Exhibit 10.141
DEVELOPMENT AGREEMENT
Between
CAREMATRIX OF AMBER LIGHTS, INC./NETWEST
DEVELOPMENT CORPORATION
And
AMBER LIGHTS ASSOCIATES
GENERAL PARTNERSHIP
DEVELOPMENT AGREEMENT
This Development Agreement is by and between CareMatrix of Amber Lights, Inc.
("CareMatrix"), a Delaware corporation, with an office at 000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, and Netwest Development Corporation ("Netwest"),
an Arizona Corporation, with an office at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxx, 00000 (collectively the "Developer"), and Amber Lights
Associates General Partnership ("Amber Lights"), an Arizona general partnership,
with an office at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Owner")
and is entered into for the purpose of reducing to a formal writing all of the
parties understandings with respect to the construction of a proposed assisted/
independent living project to be comprised of 120 units ( the "Project") to be
located in Tucson, Arizona, described below (the "Property").
In consideration of the undertakings of each of the parties to the other:
IT IS AGREED:
ARTICLE I
Representations
The parties make each of the following material representations:
Section 1.1 -- Title to Property. The Owner shall have good, record and
marketable title in fee simple to the Property consisting of approximately 5.5
acres of land as more fully described in Exhibit "A". Exhibit "A" and each of
the other Exhibits referred to in this Agreement shall be incorporated into this
Agreement by such reference as if fully set forth in this Agreement. The
Property shall be free and clear of any and all encumbrances which would, in the
Developer's sole discretion, impair the construction or operation of the Project
except as set forth on Exhibit "B". and free of any hazardous wastes or
materials except as set forth on Exhibit "C".
Section 1.2 -- Encumbrances.
(a) Owner and Developer acknowledge that the Property will be subject to
the easements, assessments, conditions, contracts, rights, claims,
encroachments, restrictions and other encumbrances as set forth on Exhibit
"B" (the "Existing Encumbrances"), to physical conditions disclosed by a
boundary survey to be prepared by XxXxxxxx XxxXxxxxx Lodge & Associates,
Inc. for the Property, and
will be subject to those easements, conditions, contracts, rights,
licenses, encroachments, restrictions and other encumbrances resulting from
Developer securing regulatory, development and construction approvals for
the Project and attendant site improvements. Owner and Developer each
represents to the other that it has reviewed or shall review the boundary
survey and the topographical survey of the Property and has made a physical
inspection of the Property and is satisfied as to the site characteristics
and attributes in all material respects.
(b) Concurrently with the execution of this Agreement, the Owner shall
provide the Developer with copies of all engineering, architectural and any
other plans, studies and surveys, title reports, environmental assessments,
appraisals and other information regarding the Property or the Project
which are in the Owner's possession, custody or control.
(c) The Owner represents that to the best of its knowledge the Property has
only the apparent site and off-site conditions, if any, as set forth on
Exhibit "D" and including the Development Agreement to be executed with
Pima County.
(d) Commencing on the date Developer elects to commence construction in
accordance with this Agreement, Owner shall provide Developer with full
possession and complete control of the Property for purposes of performing
Developer's obligations hereunder.
Section 1.3 -- Permits and Approvals
(a) Developer represents that it shall use its best efforts to obtain,
prior to the date of the Closing (as defined in Article III hereof), all
state, federal, county and municipal land use approvals and permits,
licenses, easements, and utility agreements which are necessary for the
development, construction and opening of the Project on the Property as set
forth on Exhibit "E" (the "Developer's Approvals"). Developer covenants to
diligently use its best efforts to obtain all of the Approvals in an
expeditious manner. In the event Developer is unable to obtain the
Approvals, Developer shall have no liability whatsoever to Owner, or any
other party and at Owner's or Developer's option, this Agreement shall be
terminated without recourse to either party hereto at law or in equity.
(b) Owner represents that it shall use its best efforts to obtain, prior to
the date of the Closing (as defined in Article III hereof), all state,
federal, county and municipal land use approvals and permits, licenses,
easements, and utility agreements which are necessary for the development,
construction and operation of the Project on the Property as set forth on
Exhibit "F" ( the "Owner's Approvals"). Owner covenants to diligently use
its best efforts to obtain all of the Approvals in an expeditious manner.
