a number of occasions with the Council and its various Committees. Irecgmmentl your approval. �d39 city Manager Associated Idormatlon: Order, Summary Budget Approval: Fnance Director Legal Approval: so, cher Introduced for X Passage _ First Reading Page_ of Referral 02-326 Avopedto Councilor Uldaccl August 26, 2002 CITY OF BANGOR (TITLE.) Order, Authodang a Development Agreement with John Dawson for the Purpose of Constructing Residential Housing on New York Street By the Cly Co anti/ of Me O ty ofB>ngw.. ORDERED, THAT the City Manager is hereby authorized to execute a Development Agreement with John Dawson for the purpose of mnsbucting residential housing on New York Street. Such agreement shall be substantially in the farm of the Agreement which Is attached to and made a part of this Order. I w � 3 e a b R I O FOA PIIRCIIASE AND DEVELOPMENT OF THISAGREEMENTismadethis a8 dayof M . t 2002,byandbetweenthe CITY OF BANGOR a municipal corporation located in the County of Penobscot, State of Maine (haanafta"C1TN'), and3ONDAWSONANDNANCY DAWSON (haehufla"DEVP.IAPIIIl"), ofBanInm State ofMaine. WITNESSETH: WEIEREAS, the CITY has received the DEVELOPER's proposal Pathe development ofa portion oftherealproperty New York Street in Bangor (heneina err"the PREMISES'); and WHEREAS, the = has determined that the private development of the PREMISES in accordance with the provisions of this Agreement would best save the interests ofthe citizens of the G TY; and WHEREAS, the CITY has detandned that the DEVELOPER's proposal will save the interests of the citizens of Bangor, NOW, THEREFORE, in consideration of the option fee paid to the C= by the DEVELOPER in accordance with Section A.A. below and of the mutual conditions and covenants contained herein the parries agree as follows: Section A. GRANT OF OPTION 1. GrantofOotion. The ClT went mdthe DEVELOPERaccept m"clusiveoption to purchase the PREMISES for development of no mora than 13 units of housing (hereinafter sometimes refined to as the'T EVELOPMENT"), at aminimum direct DEVEIAPER costwhich may include surveys, site work, building improvements, environmental remediation, appraisal fees, ambitectmal f«s, engineering fres, legal f«s, accounting Res, financing fees, pemtit fees andpre. openimgen mses,ofnotlessthan$270,000.00. Said DEVELOPMENfsballbeinavoondancewith the terms and conditions of this Option Agreement 2. PREMISES. The PREMISES made subject of this Option consists of property acquired by the CITY born the Estate of Earl McChesney and Guy McChesney on New York Street Bangor, Penobscot County, Maine. A&It Legal description ofsaid PREMISES shall be supplied by the CITY m accordance with the C=s tide obligations under pa agmph 8 of this Section. Page 1 of 14 02-326 02-326 3. Pmebase Price of PREMISES. The purchase price of the PREMISES shall be $105,000, said amount be be paid to the CITY in crib or by check at the time of closing on the sale of the PREMISES, less any amormaspaid by the DEVELOPER to the C=pursuantw this Option Agreernent. 4. Term and Price ofOption This Option Agreement shall remain he effort from the date hersof=fit 60 days aRerthe completion of all items in SecfionE "Conditions Preceletl to the City's Conveyance of the PREMISES to the DEVELOPER" or six (6) months from the date of meeufionofthie Agreem®[, whichever shalloccmfim[: Theeption foe for thisper edis$1,000.00, to be credited to the purchase price. 5. Extension ofCption. The City Council shall Mend this OptimAgeemmt, upon the DEVELOPER's written request stating the reasons therefor, for a period of she (6) months, if the DEVELOPER is pursuing the development in good faith The fee for an extension, which shall be Payable in full before or at the time the extension is executed, sball be $ 250.W per month, to be eredi[edwthepmchaseprice. Addifion0extensionssballbegmntedmn sametemsifreryesteA by the DEVELOPER 6. Application of Option Fees. The option fee shall be forfeited to the CITY if the DEVELOPER does not purchase the PREMISES in accordance with the terms and conditions of Us Agreemmtmdifthealyhasperformedalloftheobligafionxunderthis Ag mmt. Allopfionf are to be credited to the Eschew price. If the DEVELOPER does not purchase the PREMISES due to the City's failure to perform all of its obligations ander this Agreement, the option fees are to be refunded to the DEVELOPER 7. Exercise of Option. To exercise its right to purchase the PREMISES, the DEVELOPER shall so notify the CITY in writing at least thirty (30) days before the expiation of this OPtimAgreementand anyexwnsion hereof. Provided,thatnonoficeofDEVELOPER'smtmt to exercise the optiongranted herein sballbe a iective son toro3one the Cf1Y to deliverfi0emthe PREMISES to the DEVELOPER unless the DEVELOPER has first Rally complied with all "Con&fionsPrecedmtwtheCrlYsConveymeeofffiePREWSESwffieDEV ELOPER" a s set out in Sectiw R ofthis AgreemmS below. 