DEVELOPMENT AGREEMENT
Exhibit 10.72
THIS DEVELOPMENT AGREEMENT, made and entered into this 30th day of June, 2014, by and between BR T&C BLVD., LLC, a Delaware limited liability company (hereinafter referred to as “Owner”), and MAPLE MULTI-FAMILY OPERATIONS, L.L.C., a Delaware limited liability company (hereinafter referred to as “Developer”).
WHEREAS, Owner is the owner of those certain tracts or parcels of land located lying and being in Houston, Texas and being more particularly described on Exhibit A attached hereto and by this reference made a part hereof (the “Property”);
As used herein, the following terms shall have the following meanings:
“Affiliate” means, as to any Person, (i) in the case of an individual, any relative of such Person (i.e. a sibling of such Person, a descendant of such Person or any of such Person’s siblings, or the spouse of any of them) and (ii) any Entity controlling, controlled by or under common control with such Person.
“Agreement” shall mean this Agreement, together with all exhibits attached hereto, as amended from time to time.
“Architect” shall mean EDI International.
“Architect’s Contract” shall mean the architect’s contract entered into by Owner and Architect providing for the development of the plans, drawings and specifications for the Project and contract administration for the construction of the Project.
“BR Investor” shall mean BR T&C BLVD JV Member, LLC, a Delaware limited liability company.
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“Budget Category” shall mean the line item categories of costs and/or expenses set forth in the Development Budget.
“Business Day” means a day which is not a Saturday or Sunday or a legally recognized public holiday in the United States of America, the State of Texas or the State of New York.
“Completion Date” shall mean, with respect to the Development Work, the date upon which the last of the following shall have occurred: (i) the Architect has certified that the construction of the Project has been substantially completed in accordance with the Plans and Specifications (subject to completion of punch list items estimated to cost not more than
$200,000); and (ii) a certificate of occupancy has been issued with respect to the Project by the City of Houston.
“Completion Milestones” means, for each of the phases of the Project identified in the table below, the date for such phase set forth in the table below, as extended for delays resulting from Force Majeure of which Developer promptly notifies Owner:
Begin basement level concrete pours | July 29, 2015 |
Begin framing residential units | February 24, 2016 |
Delivery of first residential unit | September 9, 2016 |
All residential units | May 22, 2017 |
“Construction Contract” shall mean that certain Owner-Contractor Construction Agreement between the Owner and Contractor for the construction of the Project, as may be modified from time to time.
"Construction Lender" shall mean Compass Bank.
"Construction Loan" shall mean that certain loan in the amount of $57,000,000 provided to Owner by the Construction Lender and other lenders, secured by the Project, for the purpose of financing the construction of the Project.
“Construction Recoveries” shall mean all recoveries from subcontractors, suppliers, insurers and similar Persons in respect of construction warranty obligations, construction defects or similar claims.
“Contractor” shall mean Maple Multi-Family TX Contractor, L.L.C., a Texas limited liability company, or such other successor general contractor(s) as may be retained by Owner from time to time to construct the Project.
“Debt Service” shall mean, for any period, scheduled principal, interest and other required payments (including any required loan rebalancing or remargining payments, except to the extent that such loan rebalancing is required by the Construction Lender as a result of a Hard Cost Overrun or Soft Cost Overrun) owing on the Construction Loan or any other loan to the Owner.
“Developer” shall have the meaning set forth in the Preamble.
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“Development Budget” shall mean the budget of all expenses estimated and projected to be incurred with respect to the planning, design, development, construction and operations to stabilization of the Project attached hereto as Exhibit D, as such budget may, from time to time, be amended by the mutual consent of Owner and Developer or to allow for reallocation of line items by Developer in accordance with Section 4.2 of this Agreement.
“Development Consultant” shall mean the development consultant selected by BR Investor to the extent contemplated in the LLC Agreement to monitor and review, on behalf of Owner, at Owner’s expense, the construction and development of the Project. For avoidance of doubt, if BR Investor fails to select a Development Consultant, then there shall be no Development Consultant and all references to the Development Consultant in this Agreement shall be ignored.
“Development Costs” shall mean all costs (both hard costs and soft costs) incurred in connection with the Development Work.
“Development Fee” shall mean the fee payable by Owner to Developer pursuant to the provisions of Section 11.1 of this Agreement with respect to the Development Functions.
“Development Functions” shall mean those obligations, responsibilities and functions of Developer set forth in this Agreement.
“Development Period” shall mean the period commencing on the date hereof and terminating on the date upon which Final Completion is achieved.
“Development Work” shall mean the work described in the Plans and Specifications.