In the event Owner is unable to obtain the Approvals, Owner shall have no
liability whatsoever to Developer, or any other
party and at Owner's or Developer's option, this Agreement shall be
terminated without recourse to either party hereto at law or in equity.
(c) For the sole purpose of permitting Developer to construct the Project,
Owner grants to Developer, to the extent required by Developer in order
that the purpose of this Agreement be effectuated, the rights under the
Approvals and any other grants of rights, permits, approvals, or licenses,
which may be necessary to complete the performance of Developer's
obligations hereunder; provided, however that no transfer or assignment of
any of the foregoing shall occur which is prohibited by applicable law or
the respective terms hereof.
Section 1.4 -- Documentation. Owner shall provide or obtain construction and
permanent financing for the Property, the Project, the Personal Property (as
defined herein) and related development costs (collectively, the "Project Loan")
which shall be sufficient, together with Owner's equity contributions, if
necessary (which shall in no event exceed ten percent (10%) of the Contract
Price), to pay the full amount of the Contract Price (as defined herein). Owner
covenants that it will provide fully and in a timely fashion all reasonable
documentation required by Owner's lender in connection with the Project Loan.
Such documentation shall include, but is not limited to, all zoning and plan
approvals; all utility letters indicating positive availability of service;
inventory of concessions made to and agreements with any or all municipal
bodies; site plans; title policies, and all other regulatory body approvals.
Owner also covenants that it will, in a timely manner, provide whatever
financial or other information Owner's lender might reasonably require in
connection with Developer's applications for financing for the construction of
the Project and as required by such lender in connection with the Project Loan.
Owner will use its best efforts to pursue its application for construction and
permanent financing for the Project.
Section 1.5 -- Other Agreements. Owner and Developer each represents to the
other that neither entering into this Agreement nor performing their respective
obligations hereunder will violate any other agreements or documents by which
either may be bound.
Section 1.6 -- Utility Services. Owner represents that, to the best of its
knowledge, all utility services required to construct and operate the Project
(including public water, sewer and electricity) are currently available to the
Property in the capacities required to operate the Project. No work need be
performed by or on behalf of Developer to make such utilities available to the
Property for the construction or operation of the Project, except for the
matters, if any, set forth on Exhibit "D". Copies of letters from the providers
of such utility services confirming such availability are annexed hereto as
Exhibit "G".
Section 1.7 -- Good Standing of Developer. Developer represents that it is duly
organized, validly existing and in good standing under the laws of the state of
its incorporation. Developer represents that it is empowered and authorized to
execute, deliver and perform its obligations under this Agreement, and, upon
such execution and
delivery and subject to the conditions subsequent set forth in Section 5.1, this
Agreement shall be the valid, binding and legal obligation of the Developer,
enforceable in accordance with its terms and, duly authorized by a vote of its
Board of Directors in compliance with its certificate of incorporation and
bylaws and all applicable laws of the state of its incorporation.
Section 1.8 -- Good Standing of Owner. Owner represents that it is duly
organized and validly existing under the laws of the State of Arizona. Owner
represents that it is empowered and authorized to execute, deliver and perform
its obligations under this Agreement, and upon such execution and delivery and
subject to Section 5.1, this Agreement shall be the valid, binding and legal
obligation of the Owner, enforceable in accordance with its terms and duly
authorized by a vote of its General Partner in compliance with its General
Partnership Agreement and all applicable laws of the State of Arizona.
ARTICLE II
Construction of the Project
Section 2.1 -- Control of Construction. Subject to the express provisions
contained herein, it is the intention of this Agreement that Developer shall
have sole, complete and absolute authority and discretion to decide any and all
issues pertaining to the construction of the Project, including, without
limitation, the expenditure of funds, the incurring of costs and all of the
other matters referred to herein; so long as the same are in compliance with
Approvals, the Final Plans (as defined below) and all applicable laws. It is
understood by both parties that on those projects which Netwest brings to
CareMatrix, of which Amber Lights is such a project, Netwest will be the lead
developer, and on those projects which CareMatrix brings to Netwest, CareMatrix
will be lead developer. Both parties will communicate, cooperate and consult
with each other throughout the development process. CareMatrix and Netwest agree
to use their best efforts to resolve any disputes with respect to decisions as
Developer hereunder. Notwithstanding the foregoing, in the event that CareMatrix
and Netwest are unable to agree on any matter hereunder after using such best
efforts, CareMatrix shall have final authority to decide any and all isues
hereunder.