8. EvidenceandCmvevan eofTid Withiv30days,ormchothertimcwtheparties may agree upon, ofthe CITY's receipt of the DEVELOPER's notice under Sation A7. above, the CITY shall convey good and marketable title an the PREMISES, free and clear of al][ liens and mcumbmuces, except easements of record or required by the CITY, to the DEVELOPER by Municipal Quitclaim Deed, subject however to the conditions, restrictions, and covenants contained in Secfions E.andC.below. Ifthe=ismabletotmdermmketable6fiea annonableefforts w do so, the= shall refund w the DEVELOPER the f paid under this Option Agreem=S if the DEVELOPER m requests, or the DEVELOPER may choose to accept the CrT s Madeampal Quitclaim Deed, in which case the DEVELOPER shall assume any risks associated with the title. Page 2 of 14 02-326 CITY shut not be responsible for preparation of a survey or tide search. =will provide my existing title work. 9. Effect of DEVELOPER'S Accmtance of Title. DEVELOPER's acceptance of the C=s Municipal Quitclaim Deed conveying title to the PREMISES, tendered in accordance with Section A.B. above, shall relieve the Cf of my and all further obligation to supply evidence offitle ortotake other steps toperfect the title delivered. lono evmt shall theC=sobligations W imda marketable title, and to use reasonable efforts to determine the source of title, extend beyond the transfer of title to the DEVELOPER. Provided, however, that City shall cooperate with DEVELOPER to cure my title defects discovered subsequent to the conveyance. Section B. CONDPDONS PRECEDENT TO THE CITYS CONVEYANCE OF THE PREMISES TO TIIE DEVELOPER Before the CITY's conveyance of the PREMISES the DEVELOPER shall complete the following: 1. SubmissionofPlans. The DEVELOPERahallmbmitpwlimiuwyandfinalplmsfor use of the PREMISES for review and approval by the CITY. DEVELOPER's final plans submitted in accordance with this paragraph shall in all respects comply with all applicable Codes and Ordinances of the City ofItangm, and in particular wrth the applicable requirements of the C=sI Development Code. Plans shall additionally confann to and be submitted in accordance with the provisions ofparagraph 2 of this Smnon, below. 2. ArarovalofPlans. NocrosnuctionwiEbeallowedwithwtilepriorsubmissimmd approval ofpreliminaryplans, final plans, and spec fications. All plans sabmined shall he generally consistent wiN the Cmcelo Plandated Auguat2, 2002, a copy ofwbich is incoryoreted byretrance and attacbed bereto n Exhibit A. All plans willbe submined m the CityManager, do the City Plainer. All plans and revisions to plans shall be reviewed by City staff atter which the City staff shall submit the plans along with their recommendations to the City Council Business and Economic Development Committee. Said plans shall be reviewed and approved by the City Council Business and Economic Development Committee. Plans shall be prepared by a registered architect and/or engineer. The following submissions shall be required: a. Prelimimry Plans -The intent ofthe Preliminary Plans shall be Woutbnethe gmeral scope ofdevelopmmt m redevelopmmt, and W convey to the CITY mffrcimtinformadonWdeterntinetheclwacteroft worktobeperformed. The Preliminary Plans shall contain: Page 3 0£ 14 02-326 (1) Draft Subdivision Plan -The draft subdivision plan shall be drawn to a scale of one (1) inch equals twenty (20) feet. (2) Buildine Plans The DEVELOPER anticipates having 3 or 4 house designs constructed on the PREIMES. The building plans shall be illustrative showing the general appearance of the possible building designs including dimensions, architectural styles and anterior appearances. Buildings shall have a minimum groes Boor area of sixteen hundred (1600) square fee[. Dimensions may be approximate and the overall floor area shall be indicated within 500 square feet. (3) Infi-asnucture - Plans showing the location of all irSmstrucmre. Wmso-umme is defined as roads, water, summoner, sewer and electricity Electrical, telephone and cable services shall be above ground on poles located within the project most right of way. Individual service to the homes shall be underground from the right of way to the subject home. b. Final Plans and Specifications -After approval of the preliminary plars, the DEVELOPER shall thin proceed with the preparation of final plains (i.e. final drags of the plans specified in Section B.2 (a.l, a2 and a.3 above) and specifications. Said hrfiaswmme plans shall show sufficient details necessary to wane proper construction and compliance with local ordvances. Timetable for Anoroval of Prelimiinrv/Fival Plans - No later then 30 days after execution of this Agreement, the DEVELOPER shall submit to the C=s City Msnager, in care of the City Plamrer, the preliminary plans for approval as specified in Section B2. above. The Business and Economic Development Committee shall review and vote on the preliminary plans within 14 days of their submission. The DEVELOPER is hereby advised that any note the DEVELOPER proposes revisions to pins previously