“Development Work Control Report” shall have the meaning set forth in Section 6.2.2 hereof.
“Discretionary Changes” shall mean any modifications or changes that the Members of Owner agree to make to the Plans or the Project (and any applicable corresponding changes to the Development Budget) that (i) are not required to complete the construction of the Project as originally contemplated by the Plans and Specifications and (ii) are not necessitated by deficiencies in the Plans and Specifications or government-mandated revisions of the Plans and Specifications or the Project (except government-mandated revisions resulting from changes in building codes or other applicable laws after the date of this Agreement). Discretionary Changes include, for example, upgrades/downgrades of interior or exterior finishes, additional/fewer Project amenities, and increases/decreases in square footage.
“Draw Request” shall mean a drawing request on the Construction Loan submitted to the Construction Lender.
“Event of Default” shall mean any one or more of the events described in Section 12.2 or 12.3 of this Agreement.
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“Final Completion” shall mean achievement of the conditions for the final payment to the Contractor under the Construction Contract.
“Force Majeure” shall mean acts of God, war, riots, civil insurrections, hurricanes, tornados, floods, earthquakes, epidemics or plagues, acts or campaigns of terrorism or sabotage, interruptions to domestic or international transportation, trade restrictions, delays caused by any governmental or quasi-governmental entity, shortages of materials, natural resources or labor, labor strikes, governmental prohibitions or regulations including administrative delays in obtaining building permits, inability to obtain materials or any other cause beyond the reasonable control of the Developer.
“Hard Cost” shall mean all items under the category heading “Hard Cost” in the Development Budget.
“Hard Cost Overrun” shall mean, from time to time, the amount by which (i) the aggregate Hard Costs incurred in connection with the development and construction of the Project as of the date of measurement, excluding Hard Costs relating to Force Majeure Events or Discretionary Changes, exceed (ii) the sum of (A) the portion of the Development Budget allocated to Hard Costs (after any reallocation among line items within the Development Budget allowed by this Agreement), including the available Hard Cost contingency in the Development Budget, (B) Construction Recoveries applied to payment of Hard Costs and (C) all insurance proceeds collected as a result of casualty losses occurring prior to the Completion Date to the extent applied to payment of Hard Costs. Hard Cost Overruns include, without duplication, loan rebalancing payments required by the Construction Lender in connection with the Construction Loan, but only to the extent that such loan rebalancing payments are required by the Construction Lender as a result of an actual or projected Hard Cost Overrun not relating to Force Majeure Events or Discretionary Changes. Hard Cost Overruns also include overruns resulting from Non-Discretionary Changes but not overruns resulting from Discretionary Changes.
“Indemnified Party” shall mean, when used with respect to a Person, (i) any Affiliate of such Person, (ii) any Person who holds a direct or indirect ownership interest in such Person or in any such Affiliate, (iii) the respective officers, directors, trustees, beneficiaries, investment advisors, licensees, agents and employees of such Person, any Affiliate of such Person or any Person who holds a direct or indirect ownership interest in such Person or in any such Affiliate and (iv) the respective successors (other than by assignment) of any Indemnified Affiliate.
“Key Persons” shall mean Xxxxxxx X. Xxxxxx, Xxxx Xxx and Xxxx Xxxxx.
“LLC Agreement” shall mean that certain Limited Liability Company Agreement of the Owner dated June 30, 2014, as the same may be amended from time to time.
“Mandatory Developer Cost Overrun Loan” shall have the meaning set forth in Section
4.4. hereof.
“Members” shall mean the members of the Owner as identified in the LLC Agreement.
“Monthly Draw Package” shall have the meaning set forth in Section 6.2.1 hereof.
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“Monthly Financial Reporting Package” shall have the meaning set forth in Section 6.2.3 hereof.
“Monthly Reports” shall have the meaning set forth in Section 6.2 hereof.
“Non-Discretionary Changes” shall mean any modifications or changes that the Owner is required to make to the Plans and Specifications or to the Project (other than Discretionary Changes), except a government-mandated modification or change resulting from changes in building codes or other applicable laws after the date of this Agreement. Non-Discretionary Changes include, for example, changes to the Plans and Specifications or the constructed portions of the Project to correct design or construction deficiencies or to implement government-mandated revisions not resulting from changes in building codes or other applicable laws after the date of this Agreement, or Contractor claims under the Construction Contract for increased compensation due to errors or inconsistencies in the Plans and Specifications, concealed conditions, delays or other reasons, in any such case unless resulting from a Force Majeure Event.
“Owner” shall have the meaning set forth in the Preamble.