Section 2.2 -- Architectural and Engineering Services. The parties acknowledge
that Bruker Xxxxx Architects and their consulting engineers (the "Architect and
Engineers") have or will be retained by Developer. Developer will be responsible
for the payment of the architectural fees due to the Architect, pursuant to the
contract with respect to the Project dated February 26, 1996 (said contracts
herein collectively, the "Architectural Contract"). Owner represents and
warrants to Developer that a true, accurate and complete copy of the
Architectural Contract is attached hereto as Exhibit "I". The Developer shall
not be responsible to Owner, or any other party for any errors, omissions,
breaches or failures thereof, or any damages resulting from the acts or
omissions of the Architects. At Developer's option, Owner shall assign to
Developer all of its right, title and interest in the Architectural Contract and
any and all architectural, engineering and
other contracts with respect to the Project free of any claims other than
outstanding amounts owed under the Architectural Contract. In no event shall
Developer be obligated to assume any of said contracts.
Section 2.3 -- Other Professionals and General Assumed Obligations. Owner
represents that it has not engaged any architects or any engineers, lawyers,
consultants, accountants, or other professionals with respect to the Project
other than those in the Architectural Contract which Owner shall be obligated to
pay. Developer neither assumes nor shall be obliged for any debts, liabilities
or obligations of Owner or related to the Property or the Project other than
payments due to the Architect under the Architectural Contract.
Section 2.4 -- Plans and Specifications.
(a) The Architect and Engineers retained by Developer shall, under the
direction of Developer and after consultation with Owner, prepare basic
design plans (the "Basic Plans") attached hereto as Exhibit "H". As a part
of this process, Developer may engage engineers, including the site
engineers, to perform test borings and other soil testing at the Property
for purposes of properly locating the Property on the Project. Developer,
the Architects and the engineers shall consult with Owner during the
process of preparing the Basic Plans. Developer, Architect and engineers
shall have access to the Project for all such tests and surveys.
(b) Within two (2) weeks after the date of the Architect's and the
engineer's completion of the Basic Plans and delivery to Owner, the
Developer, the Architect and the engineers shall meet to review and approve
the Basic Plans. The parties shall initial the Basic Plans to indicate
their approval of such Basic Plans.
(c) Upon the approval by the parties of the Basic Plans, Developer shall
direct the Architect and the engineers to prepare final plans,
specifications and a site plan (collectively the "Final Plans") based upon
the Basic Plans. Within two (2) weeks after the completion of the Final
Plans and their delivery to Owner, the parties will meet to review and
approve the same, and make any necessary revisions. Owner agrees that it
will not unreasonably withhold its approval of the Final Plans if they
conform in all material respects to the Basic Plans. The parties agree to
use their best efforts to reach a prompt and reasonable conclusion
concerning the acceptability of the Final Plans (and Personal Property, see
Section 2.6). The parties shall initial the Final Plans (attached herein as
Exhibit H) as an indication of their approval of the same.
Section 2.5 -- Construction. Developer shall construct the Project in a good and
workmanlike manner and in accordance with the Final Plans, Approvals, and all
applicable laws subject to field changes and minor design changes. The Project
is to be licensed for the unit complement described above and shall be
constructed in accordance with the requirements in effect on the date of this
Agreement as set forth by all federal, state and
local governmental agencies having jurisdiction of the Project, including Life
Safety Code requirements imposed by the Federal Department of Health and Human
Services.
Section 2.6 -- Personal Property.
(a) Developer will furnish the specific items of personal property
contained in Exhibit "J" (the "Major Moveables") required for the Project
within the allowance (defined below). The allowance for the Major Moveables
is FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) (the "Major Moveables
Allowance"), which Major Moveables shall be included in the Contract Price
(as defined below).
(b) Developer will furnish the specific items of personal property
contained in Exhibit "K"( the "Minor Moveables") required for the Project
within the allowance (defined below). The allowance for the Minor Moveables
is TWENTY-NINE THOUSAND DOLLARS ($29,000.00) the "Minor Moveables
Allowance"), which Minor Moveables Allowance shall be included in the
Contract Price (as defined below).