approved r submitted, the proposed revisions should be submitted as soon as possible to the City Manager, in care of the City Plainer, for review and approval before the DEVELOPER proceeds with the preparation of final plans and specifications. No later them 14 days after approval of the preWpvary plans, the DEVELOPER stall meet with the City Council Business and Economic Development Committee and submit for its approval final plans and related drawings, specifications, and documents in the f specified is Section B.2.b. above. The City Council Business and Economic Development Committee shall review and vote on whetherto approve said plans within 30 days of submission. Page 4 of 14 02-326 Concurrently with the submission of the prelmdnarypians, the DEVELOPER will submit complete applications to the Bangor Planning Office f all approvals required by the City of Bangor (including for site plan and subdivision approvals), consistent with the provisions of Section B.5 below, Provided that any comments from the BEDC Committee are forwarded prior to review by the Bangor Planning Board. 3. Amendment to Ernst Plans. If the DEVELOPER desires to make any substantial alterations in the final plans after their approval by the City Council Business and Economic Development Committee, the DEVELOPER shall submit the proposed change in writing to the City Council Business and Economic Development Committee for its approval. 1f the final plans, as modified by the proposed change, still conform to the requirements of Section B.1. and B.2. hereof, the City Council Buscroessand Economic Development Committee shall not ummuncrablywi@hold approval of the proposed change. The City Council Business and Economic Development Committee shall either approve or disapprove the proposed change within fourteen (14) days after its submission and notify the DEVELOPER of its decision. No final plan approval by the Business and Economic Developmev[ Committee shall override any requirements, including required ameadmems,ofthe CltyofHangor Planed Board. Firmlplanamendmentarequ'redbythe Cityrf Bangor Planning Board or other permitting authorities as a condition of project permit approval [hereinafter "required amendments"] shall not be subject to review and approval bythe City Council Business and Economic Development Committee under this pamgrapb, but DEVELOPER shall Provide the Committee with copies of all required amendments for infomufion. 4. Construction Prowess Schedule and Paving Escrow. Concurenrlywiththe submission of the final plans, the DEVELOPER shall submit an anticipated construction progress schedule m the City Council Business and Economic Development Committee in form consistem with the schedule attached as Exhibit B. The progress schedule sball provide dates for DEVELOPER to submit applications to and acture approvals finm the Rodger planning Board, for the commencement and completion of construction and installation of all vJmstmcture, and for the commencement and substantial completion of construction of housing wi@in the development. Infrastructure is defined as roads, water, sewer and electricity The progress schedule shall also provide dates for the commencement of construction of homes and for substantial completion often (10) of the duraum (13) homes within dus development. Construction may begin on foundations for housing wits prior to completion of the infinsmrco e so long as DEVELOPER makes arrangements with the approval of the CITY's engineer to insure that the ground or road subgmde will not be substantially affected by the presence of the construction equipment. All paving of me road shall be performed "e City. Paving shall he completed within one year of completion of construction of the fust home, so long as paving material is available. DEVELOPER shall be responsible for all work to road necessary to prepare the same for paving, as reasonably demrurmed by the City's Eugineer. Provided fimhu 'bat unless DEVELOPER elects otherwise, no curbing along the paved road is required. Page 5 of 14 Upon trusf of the deed, DEVELOPER shall establish an interest bearing escrow account in the amowt of $10,000 to pay for paving of the binder worse for the road by the City. Any amoant womming in the account after the binds course paving shall be refunded to the DEVELOPER Once the binder course is applied, the DEVELOPER shall establish an interest bearing escrow account in the amomrc of $6,000 at pay for the paving of the fmat pavement by the City. the City shall perform all paving requested by DEVELOPER within sixty days of receiving notice from DEVELOPER so long as paving Product is available during that time frame. Any amount remaining in theaccount after final pavmgshallbe refunded to the DEVELOPER. 