“Person” shall mean an individual, partnership, corporation, limited liability company, trust, real estate investment trust, unincorporated association, joint stock company or other entity or association, including any governmental unit.
“Plans and Specifications” shall mean the plans and specifications with respect to the Project more particularly described on Exhibit C attached hereto and by reference made a part hereof, as such plans and specifications may, from time to time, be modified by the mutual consent of Owner and Developer or by Developer in accordance with Section 3.2.3 of this Agreement.
“Prime Rate” shall mean the rate of interest published in The Wall Street Journal from time to time as the “prime rate” and, if the prime rate is no longer published by The Wall Street Journal, a rate of interest which is a reasonable substitute therefor as mutually agreed to by Owner and Developer.
“Project” shall mean the apartment project and associated site work intended to be completed upon the Property as a result of the Development Work.
“Project Development Schedule” shall mean the schedule for development of the Project attached as Exhibit E, as such schedule may, from time to time, be amended in accordance with this Agreement.
“Property” shall have the meaning set forth in the Recitals.
“Soft Cost(s)” shall mean all items under the category heading “Soft Cost” in the Development Budget. Soft Costs include, without limitation, architectural and engineering fees and legal fees.
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“Soft Cost Overrun” shall mean, from time to time, the amount by which (i) the aggregate Soft Costs incurred in connection with the development and construction of the Project as of the date of measurement, excluding Soft Costs relating to Force Majeure Events, property taxes (unless attributable to failure to achieve the Completion Milestones), Debt Service (unless attributable to failure to achieve the Completion Milestones), Discretionary Changes and/or operating deficits of the Project (unless attributable to failure to achieve the Completion Milestones), exceed (ii) the sum of (A) the portion of the Development Budget allocated to Soft Costs (after any reallocation among line items within the Development Budget allowed by this Agreement), including the available Soft Cost contingency in the Development Budget, (B) Construction Recoveries applied to payment of Soft Costs and (C) all insurance proceeds collected as a result of casualty losses occurring prior to the Completion Date to the extent applied to payment of Soft Costs. Soft Cost Overruns include, without duplication, loan rebalancing and remargining payments required by the Construction Lender in connection with the Construction Loan, but only to the extent that such Construction Loan rebalancing or remargining payments are required by the Construction Lender as a result of an actual or projected Soft Cost Overrun not relating to Force Majeure Events, property taxes (unless attributable to failure to achieve the Completion Milestones), Debt Service (unless attributable to failure to achieve the Completion Milestones), Discretionary Changes and/or operating deficits of the Project (unless attributable to failure to achieve the Completion Milestones). Soft Cost Overruns includes overruns resulting from Non-Discretionary Changes but excludes overruns resulting from Discretionary Changes.
“Specialists and Consultants” shall have the meaning set forth in Section 3.2.1(a) hereof. “TCR Member” shall mean HCH 106 Town and County L.P.
ARTICLE 2 ENGAGEMENT OF DEVELOPER
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ARTICLE 3 RESPONSIBILITIES OF DEVELOPER
(a) To the extent required for functions not handled by the previously-retained Specialists and Consultants identified on Exhibit B, recommending to Owner planning, architectural, engineering, interior design and other specialists and consultants for the Development Work (collectively, the “Specialists and Consultants”), coordinating the process for the selection by Owner of such Specialists and Consultants for the Development Work (including a competitive bidding process, if requested by Owner), reviewing and analyzing proposals from such Specialists and Consultants, and, following approval thereof by Owner, preparation and/or review and evaluation of proposed contracts between Owner and such Specialists and Consultants and the negotiation of such proposed contracts (it being understood that all such contracts shall be signed by Owner and, therefore, are subject to Owner’s prior approval);
(b) Assisting Owner in establishing the design criteria of the Development Work;
(c) Supervising the preparation of boundary and topographic surveys of the Property or applicable portions thereof;
(d) Supervising the preparation of environmental site assessments and geotechnical reports of the Property to the extent not yet prepared by or on behalf of Owner by Developer;
(e) Supervising the preparation of site plans showing the location of roads, utilities, buildings, parking areas and other improvements to be constructed in connection with the Development Work;
(f) Analyzing the entitlements required for the proposed Project including zoning, parking requirements, traffic studies, site plan approvals, wetlands permits, DOT access permits, resubdivision requirements, offsite improvements, environmental approvals, etc.;
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(g) If applicable, analyzing major tenant restrictions in the supplemental agreements, leases, and other documents pertaining to the Project; and
(h) Assessing the potential tenants, rents, leasing pace, tenant concessions, and other enticements to tenants.