(c) In the event that the cost of the Personal Property furnished pursuant
to subsection 2.6 (a) and (b) above shall exceed the Major Moveables and/or
the Minor Moveables Allowance, any such excess shall be an increase to the
Contract Price.
(d) In order to reduce the risk that the Major Moveables and Minor
Moveables will be delivered prior to the Closing contemplated herein, Owner
covenants that it shall approve such Major Moveables and Minor Moveables as
soon as practicable but not later than approximately six (6) months prior
to the estimated date of Physical Completion (defined below).
(e) Major Moveables and Minor Moveables do not include Kitchen and Laundry
Equipment.
Section 2.7 -- Changes. Owner agrees that Developer shall also have the right to
make changes in the Final Plans and in the Personal Property if required by any
federal, state, or local governmental authority having jurisdiction over the
Project or if required due to the unavailability of any construction materials
or Personal Property. Owner shall be notified of any such changes or
substitutions in the Personal Property, however, Developer shall have final
authority to make all decisions with respect to such changes; provided that such
changes result in construction, space, design, personal property, equipment and
interior and exterior design comparable in overall design and quality to that
shown on the Final Plans. Any change that results in the loss or adjustment of
square footage in the Project will require approval by Owner.
Section 2.8 -- Commencement of Construction. Construction of the Project will
start on or prior to the date which is thirty (30) days after the satisfaction
of the last of the
conditions set forth in Section 5.1 to be satisfied, or as soon thereafter as
weather and ground conditions permit but not later than July 1, 1997).
Section 2.9 -- Continuity of Construction. Construction, once undertaken, shall
proceed in a continuous and reasonably expeditious manner until Physical
Completion, as such term is defined in Section 2.10, is achieved, which shall
not occur later than 18 months after the completion of the foundation for the
Project. Any delay caused by acts of God, fire, accident, casualty, cessation of
activity due to refusal to work by labor, or any other caused not attributable
to the failure of Developer to use reasonable care and due diligence, however,
shall be excused by Owner, provided that Developer shall use its best efforts to
minimize any such delays and shall resume construction at the earliest possible
time.
Section 2.10 -- Completion of Construction.
(a) For the purposes of this Agreement, the terms "Physical Completion" or
"Physically Completed" shall mean the date on which the building and
improvements described and set forth in the Final Plans have been completed
and the Project shall have been approved for and received a certificate for
temporary or permanent occupancy by the local building inspector, and by
the State Fire Xxxxxxxx in the event his or her approval is required ( the
"Certificate of Occupancy"). Physical Completion shall be deemed to have
been achieved notwithstanding that any of such officials or agencies have
issued a Certificate of Occupancy with conditions or that there exists a
Punch-List listing items requiring completion or correction, so long as
such conditions or Punch-List items do not prevent or prohibit occupancy as
determined by Owner in its sole discretion.
(b) Developer will use its reasonable best efforts to notify Owner at least
ninety (90) days prior to the time that Developer estimates that the
Project will be Physically Completed, whereupon Owner will diligently
proceed to fulfill all other conditions necessary for licensure and Owner
will apply in a timely manner for all licenses and permits necessary to
commence operation of the Project. After such notice from Developer, Owner,
to the extent necessary to perform administratiave activities may, so long
as it does not interfere with completion of construction, enter upon the
Property in an effort to coordinate initial licensure.
Section 2.11 -- Owner's Noninvolvement. Owner shall have access to the
construction site while construction is in progress, but it shall not be
empowered to interfere or become involved with construction or require changes
(other than through a formal change order process) thereto, provided, however
that Owner's agents shall have the right to view the construction in progress
and shall have access to the site for the purpose of equipping the Project and
preparing the Project for Operation.
Section 2.12 -- Punch List. If, at any time after the Project has been
Physically Completed, there shall exist any item or items requiring completion
or correction, then
Developer agrees to use all reasonable diligence to complete or correct such
item or items so that each conforms to the Final Plans. The parties shall make a
Punch-List of the items requiring completion or correction (the "Punch List").
Each item on the Punch-List shall be assigned a reasonable value based upon the
reasonable cost of completion or correction of the same or such other value as
may be required by Owner's lender ("Punch - List Amount"). Developer shall give
its written undertaking to complete each such item within forty-five (45) days
(or such other period of time as is mutually agreed upon by the parties) after
transfer of the title, further agreeing to permit Owner to complete any such
items, at Developer's expense, if Developer has failed to complete the same
within the forty-five (45) day time period.