5. Permit Rwuirement. DEVELOPER shall obtain, and shall provide satisfactory evidence thereof to the CIW, every local, state and federal permit, license, and govermrental approval necessary for comnaem®arc and completion ofthe development d=mbed in.SstionAl. above The parties specifically contemplate that the DEVELOPER shall be authorized to include, a addition to the exi sting home (which may be either renovated or wholly replaced) up to 2 homes on the DEVELOPER's adjacent 1.05 +/- acre parcel as pan of any permit appliamou(s) ands this Section. Except he accordance with Section A.S. above, no term or deadline specified in this Agreement shall be extended by reason of DEVELOPERs failure to obtain, or of an approving authority to issue, any required permit in a timely manner except upon timely request for an extaisionmadeptiortoexpiration ofsuchtsm ordeadline and upongood cause shown Provided, lumber, that CITY agrees to act in good faith and to give due consideration to a request by DEVELOPER for such an extension where the failure to obtain such approval or permit is due to circumstances beyond the wvtrol of DEVELOPER. 6. Evidence of Fmancinn. The DEVELOPER shall provide the CITY with written, legally binding commimrenra, in a form satisfactory to the CTTY's City Solicitor, from acceptable lending institutions, governmental agencies, or other sources fnboth interim construction financing and long-term financing of the DEVELOPER's infrastructure cost as detailed intheplarisreferted to and approved under Sections B.2 a. and b. above. The DEVELOPER or DEVELOPER's general contractor shall post with said financing entity both aperfonaance bond and a labor and materials payment bond issued by a corporate surety licensed mdo business in the State of Maine, or other security acceptable to the UTY's City Solicitor, each in a penal sum equal to the total estimated cost of construction and installation of the infastrucnue. The DEVELOPER or the DEVELOPER's general contractor shall submit to the CIIY a copy of my such bonds and written evidence of payment of the required premiums. The hands or other security most remain m effect and wmpletionoftheconstructionmd'msvllationoftheinGavtrucnue. Theboadmaybereleasedwhm the only item remaining to be performed on the infrastructure is paving which shallbe performed by the City. 7. Construction Contract The DEVELOPMR OlpmvdethaC=TY acertificate executed by the DEVELOPER and its general contractor, certifying the existence of a contract or contracts for corumuction and inundation of the infias nature. Page 6 of 14 02-326 8. Easements. The DEVELOPER&ball grant to the City (a) easements for all utilities an the Remises (and the City shall release an easement previously ganted by the DEV ELOPER, so as m relocate the easement from the east side to the west side of the Silver Road parcel hereinafter described); (b) an easement for pedestrian access across property owned by the DEVELOPER on Silver Road in Bangor, Mame,said property more particularly described in a dad recorded in the Penobscot Registry ofDeeds at Volume 7581, Page 347; and (c) spoons overflight easement. Said easements shall be in a form satisfactory m the City Solicitor. 9. Miscellmreous. a. The DEVELOPER sball create and maintain a butler strip ofplantingsan the PREMISES along the boundarybetween the property now owned by Charles Eames except that forcing shall not be required. Said plantings dull be not less that required by Buffer C 4 of the CITY's Lund Development Code. b. The DEVELOPER shall form a legal entity for the residents of the mots to be constructed on the PREMISES. If formed, a copy of the operating document for said legal entity is to be supplied as part of the fiml plan approval process. Unless the obligations hereinafter set forth m Section9 (b) are addressed by dead convenaats in the deeds to the appropriate individual lot/ unit ovmers, the legal entity shall own and maintain the open space along with other common areas and stall provide far maintenance of the above described vegetative buff strip. c. The DEVELOPER shall act permit shared driveways for the units In be copsWcted an the PREMISES. Before the ='a conveyance of the PREMISES, the C1TY shall Provide the fallowing 10. The CITY sbalL al least fifteen (15) days prior to the dad transfer, have a Phase I Environmental Site Assessment performed and provide the results thereof to the DEVELOPER. If the CITY fails m have said assessment performed in the above time frame, the CILY shall reimburse the DEVELOPER for the cost of having such assessment performed. 