(a) Securing, on Owner’s behalf, the necessary entitlements to construct the proposed Project (all such entitlements and terms thereof subject to Owner’s prior written approval);
(b) Reviewing, commenting on and coordinating changes in preliminary design and working drawings, specifications and site plans that are requested by Owner or Development Consultant;
(c) Working with Owner, Development Consultant, the Architect and the other Specialists and Consultants to enhance compatibility of architectural drawings with other elements of the Development Work such as interior design;
(d) Obtaining cost estimates from Specialists and Consultants and/or contractors and preparing revisions to the Development Budget for the construction phase in light of design development;
(e) Advising Owner and Development Consultant with respect to preferred construction methods;
(f) With the Architect and other appropriate Specialists and Consultants, undertaking cost analysis, value engineering and constructability reviews for the Project and evaluating design alternatives;
(g) Administering and overseeing the selection by Contractor of major subcontractors as appropriate for construction of the Project; and
(h) Obtaining, directly or through Contractor, on behalf of Owner all building, development, and other permits and governmental approvals necessary to commence construction of the Development Work.
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(a) Making visits to the job site as and when necessary to perform its obligations pursuant to, and in accordance with, the terms of this Agreement and to review the work and progress of construction with Contractor and with the Architect and the other Specialists and Consultants, including, without limitation, observing Contractor’s final testing, start-up and initial operation (which initial operation shall be in good working order) of all utilities, operational systems and equipment. Developer shall oversee the testing and delivery of all building systems in consultation with Owner to ensure complete working operation prior to acceptance by Owner;
(b) Consulting with Owner and Development Consultant regarding proposed changes and modifications to the Plans and Specifications which are material in nature (i.e. which will result in increases to the development costs for the Project of more than
$75,000 per change, and $200,000 on a net aggregate basis); obtaining Owner’s written approval for any material changes and modifications to the Plans and Specifications as a condition of implementation of such changes and modifications (provided, however, that for any changes and modifications that do not reach the $75,000/$200,000 levels described above, Developer may implement such changes and modifications at its discretion, with no requirement for Owner’s approval); and coordinating issuance of change orders if and when changes and modifications as described above are approved in writing by Owner (if required), Contractor, and other necessary parties;
(c) Responding promptly (and in writing if requested) to any questions from Owner and/or Development Consultant regarding the work or progress of construction, construction methods, scheduling, and the like;
(d) Coordinating the turnover of portions of the Development Work as and when the same are completed, including performing walk-throughs to identify punch list items and timely ensuring the follow through completion of all such punch list items;
(e) Coordinating, overseeing and managing all efforts by all appropriate parties to complete the Development Work, such efforts to include, without limitation, assisting in the scheduling of inspections and the preparation and timely disposition of all punch lists;
(f) Coordinating, overseeing and managing all efforts by all appropriate parties to timely complete the punch list items identified by Development Consultant, Owner, Architect, Specialists and Consultants, Contractor and Developer;
(g) Managing compliance by Contractor with the Construction Contract, including without limitation monitoring compliance with the Project Development Schedule all provisions thereof related to the insurance responsibilities of Contractor and its subcontractors;
(h) Causing the Contractor to maintain at the Project site for Owner and Development Consultant (i) one record copy of all contracts, drawings, specifications, addenda, change orders and other modifications, in good order and marked currently in readable form to record changes and selections made during construction, and in addition, approved shop drawings, product data, samples and similar required submittals and (ii) record of principal building layout lines, elevations of the bottom of the footings and key site elevations;
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(i) Facilitating and implementing in an expeditious manner all close-out duties to complete the Development Work;
(j) Obtaining, or causing the Contractor to obtain, on behalf of Owner, a permanent certificate of occupancy (or other appropriate and necessary governmental permission to occupy) with respect to the portions of the Project which will require the same;
(k) Obtaining all final warranties (and all related documentation), to the extent provided for in the Construction Contract, from Contractor and any subcontractors with respect to the Development Work and construction of the Project and all materials provided in connection therewith for the benefit of Owner; and
(l) Subject in all cases to the approval of the Owner and the Construction Lender under the Construction Loan, facilitating and implementing the process of submitting Draw Requests for approvals, collecting and providing all applicable back up and documentation necessary for such Draw Requests to be processed by the Construction Lender in accordance with the terms of the Construction Loan and overseeing the proper expenditure or distribution of all such funds to the parties entitled thereto once released by Construction Lender or Owner for purposes of paying such related expenses. Developer shall be responsible for all associated accounting and record keeping on behalf of Owner with respect to any Draw Requests and fund disbursements, and in connection therewith shall provide contemporaneous notices to the Owner of any Draw Requests submitted in connection with the Development Work and the construction of the Project along with copies of all documentation submitted in connection with any Draw Request. Developer will further cooperate with Owner in providing complete access (upon reasonable written notice) to all associated records of Developer in connection therewith, at Owner’s cost.