Section 2.13 -- Work and Warranties. Upon completion of construction,
landscaping and installation of Personal Property, Developer will assign to
owner, in addition to any warranties created by law, all warranties and
guarantees received from designers, the Architect, the general contractor and
suppliers of equipment and furnishings, to the extent assignable. Developer will
agree to remedy any defect in construction caused by poor workmanship or
materials which are brought to its attention by written notice within a period
of one (1) year from the date of the issuance of the Certificate of Occupancy.
Aside from the foregoing, Owner hereby waives and Developer hereby disclaims all
other express and implied warranties of every kind or nature with respect to the
Project and the Personal Property, including, without limitations, waiving all
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 2.14 -- Subcontractors. Developer agrees to indemnify and save Owner
harmless from claims for payment by any subcontractor who furnishes materials or
supplies or performs labor or services in the prosecution of the work pursuant
to this Agreement. Developer reserves absolute discretion on the selection of
subcontractors.
Section 2.15 -- Financing Arrangements.
(a) Owner will obtain the Project Loan which shall be sufficient, together
with the Owner's equity contributions, to pay the full amount of the
Contract Price. This Agreement may be terminated by, if any, Developer or
Owner in its sole and absolute discretion and without further recourse to
any party (except for reimbursement of Project related expenses) in the
event that the closing and funding of the construction loan financing with
respect to the Project pursuant to the Project Loan (with all conditions
precedent to such closing either satisfied or irrevocably waived by the
lender) shall not have occurred by July 1, 1997.
(b) Owner and Developer also contemplate that the Property and Project,
together with all fixtures, furnishing, equipment, and articles of personal
property now owned or hereafter acquired by Owner which are or may be
attached to or used in connection with the Property or Project, together
with any and all replacements thereto and substitutions therefor, and all
proceeds thereof and all present and future rents, issues, leases, and
profits of the Property and Project will serve as
security for the payment obligations to any lenders relating to the Project
Loan or otherwise, and that Owner will be the principal obligor for the
repayment of all financial obligations thereunder after the transfer of
title to Owner. Owner therefore, agrees to execute and deliver all
commitments, promissory notes, mortgages, collateral assignments,
documents, certificates, affidavits, and other writings required to be
executed by any lender in connection with such financing.
ARTICLE III
Closing
Section 3.1 -- Date of Closing. The delivery of possession of the Property and
Project to Owner and payment of the Contract Price, less 150% of the value of
the Punch-List, shall take place contemporaneously within three (3) working days
after Physical Completion of the Project but in no event later than the date
established in Section 2.9; provided, however, that Developer has completed its
obligations as set forth in this Agreement, including, but not limited to,
Sections 2.10 and 2.13.
Section 3.2 -- Contract Price.
(a) The price to be paid by Owner to Developer for the development,
construction and furnishing of the Project and for the Property shall be
ELEVEN MILLION ELEVEN THOUSAND EIGHT HUNDRED FOURTEEN DOLLARS
($11,011,814.00) the cost incurred as the result of any unforeseen site
conditions and cost of Major and Minor Moveables in excess of their
respective Allowances (the "Contract Price").
(b) In addition to the Contract Price, if the Closing does not take place
within three (3) business days after Physical Completion due to delays
incurred through the fault of or through circumstances under the control of
Owner, Owner shall pay to Developer interest, payable monthly in arrears,
on the Contract Price accruing from the date which is three (3) days after
Physical Completion to the date of which is three (3) days after delivery
of possession of the Project pursuant to Section 3.1; such monthly interest
shall be computed at a rate equal to the Prime Rate as announced by Fleet
Bank, N.A. from time to time plus two percent (2%) per annum.
Section 3.3 -- Payment of Contract Price. At the time of transfer of title, the
balance of the Contract Price not paid through Developer's requisitions under
the construction financing for the Project shall be paid by Owner to Developer
by wire transfer, certified check or other mutually acceptable means less any
Punch-List Amount or retainage required by Owner's lender.
Section 3.4 -- Form of Conveyance and Status of Title. The Project and Personal
Property shall be conveyed by warranty xxxx of sale. The Project and Personal
Property may be subject to the mortgages and security interests described in
Section 2.15.