11. The CITY shall release the wilityeasement previously granted by the DEVELOPER on the east side of the Developer's Silver Road property, in exchange for DEVEIOPER Stenting a Wilily easement on the west side of such property. Section C. CONDIITONS SUBSEQUENT TO TBE CYCV'S CONVEYAbICE OF PREMISES TO THE DEVELOPER 1. The City's convevance of the Premises shall be subiect at the foBowine candirman subs�o- ew - Page 7 of 14 a Covenants. It is intended and agreed that the express conditions, covenants and restriction provided in Section C.1 heeofshall be binding, to the fullest extent permitted by law and equity, for the benefit and in favor of, and enforceable by, the CITY and any successor in usterest to the PREMISES or any part thereof for the time periods specifically prescribed herein for each. b. Anti -discrimination. The DEVELOPER agrees ferthemselves, their Mips a ndsuccessorsiniMa ttothe PREMISES,ormypanthereof,andthe Deedsballcontainexpress covenants on the pan of the DEVELOPER for themselves, their summon and assigns, that the DEVELOPER, and their successors and assigns, shall not discriminate upon the basis ofrace, color, creed, national origin, sex, physical or mental handicap or on any other basis prohibited by law now or in the fume, in the sale, lease, or rental, or use or occupancy of the PREMISES or my improvements thereon. This covenant shall run in perpetuity and ahall run with the hand. This covenant against discrimination shall be binding for the benefit and in favor of, and enforceable by the CITY, the State of Maine, and the United States of America against the entity and/or individual that has an interest in the PREMISES sed is found to have discriminated. Such covenant may be statedeither in the DE V ELOPER's individual dells of conveyance to DoUUntt owners or in a set of Master Covenants. C. W=a Awaroval of Transfer Poor to Completion The DEVELOPER recognizes that the qualifications and identity of the DEVELOPER, and its principals or any successors inintme , are of Particular concent to 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 ofthe DEVELOPER for the faithful performance of all malmodangs and covenants to be Performed by the DEVELOPER_ The DEVELOPER also agrees that the Premises arebeing ammed for the purposes of development and not for speculatimin land; accordingly, DEVEIDPERagreesto use theirbest efforts to pursue the Development of the Premises all the necessary permits, and not sell ordivest their interest in the Premises prior to commencement ofrrmstrumion a finframacnue for the Development, except for the reasons and within the parameters of the two succeeding paragraphs of this sation. The DEVELOPER represents and agrees for itself its successors and Magna, that except only by way of serenity for the purpose of obtaining financing necessary to enable the DEVELOPER or my approved summer in interest to perform the obligations order Semen E. hermf, the DEVELOPER has hot made or created and, mtil the CM issues the Certificate of Completiontuder Section C.3. below, will not make orcreate, or suffer to bentade or created, any total or partial sale, assignment, conveyance, lease, trust power, or trmsfer in any other mode or John, of or with respect to, this Option Agreement, the PREMISES, or my part thereof, ortreason therein, nor shall my cmtraot or agreement to do any of the same be entered into without the CD Ys prior written approval, which said approval will rot be unreasonably withheld if the following conditions are met: Page 8 of 14 02-326 1. Any proposed transferee Shall have the qualifications and financial responsibility, to be necessary and adequate to fulfill the obligations undertaken in this Agreement; and ii. Any proposed transferee, by instrument in writing safisfactory to the C= and in a form recordable in the Penobscot Registry of Deals, shall for itself and its successors and assigns, and expressly for the bmefit of the CITY, have expressly assumed all ofthe obligations ofthe DEVELOPER under this Option Agreement and agrees to be subject to all of the conditions and restrictions to which the DEVELOPER is subject under Smtion C. hereof. The foregoing provisions of this Section C.l.c notwithstanding, the DEVELOPER may assign this Option Agreement and all rights and duties herein, subject to the ferns aM conditions hereof, to a development entity hereafter organized and qualified by DEVELOPER trader the laws of the Some of Maine; provided, however, that DEVELOPER shall retain an active involvement in the entity and the entity stall assume, in wrifing satisfactory to me CITY, the obligation to complete, in the mann" provided for in this Agreement, the contemplated improvements on the PREMISES. Furthermore, any such new development many most submit evidence to the City Solicitor satisfactory to establish Nat it has the tcdmical and financial capacity necessary to perform the DEVELOPER's obligations as set forth m the Agreement. As each building unit is transferred to a bona fide third party purchaser the revenant in this Section C.l.c. shall terminate as to that unit. All covenants contained in this Section C.I.C. shall terminate upon the CrN's issuance of the Certificate of Completion under Section O3 below. d. Mortgages Prior to Completion of improvements n. Prior to the completion ofthe improvements as candedby the CffY, neither the DEVELOPER nor any successor in interest to the PREMISES many part thereof shall engage in my financiog or my other transaction creating any mortgage or my other emumbrance or lien upon the