(a) Providing Owner and Development Consultant with the Monthly Reports as provided in Section 6.2 hereof so as to keep Owner fully apprised of the progress of the Development Work;
(b) Preparing and submitting to Owner and Development Consultant supplements and refinements to the Development Budget for Owner’s approval as development of the Development Work moves through its various phases to completion;
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(c) Monitoring the Project Development Schedule and the progress of development and construction of the Project in comparison thereto;
(d) Notifying Owner and Development Consultant of any actual or anticipated change in the Project Development Schedule of which Developer becomes aware, including promptly advising Owner of any delays in the Project Development Schedule and the reasons for any such delay;
(e) Advising Owner with respect to (1) all material dealings with all governmental authorities who have control over the development of the Project and the Development Work and the construction of all improvements, and (2) the contest by Owner of any law, regulation or rule which Developer deems to adversely affect the Development Work;
(f) Coordinating and managing the performance of Contractor, the Architect and the other Specialists and Consultants under their respective contracts with Owner and giving or making Owner’s instructions, requirements and approvals provided for in such contracts (after obtaining Owner’s written approval with respect thereto to the extent that the LLC Agreement requires approval by BR Investor for the related action);
(g) Using commercially reasonable and diligent efforts to resolve and settle any conflict among Contractor, the Architect and the Specialists and Consultants and keeping Owner and Development Consultant fully informed with respect to such conflicts and settlement discussions;
(h) Assisting Owner and Development Consultant with respect to Owner’s negotiations with all applicable utility companies, whether governmental or otherwise, for the installation of all applicable utility services to the Project on a timely basis, with Owner bearing the cost of all required utility deposits and costs of installation;
(i) Organizing and coordinating a schedule of monthly draw meetings or teleconferences to be attended by Developer, Owner and Development Consultant, which schedule shall set forth the dates on which the monthly draw meetings will be held;
(j) Reviewing applications for payment submitted by Contractor, the Architect and other Specialists and Consultants and preparing documentation for all requests for payments from Owner, in form and content sufficient to permit Owner and Development Consultant to determine the appropriateness of such payments;
(k) Coordinating the performance of any tests and inspections required by the Construction Lender or any governmental authority;
(l) Subject to the terms of this Agreement, using reasonable efforts to cause compliance by the appropriate party with the Owner’s obligations relating to the development of the Project undertaken by Owner in any written agreement (including loan agreements, mortgages and leases), and notifying Owner and Development Consultant promptly in the event Developer becomes aware of any material noncompliance;
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(m) In addition to, and in furtherance of, the obligations under Section 3.2.3(l) above, sending to Owner and Development Consultant the Monthly Draw Package and, at Owner's request, copies of all notices received by Developer from the Architect, Contractor, the Specialists and Consultants and governmental authorities;
(n) Advising Owner with respect to any master planning issues relating to the Development Work, including, but not limited to, traffic planning issues, historic preservation issues, aesthetic issues relating to buildings and sites, and building occupancy criteria issues;
(o) Timely filing on behalf of, and as agent for, Owner any notices of completion required or permitted to be filed and taking such action as may be required to obtain licenses or permits required for construction or occupancy of the Project;
(p) Recording and reporting to Owner and Development Consultant the progress of the construction of the Development Work, which reports shall be made on a monthly basis in accordance with Section 6.2;
(q) Causing complete and accurate files, books of account and other records of all development and construction costs and expenses of the Development Work incurred by Owner to be prepared and maintained;
(r) Cooperating with Owner, the Members of Owner and their respective agents and representatives (including, without limitation, Development Consultant) in connection with construction of the Project and the performance of the Development Work;
(s) Promptly advising Owner if Developer at any time determines that the Development Budget for the Development Work is not compatible with the then- prevailing status of the Development Work and does not or is not reasonably expected to adequately provide for the completion of the Development Work under the remaining and unspent portion of the applicable categories of the Development Budget; and
(t) Performing generally such other acts and things as may be required in accordance with this Agreement for the full and complete supervision and coordination of the planning, design, development and construction of the Project and performance of the Development Work and advising and consulting with Owner and Development Consultant with respect thereto.