ARTICLE IV
Additional Responsibilities of Parties
Section 4.1 -- Developer's Responsibilities. In addition to its obligations
elsewhere expressed in this Agreement, Developer shall have the following
responsibilities:
(a) To obtain and pay for necessary building permits and the Certificate of
Occupancy;
(b) To pay for all labor and material required to develop, construct and
furnish the Project in accordance with the Final Plans (except as otherwise
expressly set forth herein) and to pay for the Personal Property to be
provided;
(c) Developer shall at all times, commencing with the date upon which
construction begins, carry the following types of insurance with an
insurance carrier or carriers acceptable to Owner's lender:
(i) Worker's compensation insurance fully covering all persons engaged
in the performance of this Agreement, in accordance with applicable
law.
(ii) Public liability insurance covering death or bodily injury with
limits of not less than $300,000 for one person and $1,000,000 for any
one accident or disaster; and property damage coverage limits of not
less than $100,000; all of which insurance shall name Owner's lender
as an additional insured.
(iii) "Builders Risk" insurance against damage or destruction by fire
and full extended coverage, including vandalism and malicious
mischief, covering all improvements to be erected hereunder and all
materials for the same which are on or about the Property, in an
amount equal to the full insurable value of such improvements and
materials; such insurance to be payable to Owner, Developer and
Owner's lender as their interests may appear, with a standard
mortgagee endorsement to Owner's lender or its assigns as mortgagee.
Developer shall furnish to Owner and Owner's lender if required by
such lender, duplicate policies of insurance as set forth in
subparagraphs (i), (ii), and (iii) hereof. Each of such policies
shall, if the insurance carriers so permit, contain a provision to the
effect that they may not be canceled
except upon ten (10) days prior written notice to Owner and Owner's
lender.
(d) At Closing, Developer shall deliver to Owner, at Owner's option:
(i) duly executed waivers of mechanic's liens signed by each
subcontractor which provided labor or materials on the Project; or
(ii) reasonable proof of payment or proof of a provision for payment
to such subcontractors; or
(iii) an indemnification to Owner with respect to same.
Section 4.2 -- Owner's Responsibilities. In addition to its obligations
elsewhere expressed in this Agreement, Owner shall have the following
responsibilities:
(a) To expeditiously pursue obtaining commitments for financing the
contemplated construction, including the furnishing of financial
statements, providing an appraisal of the Property and Project and by
execution of applications, notes, mortgages, assumption agreements and
other documents reasonably necessary to effectuate such financing or the
financing of the Personal Property.
(b) To pay for all professional and other staff personnel required for the
pre-opening and operation of the Project in sufficient time to permit
licensure by the Department at the date of physical completion.
(c) To pay to Developer, in addition to the Contract Price, the costs for
correcting unusual site conditions. Such payment shall be made on the basis
of the actual costs of Owner in correcting the same plus fifteen percent
(15%) of such costs to cover Developer's overhead expenses and shall be due
and payable upon the transfer of title to Owner. For the purpose of this
Agreement, the term unusual site conditions shall include, without
limitations, any of the following which have not been noted in the Final
Plans or otherwise disclosed in the due diligence materials:
(i) unusual soil or water conditions requiring extraordinary
preparation, i.e., piles, curtain drains, retaining walls, blasting or
rip-rap;
(ii) tying in of water, sewer or other utility services beyond the
locations as shown in the Final Plans;
(iii) holding tanks and pumps for the water system or the sprinkler
system;
(iv) water purification or filter system;
(v) leaching field; and
(vi) any requirement imposed upon Developer by governmental agencies
having jurisdiction, if not provided for in the Final Plans, because
of reasons other than errors or omissions in such Final Plans, such as
requirements imposed as conditions for the granting of any of the
Approvals.
(d) Owner shall be solely responsible for the removal of any hazardous
wastes and materials, if any, from the Property, at Owner's sole cost and
expense, and not as part of the Contract Price.