PREMISES, whether by express agreement or opemtim of law, or permit my encumbrance or Jim to be made on or attached W the PREMISES, except for the purpose of obtaining funds necessary for making improvements provided herein plus the purchase price of the PREMISES paid by the DEVELOPER m the CITY. u. The bolder of my mortgage authorized by this Option Agreement, including my such holder who obtains title to the PREMISES or my part thereof as a result of foreclosure proceedings car action in Jim thereof shall not be obligated by the provisions of Nis option Agreement to construct orcomplete the improv®ants or to guamvtm Page 9 of 14 02-326 uchconstmctionorcornpletion. Nocovemrrtoranyotherprovision many deed shall be construed so to obligate any such holder. As each building reit is transferred to abona fidelhird partypurchaser the covermt in this Section C.Ld shall terminate as to that unit All covenants eoamined in this Section C.1.d. shall terminate upon the C='s issuance of the Certificate of Completion under Section C3. below. e. Nofice of Default to Mortgagee. Whenever the CITY shall deliver or make any notice or demand to the DEVELOPER with respect an my breach or default by the DEVELOPER in its obligations or covenants under this Option Ageement, the= shall m the same time deliver to each holder of e Mofmymongageacopyofsuchnoticeordemmd. Eachsuch holden shall, inwfm w the rigbts of the CITY are wm=ed, have the right at its option to cure such breach or default and to add the cost Nereoftothemongage debt audthelienofitsmongage. Howcota f the breach or default is with respect to constructim of the improvements such holder may not undertake or continue the construction or completion of the improvements beyond the extent necessary to conserve or protect improvementsor construction already made without Past having expressly assumed in writing the Obligations ro the CITY to complete, in the roamer provided is this Option Agreement, the improvements on the PREMISES re the pan thereof to which the lien or title of such holder relates, and having autumnal evidence satisfactory to the CITY that it has the qualificatiomsandfinancial ons litynmessarylepefomsuch obligation- Any such bolder who shall properly complete the improvements relating to the PREMISES or applicable pet thereof shall be entitled, upon written request made re the =, t0 a certification by the CITY to such effect ina answer provided in Section C.3. ofthis Option Agreemml. Sucheertification shall, ifso requestedbysuchholder,providethatanyremedyofthe Cf swith respect m revesting of fitle to the PREMISES because of failure ofthe DEVELOPER to cure my default with respect to the construction of the improvenmta 01) other pens of parcels of the PREMISES, or because of srry, other default in or breach of this Option Agreement by the DEVELOPER, shall not apply to the pan or panel of the PREMISES to which such certification relates. Page 10 of 14 02-326 ii. Mthe event of the DEVELOPERfs default in its obligations under my mortgage or other instrument creating an encumbrance upon the PREMISES or part thereof prior to completion of improvements, the C11Y may at its option cure such default or breach. In such case the CD'Y shall be entilled, in addition to and without limitation upon my other remerly to which it shall be entided 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 place a Hear upon the PREMISES or part thereof to which the mortgage, encumbmvce, or lien relates, to secure such reimbursement. iii. For the purposes of this and other Pamgmphs of this Option Agreauenq the term "holder" in reference to a mortgage shall be deemed to include any insurer or guarantor of any obligation or condition secured by such mortgage. As each bonding unit is transferred to a bone fide fund party purchaser the covenant in this Sectim C.6 shall terminate as to that unit All coveruvta contained is this Section C.l.e shall terminate uponthe CITY's issuance ofthe Certificate ofCompletion under Section C.3 below f In consideration of the numerous undertakings by the DEVELOPER, at the time of the deed conveyance, the CITY shall covenant for itself and every successor in interest to the real property now known as the City of Bangor Municipal Golf Course (the Golf Coarse), that a strip which abuts the entire length of the west bound of the Premises as shown on the attached Exldbit C and a fifty lout strip of City owned property moving along the south bound ofwhat is now Imown as New York Street shall be held and maintained as open space or az a golf come, fm a period of 30 years, udess the DEVELOPER, thein successors and assigns, grant permission for additional use. The C= shall also impose a covenant in the deed of conveyance that precludes the location or placement of my structure, except utilities and/or stormwater mmaganent structures, in the wetlands area marked as "open space to be preserved" on the Concept Plan attached hereto as Exhibit A. The above