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ARTICLE 5 AUTHORITY OF DEVELOPER
(5) Business Days after receipt of a written request, provided that if the Construction Lender’s consent or approval is required therefor under the loan documents for the Construction Loan, then such five (5) Business Day period shall be tolled until the Construction Lender’s consent or approval, as the case may be, is granted):
(a) Entering into any construction or architectural contracts or any contract with any Specialists or Consultants or any amendments to such contracts, or taking any action or giving any notice, the taking or giving of which will (i) result in the release or discharge of any party to any such contract or (ii) consent to any other party to any contract to assign or otherwise transfer its rights or obligations thereunder.
(b) Subject to Section 3.2.3(b) of this Agreement, authorizing or approving any proposed change in the Plans and Specifications as previously approved by Owner.
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(c) Entering into or amending any agreement or other arrangement for the furnishing to Owner of goods or services for the Development Work, to the extent Owner’s obligation under such agreement or arrangement (as so amended) exceeds amounts provided for in the Development Budget plus the amount of any funds Developer is obliged to provide through Mandatory Developer Cost Overrun Loans.
(d) Commence, settle or otherwise compromise any litigation for or on behalf of Owner.
(e) Except as expressly provided in this Agreement, commit or otherwise obligate Owner in any manner with any party, including, without limitation, any governmental authority, utility company, lender, tenant, Specialist or Consultant, Contractor or Architect.
ARTICLE 6 ACCOUNTING AND REPORTS
6.1 Books of Account. Developer shall maintain or cause to be maintained for a period of not less than two (2) years after Final Completion of the Development Work, proper and complete records and books of account which shall fully and accurately reflect the planning, design, permitting, scheduling, construction and completion of the Development Work. All entries to such books of account shall be supported by sufficient documentation to permit Owner, the Members of Owner, Development Consultant and any of their respective auditors to ascertain that said entries are properly and accurately recorded. Such books of account shall be located at Developer’s offices in Houston, Texas or at Developer’s principal accounting office and shall be maintained in accordance with Developer's standard accounting methods consistently applied. Developer shall keep vouchers, statements, receipted bills and invoices and all other records covering all collections, if any, disbursements and other activities prior to Final Completion. During the requisite two (2) year period, at Owner’s request the originals of all such accounts and records, including all correspondence, shall be made available to Owner without charge therefor. Records and accounts shall be maintained on a basis sufficient to permit the preparation therefrom of financial statements in accordance with generally accepted accounting principles and shall be adequate to provide Owner, the Members of Owner and their respective representatives with all financial information as may reasonably be needed by any of the foregoing. Upon the expiration of the requisite two (2) year period or later, if Developer seeks to destroy such records, Developer shall provide BR Investor and Owner with the opportunity to copy or maintain the original records and accounts at no additional cost. This Section 6.1 shall survive any termination of this Agreement.
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(v) a copy of the Draw Request submitted to the Construction Lender.
All documents shall be type written and shall not have any handwritten changes to dollar values. Any handwritten changes of a non-dollar nature shall be initialed and dated by the Person who made the change. Neither the giving of notice by Developer to Owner of excess expenditures in any month nor the payment of such excess expenditures, shall act to amend or otherwise modify the Development Budget unless such modification is specifically approved by Owner in writing or otherwise allowed by this Agreement. Developer shall provide the reports set forth in this Section 6.2 on or before the twenty-fifth (25th) day of the month following the month for which reporting is being provided.
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ARTICLE 9 INDEMNITY; LIABILITY; PLANS
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ARTICLE 11 COMPENSATION OF DEVELOPER
11.1 Development Fee for the Development Work. For and in consideration of the services rendered by Developer with respect to the Development Work, Owner shall, subject to and in accordance with the terms and provisions of this Agreement, pay to Developer during each month of the Development Period, the applicable monthly installment of the Development Fee. The Development Fee shall be $2,382,568; provided, however, that if there is a material change in the scope of the Development Work, Developer and Owner shall negotiate in good faith to adjust, upward or downward, as applicable, the Development Fee to reflect the increase or decrease in the Development Budget resulting from such change in scope. The applicable monthly installment of the Development Fee for a month shall be based upon the percentage of the Development Work completed as of the end of the relevant month; provided, however, that to the extent that draws against the Member’s Initial Capital Contributions (as defined in the LLC Agreement) and the Loan or, to the extent not funded from those sources, other existing available funds of the Company are not sufficient to pay the Development Fee on such basis, the excess amount shall be deferred until Final Completion, at which time the unpaid balance of the Development Fee shall be due in full.