Section 4.3 -- Indemnification. Developer hereby agrees to indemnify and hold
Owner harmless from all liabilities, claims, and demands for personal injury or
property damage arising out of or caused by any act or omission of Developer,
its subcontractors, agents, or employees, or arising in or about the Property at
any time from the date of this Agreement until transfer of title. Developer
further covenants to use proper care and caution in the performance of its work
hereunder so as not to cause damage to any adjoining or adjacent property, and
Developer shall indemnify and hold Owner harmless from any liabilities, claims,
or demands for damage to such adjoining or adjacent property.
ARTICLE V
Contingencies
Section 5.1 -- Required Occurrences. This Agreement and the undertakings of
Developer shall, at the election of Owner be contingent upon the occurrence of
each of the following:
(a) Approvals. All of the Approvals and current utility availability
letters shall have been obtained by May 1, 1997.
(b) Title. An owner's title insurance policy commitment and Class A-2 ALTA
survey, satisfactory to Developer, in its sole discretion, shall have been
obtained by Owner which confirms that there are no exceptions or conditions
which would render title to the Property unmarketable or which will
prohibit or restrict the construction or operation of the Project or which
would prevent an institutional lender from closing a construction or
permanent mortgage loan for the Project in the usual course of its
business.
(c) Additional Due Diligence Regarding the Property. Developer shall have
received due diligence information concerning the Property, satisfactory to
Developer, in its sole discretion, including, without limitation, soil
tests and utility service confirmations to the extent not currently
available. On or before February 1, 1997, developer shall notify Owner of
any issues.
(d) Purchase of the Property. The Owner shall have purchased good record,
marketable fee simple title to the Property as set forth in Section 1.1 by
not later than the closing of the Project Loan.
(e) Construction Financing. The Owner shall have received construction
financing in the full amount of the Contract Price by June 1, 1997.
Section 5.2 -- Failure of Contingencies. In the event that any one or more of
the contingencies set forth in this Article is not satisfied, waived or deferred
by the parties in writing, within the period of time set forth above, then, upon
Notice, either party may terminate this Agreement. In such event, neither party
shall have any further responsibility or liability to the other. Developer
reserves the right, at its option, to waive or defer any one or more of the
conditions precedent.
ARTICLE VI
Additional Covenants of the Owner
Section 6.1 -- Indemnification by Owner. Owner hereby indemnifies and defends
Developer against any claims for unpaid fees or costs associated with the
Property or the Project incurred by or on behalf of Owner or Developer as a
result of any claim by any broker. The parties acknowledge that no broker was
responsible for procuring the transactions set forth in this Agreement, nor any
part hereof, and each party will indemnify and defend the other from any and all
claims, actual or threatened, for a commission or other compensation by any
third person with whom such party has had dealings.
Section 6.2 -- Confidentiality. Owner, its partners, affiliates, agents,
servants and employees hereby agree:
(a) To maintain in the strictest confidence the identity of developer; the
contents of this Agreement; the negotiations between the parties on the
terms of this Agreement; and any of Developer's proprietary information,
including, without limitation, financial information, projects, copies of
leases, real estate appraisals, and other information regarding the Project
and the business affairs and operations of developer which any of said
parties obtain from Developer in the course of negotiations for the
transactions contemplated hereby (the "Confidential Information");
(b) Not to disclose, without Developer's prior written consent (except to
the extent disclosure is required by applicable law or regulation), any
Confidential Information except to such parties' own agents, servants and
employees, bankers, consultants and other advisors to whom disclosure is
necessary in order to effectuate the transactions contemplated hereby; and
(c) To comply therewith for a period of two (2) years commencing on the
date of this Agreement.
Section 6.3 -- Provision of Further Information. Developer agrees to supply
complete financial information and any other data required in connection with
the construction or permanent financing for the Project and to execute, and
cause to execute, any and all documents which are required by the terms thereof.
ARTICLE VII
Concluding Provisions
Section 7.1 -- Entire Agreement. All prior understandings, letters of intent,
and agreements between the parties are merged in and superseded by this
Agreement (including all Exhibits hereto), which together with Owner's
partnership agreement and the management agreement between Owner and its
management agent fully and completely expresses their understanding with respect
to its subject matter.
Section 7.2 -- Representations. None of the parties shall be bound by any
promises, representation, or agreements except as herein expressly set forth.
Section 7.3 -- Amendments. This Agreement may not be amended, waived, modified,
altered or changed in any respect whatsoever except by a further agreement, in
writing, executed by each of the parties and consented to by the Owner.