restrictions shall be granted by the CTT Y to the DEV ELOPER at the rime of the deed conveyance of the PR SES and shall tan with the land of the PREMISES and the Golf Coarse property indelicately. g. In the subsequent conveyances to individual lot/ unit owners, the DE OPER shall include certain covenmts. Such covens m shall include covenew s providing that (1) the owners of Loon/ Units 10, 11, 12 and 13 as depicted on the Plan attached hereto as ExhibitA shaEnot umeasonablycut ordismrb thevegetativebufferbetweensaid Lo+a/Unitsand the existing residences on Silver Pont; and (2) the owners the owners of Lots/ Units 1, 3, 4 and 5 az depicted on the Plan attached hereto az Exhibit A shall not unreasonably cm or dumb the vegetative buffer between said Lom/ Units and the existing Charles Eames residence on Silver Road , as Page 11 of 14 02-326 provided for in this Agreement and depicted on Exhibit A. Provided, however, Gut selective cutting within said buffer(s) shall be allowed in order to remove storm -damaged, unsafe, diseased, and dead trees and to improve or maintain the overall appearance ofthe buffer. - 2. Street Acceptance and Easements Upon completion of the infrastructure to City specifications, the CITY shall accept the development road as a public way and shall accept maintenance and repair obligations for the remaining infrastructure. The DEVELOPERshall grant to the CITY easements for all utilities, except electrical power, on the PREFHSES, an easement for pedestrian access and a utility easement across the westerly boundary of property owned by the DEVELOPER on Silver Road, Bangor, Maine, and a noise overflight easement The CITY shall release to the DEVELOPER its utility easement over the easterly boundary of said Silver Road Property. Said easements shall be in a form satisfactory to the parries' legal represrnmtives. 3. Certificate of Completion. Promptly after completion of the improvements in accordance with theprovisions ofUs Option Agreement, the CITYwill fumishthe DEVELOPER with an appropriate instrument so certifying which instrument shall not be a treasonablywithheld. Such certification shall be in such form as will enable it to be recorded in the Penobscot County RegistryofDeeds. neC=sims cofthe CertificateofCompletionwillwmtiNteconclusive proof of the satisfaction and termination of the express conditions, covenants, and restrictions c to edin Seefiow C.Le.,C.l.d,and C.l.e above. maddition,promptlyaRercompletionafeacb unit the CITY will famish the DEVELOPER with a certificate of completion as to that unit. If the CDN shall refuse or fail to provide such certifications, the C1 shaLL, within thirty(30) days after written request bythe DEVELOPER, provide me DEVELOPERwith awritten statement indicating in adequate detail in what respxm the DEVELOPER has failed to complete the improvements in accordance with me provisions of dris Option Agreement and what measures will be necessary to obtain such certification. Section D. GENERAL PROVISI 1. SevembiliN.Ifanyprovision of this Option Agreement is determined to be invalid or unenforceable under law, it shall not affect the validity or enfomement ofthe remaining obligations orportionshereof. 2. Noce. Any notice under this Option Agroureta by eitherparty to the other than be sufficiently given or delivered if it is dispatched by registered or ratified mail, postage prepaid, return receipt requested, or delivered personally, and Q. in the case ofthe DEVELOPER, is addressed to ordehvered personallyto the DEVELOPER, 205 Webster Avenue; Bangm, Maine 04401. b. in me case ofthe City, is addressed to or delivered Personally to the City, c/o City Manager, City Hall, 73 Harlow Street, Bangor, ME 04401. Page 12 of 14 02-326 or to such other persons or addresses as the parties may designate in writing to the other 3. Default In the event of default by either party under ibis Agreement, Meas otherwise provided herein, the parties agree that due to the unique nature ofthis Agreement the nm - defaulting party shall be entitled to enforce the agreement by bringing either an action for specific performance or a suit fordamages. In the event that the City elects tome for damages, the City's damages claim shall be funned to the following elements: (a) the cost of reissuing the RFP and seeking anew project developer; and (b) the estimated lost property tax revenues occassioned by the delay in having to reissue the RFP, secure anew project developer, and complete the development of the Prentises, but not exceeding 2 years of estimated lost property taxes. 