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ARTICLE 12
(a) If Developer shall fail to observe, perform or comply with any material term, covenant, agreement or condition of this Agreement which is to be observed, performed or complied with by Developer under the provisions of this Agreement, and such failure shall continue uncured for thirty (30) calendar days after the giving of written notice thereof by Owner to Developer specifying the nature of such failure, unless such failure can be cured but is not susceptible of being cured within said thirty (30) calendar day period, in which event such a failure shall not constitute an Event of Default if Developer commences curative action within said thirty (30) calendar day period and thereafter prosecutes such action to completion with all due diligence and dispatch and completes such cure within ninety (90) calendar days after the giving of such notice.
(b) If Developer shall make a general assignment for the benefit of creditors;
(c) If any petition shall be filed by or against Developer in any court, pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, dissolution, liquidation, composition, extension, arrangement or insolvency proceedings, and Developer files, consents to or directly or indirectly acquiesces to such petition;
(d) If, in any proceeding, a receiver, trustee, liquidator or similar court- appointed agent be appointed for all or a substantial portion of the property or assets of Developer, and same shall not be discharged within thirty (30) calendar days after such appointment;
(e) If Developer shall misappropriate any funds of Owner or the Construction Lender in the possession or control of Developer (unless such misappropriation is caused by personnel employed in the performance of Developer’s responsibilities and such individual’s relationship with Developer is immediately terminated and the misappropriated funds are restored within five (5) Business Days of such misappropriation);
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(f) If Developer shall commit willful misconduct, gross negligence or an act of fraud against Owner or otherwise in connection with the Construction Loan, the Project or the Development Work;
(g) If, at any time prior to the Completion Date, at least one of the Key Persons or another Person reasonably acceptable to the BR Investor does not continue to be actively involved in the Project and able to perform his or her responsibilities as a representative of the TCR Member;
(h) Failure to achieve the Completion Milestones; or
(i) If the TCR Member is removed as a Manager of Owner pursuant to Section 5.9 of the LLC Agreement.
(a) If Owner shall fail to observe, perform or comply with any material term, covenant, agreement or condition of this Agreement which is to be observed, performed or complied with by Owner under the provisions of this Agreement, and such failure shall continue uncured for thirty (30) calendar days after the giving of written notice thereof by Developer to Owner specifying the nature of such failure, unless such failure can be cured but is not susceptible of being cured within said thirty (30) calendar day period, in which event such a failure shall not constitute an Event of Default if Owner commences curative action within said thirty (30) calendar day period and thereafter prosecutes such action to completion with all due diligence and dispatch and completes such cure within ninety (90) calendar days after the giving of such notice.
(b) If Owner shall make a general assignment for the benefit of creditors;
(c) If any petition shall be filed by or against Owner in any court, pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, dissolution, liquidation, composition, extension, arrangement or insolvency proceedings, and Owner files, consents to or directly or indirectly acquiesces to such petition;
(d) If, in any proceeding, a receiver, trustee, liquidator or similar court- appointed agent be appointed for all or a substantial portion of the property or assets of Developer, and same shall not be discharged within thirty (30) calendar days after such appointment; or
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(e) If any amounts or sums due by Owner to Developer under this Agreement are not paid when due and such non-payment continues for thirty (30) calendar days after written notice from Developer to Owner specifying the payment Owner has failed to make.
13.1 Governing Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. Each party hereby consents to the exclusive venue and jurisdiction of the state and federal courts located within the State of New York, Borough of Manhattan, waives personal service of any and all process upon such party, and consents to service of process by registered mail directed to such party at the address stated in Section 13.7, but service so made shall be deemed to be completed only upon actual delivery thereof (whether accepted or refused) any contrary provision of Section 13.7 notwithstanding. In addition, each party consents and agrees that venue of any action instituted under this Agreement shall be proper only in the State of New York, Borough of Manhattan, and each party hereby waives any objection to venue.
-26- |
-27- |
If to Developer:
Maple Multi-Family Operations, L.L.C. 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Xxx
Email: xxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxxx Day
X.X. Xxx 000000
Xxxxxxxx, Xxxx 00000-0000
Email: xxxxxxxx@xxxxxxxx.xxx
If to Owner:
BR T&C Blvd., LLC
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Xxx
Email: xxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Bluerock Real Estate, L.L.C.
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx and Xxxxxxx Xxxxx, Esq.
Email: xxxxx@xxxxxxxxxx.xxx and xxxxxx@xxxxxxxxxx.xxx
-28- |
And
Xxxxxxx X. Xxxxxx
Xxxxx Day
X.X. Xxx 000000
Xxxxxxxx, Xxxx 00000-0000
Email: xxxxxxxx@xxxxxxxx.xxx
And
Xxxxxxxxx Xxxxxxxxx
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: S. Xxxxxx Xxxxxxxx
Email: XXxxxxxxx@xx-xxx.xxx
A party may change its address for purposes of the giving of notices hereunder by notice given in accordance with this Section 13.7.