Section 7.4 -- Joint Effort. The preparation of this Agreement has been a joint
effort of the parties, and the resulting document shall not be construed more
severely against one of the parties than the other.
Section 7.5 -- Brokers. Each of the Owner and Developer represents and warrants
to the other that no broker or finder has acted on its behalf in connection with
this Agreement or the transactions contemplated hereby or referred to herein;
and agrees to indemnify and hold and save the other harmless from any claim or
demand for commission or other compensation by any broker, finder or similar
agent claiming to have been employed by or on behalf of such party.
Section 7.6 -- Assignment. Developer shall have no right to assign his right nor
delegate its obligation under this Agreement to another entity or person without
the prior written consent of Owner except that Developer shall have the right to
assign this Agreement to, merge with or consolidate with an "Affiliate" (defined
herein as defined in the Securities and Exchange Act of 1934 and the regulations
thereunder) in connection with a public offering.
Section 7.7 -- Notices. All notices which may be given to any of the parties
hereunder shall be in writing and shall be hand delivered or sent by registered
or certified mail, return receipt requested, or by Federal Express, and postage
prepaid as follows:
(a) In the event that notice is directed to Owner, it shall be sent to it
at the address set forth above and a copy therefore sent to Amber Lights
Associates General Partnership, c/o CareMatrix Corporation, 000 Xxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx, with a copy to
Netwest Development Corporation, 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxx, or at such other address or
addresses as Owner shall from time to time designate by notice to
Developer.
(b) In the event that notice is directed to Developer, it shall be sent to
Netwest Development Corporation, 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxx with a copy to Xxx X.
X'Xxxxx at the same address and CareMatrix Corporation, 000 Xxxxx Xxxxxx,
Xxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxx, with a copy to Xxxxx X.
Xxxxx, III, Esq. at the same address; or at such other address or addresses
as Developer shall from time-to-time designate by notice to Owner.
The effective date of any such notice shall be the earlier of actual receipt by
the addressee or three (3) days after such notice is properly deposited for
mailing.
Section 7.8 -- Arbitration. Any dispute or controversy arising between the
parties involving the interpretation or application of any provisions of the
Agreement, or arising out of this Agreement, or concerning the construction of
the proposed Project or the furnishing thereof shall be submitted to and
determined by arbitration in accordance with the rules of the American
Arbitration Association then in effect.
Section 7.9 -- Captions. The captions of this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision hereof
Section 7.10 -- Successors. This Agreement shall be binding upon the parties
hereto, their respective heirs, executors, administrators, successors, and
assigns.
Section 7.11 -- Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original.
Section 7.12 -- Severability. The invalidity or unenforceability of one or more
of the phrases, sentences, provisions, clauses, Sections or Articles contained
in this Agreement shall not affect the validity or enforceability of the
remaining portions so long as the material purposes of this Agreement can be
determined and effectuated.
Section 7.13 -- Effective Date. This Agreement shall be deemed to be effective
as of the date set forth below.
Section 7.14 -- No Offer. The delivery of an unexecuted copy of this Agreement
shall not be deemed an offer. No rights are to be conferred upon any party until
this Agreement has been executed and delivered to each party.
Section 7.15 -- Governing Law. This Agreement shall be governed by the laws of
the State of Arizona.
Dated this 10th day of December, 1996 and executed under seal.
OWNER:
Witness: AMBER LIGHTS ASSOCIATES
GENERAL PARTNERSHIP
/s/ [ILLEGIBLE]
---------------------------
By: CareMatrix of Tucson, Inc.
Its General Partner/Managing Partner
By: /s/ [ILLEGIBLE]
----------------------------------
Name:
Title:
By: Netwest Development Corporation
Its General Partner
/s/ Xxx X. X'Xxxxx
---------------------------
By: /s/ Xxxxxxxxx X. Xxxx
----------------------------------
Name:
Title: President
DEVELOPER:
Witness: CAREMATRIX OF AMBER LIGHTS, INC.
/s/ [ILLEGIBLE]
--------------------------- By: /s/ [ILLEGIBLE]
----------------------------------
Name:
Title:
NETWEST DEVELOPMENT CORPORATION
/s/ Xxx X. X'Xxxxx By: /s/ Xxxxxxxxx X. Xxxx
--------------------------- ----------------------------------
Name:
Title: President