4. Memorandum of Oofiom Upon request of either, the parties agree to prepare and execute a Memorandum of Option in recordable form, which Memorandum may, be recorded by either party in the Penobscot County Registry of Deeds. IN WITNESS WHEREOF, the parties hereto have act their hands the day and year first written above. ''��//CM OP BANGOR d3y)gam IF Edward A. Barren Its C= Manager Wi �awaoa 2 Qusv-- W Navcy Da n StateafMaine ) Penobscot, as. ) i 4, 2002 Page 13 0£ 14 Then personally appeared the above-named Edward A Batrev, 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 arch capacity and the free act and deed of the City of Bangor. Before me, ,Printed Name: Notary PubNc/Anomey at law My commission expires: NON1lAN S. NN11N1ANN, NI NOTARY PYROC, NYIE NY CONM6810N E%%RES ANUARY 11, 10114 State of Maine ) Penobscot, as. )a 2002 Then personally appeared the above-named Jon Dawson and Nancy Dawson and acknowledged the foregoing instmment to be their free act and deed. Before me, PrintedN Notary PuMiGAttemcyarlaRr My conwission expires: NaryA, Nutley Notary public• Name Ny f om mbulon expires January 5, 2004 Page 14 of 14 02-326 PROGRESSSCHEDULE Pmrdtung Avpmval: by October 15, 2002 * Deed Transfer: by Oclober22,2002* Site Work conamencenvent by November 1, 2002* Preliminary Infrastructure (sewer and water mains sNbbed to ROW eche and stomrWaler mains monocled to detention basin)' If Deed Transfer by October 22, 2002, then 15 weeks atter October 22,2002; if after October 30, 2002, but prior to May, 1, 2003, tam 15 weeks (105 days) after May 1, 2003* ConstructionofFoundations for Housing Units: may commmceprior to road pavement, once backfill is placed over the utilities and gravel subbase for project road is in. Where soils are adequate witbin the interior of individual lots, foundation work on and ova Ore subgmde shall be pemritted with proper monitoring by Developer's engineer (and concurrence of City Engineering); where geotextile and subbase is to be laid because soils are inadequate, the Developer's contraIXor sball place adequate gmtextile and/or gravel sub -base before commencement of foundation construction. Substantial Completion of at least 10 Housing Urdts: By April 15, 2004* Finished Oravel Subarade for Street and Croons Curbing (in concrete): 30 days after complefion of Housing UruU* Binder Pavenrent on Street by City 90 days after completion of Housing Units* Surface Pavement on Street by City: 120 days after completion of Housing Unifs* * subject to extension for good cause (including, but not limited to, those related W expiration of my and all appeal periods from govemmental decisions and all extensions that are mutually satisfactory to the City mad Developer) 1I EkHl3\T C - Fm Ui a .wrnduk �.{ � II UM ©; M. a V6GET/�THE BUFF R r � �T B M4ESEMEL7 1r WE1i6M6' �e s 02-326 wE D I i NEW YORK STREET SITE PLAN EAN�R. WINE 02-326 wE D I I I ILJI c 0 1 i d, y=. _,I V R EOUFFE�R F PENS ET \ ,>xN I 5F LEGE re�mm UNIC MT�.xsv xoms,ui. 4171' O C RSE 1 — iuuw�owaeu� x 1 O vEGOtFFEvreEem. 04 I .. 05�sr \ F R RMOF➢M1AWnbI 1 �s mIZW=F1 1�m =sms' v z"ow i"�1 NEW YORK STREET SITE PLAN CONC 2. = PVClJST2�2W2 flNi00G,M1WNE i�- 02-326 SUMMARY OF PROPOSED DEVELOPMENT AGREEMENT- NEW YORK STREET 1. The City will grant Dawson an option for six months (with possible extensions) to purchase the land to build 13 single-family houses. Subdivision development costs will be at least $270,000, not including the price of the land. The option fee will be $1,000 per month, applicable to the purchase price. During any extension, an additional $250 per month will be paid. 2. Conditions Developer must meet prior to exercising the purchase option include: a. Approval by the Business and Economic Development Committee of both preliminary and final plans, including plans for the subdivision; 3 or 4 building plans for houses; an infrastructure plan; and bicycle and pedestrian easements. b. Submission of plans W the Planning Board. c. An anticipated construction schedule. d. Evidence of Financing e. A construction contact for infrastructure items. f. All required permits in place. g. All necessary easements for utilities, access, noise over Flight etc. in place. 3. The City will allow developer to submit plans to the Planning Board for up to two additional homes on Dawson's adjacent 1.05aae parcel and to include the existing Dawson owned struchure on this parcel (or a replacement for it) within the overall subdivision plan. 4. All infrastructure except road paving must be substantially complete prior to any home construction. 5. language to be included in any deeds of properties in the subdivision abutting the Eames property on New York and existing properties on Silver protecting required buffer areas. 6. No shared driveways. 7. City will provide a phase I environmental assessment on the property. B. We will require a deed covenant precluding any structures in the wetland area at the rear of the property. 9. City will agree to retain Golf Course property in close proximity to the development as a gaff course or open space for a thirty-year period. 10.Once 10 of the 13 homes have been built, City will issue a certificate of completion. II.CIty will provide final street paving, at developers cost, within one year after construction of the first home in the development Developer will post bond to cover this cost.