13.8.1 Except as otherwise provided in Section 13.8.2 below, neither party hereto shall have the right to assign this Agreement or any of its rights hereunder without the prior written consent of the other party, and any such assignment in the absence of such written consent shall for all purposes be deemed null and void.
13.8.2 Notwithstanding the provisions of Section 13.8.1 hereof, Owner shall have the absolute right and privilege, at its sole option and in its sole discretion, at any time and from time to time, to assign Owner’s rights and interests under this Agreement, subject to the provisions hereof and all of the rights of Developer hereunder, in whole or in part, to the Construction Lender as collateral in connection with the Construction Loan procured by Owner and, in any such case, Developer will execute any reasonable Construction Lender required documentation in connection therewith.
-29- |
-30- |
[Signature Page Follows]
-31- |
BR T&C Blvd., LLC | Maple Multi-Family Operations, L.L.C. | |||||
By: | HCH 106 Town and County L.P., a | |||||
Delaware limited partnership, a manager | ||||||
By: | Maple Multi-Family Development, | By: | /s/ Xxxxxxx X. Xxxxx | |||
L.L.C., a Delaware limited liability | Name: | Xxxxxxx X. Xxxxx | ||||
company, general partner | Title: | Vice President | ||||
By: | /s/ Xxxxxxx X. Xxxxx | |||||
Name: | Xxxxxxx X. Xxxxx | |||||
Title: | Vice President |
[Signature Page to Development Agreement]
-32- |
EXHIBIT A
LEGAL DESCRIPTION
Being a tract or parcel, containing 2.3190 acres (101,014 square feet) of land, situated in the Xxxxxx Xxxxxxx Survey, Abstract Number 3, City of Houston, Xxxxxx County, Texas, and consisting of four tracts: 1) all that certain called 251244 square feet described in deed to TADI Investments, Inc., as recorded under Xxxxxx County Clerk's File (H.C.C.F.) Number W388396; 2) all that certain called 1.0148 acres described in deed to Performance Development L.P., as recorded under Xxxxxx County Clerk's File (H.C.C.F.) Number 20120530439; 3) all that certain called 0.475 acre described In deed to Xxxxx Xxxx Xxx, as recorded under H.C.C.F. Number 1207436; and 4} being part of and out of Unrestricted
Reserve "A", Block 1, CITYPOINT, a plat of subdivision recorded under Film Code Number 653107, Xxxxxx County Map Records; also being part of and out of that certain tract described In deed to Memorial City Redevelopment Authority (herein referred to as the "MCRA Tract"), as recorded under H.C.C.F. Number 20140105540; said 2.3190 acre tract being more particularly described as fol1ows {bearings herein are grid bearings based on the Texas Coordinate System, South Central Zone Number 4204; NAO 83; distances are surface distances based on the U.S. Survey Foot and may be converted to grid by multiplying by a combined scale factor of 0.999870017);
BEGINNING at the Intersection of the south right-of-way (R.O.W.) line of Interstate Highway 10, based on a varying width, with the west R.O.W. line of Town and Country Boulevard, based on a 100-foot width and dedicated to City of Houston (public), under H.C.C.F. Number C703140; also being the northeast xxxxx of that certain called 25,244 square feet described in said deed to TADI Investments, lnc., and of the herein described tract, from which a Texas Department of Transportation aluminum disk found for reference bears South 04°33 West, 0.90 feet;
XXXXXX, Xxxxx 00x00'00" Xxxx, with the west R.O.W. line of said Town and Country Boulevard, at a distance of 498.80 feet passing the northeast corner of the aforesaid Unrestricted Reserve "A" of CITYPOINT, and continuing In all a total distance of 558.74 feet to a 5/8-inch Iron rod with plastic cap, stamped "TERRA SURVEYING", set marking the southeast xxxxx of the herein described tract;
THENCE, South 87°17'43" West, departing said west R.O.W. line and along a line 60.00 feet northerly of and parallel with the south line of said MCRA Tract, a distance of 180.09 feet to a 5/8-lnchiron rod with plastic cap, stamped "TERRA SURVEYING", set in the east line of that certain called 3.1080 acres described In deed to SFP Hotel Partners, L.P., as recorded under H.C.C.F. Number 20130225814; said iron rod also being in the west line of said Unrestricted Reserve "A" and said MCRA Tract, and marking the southwest xxxxx of the herein described tract;
THENCE, North 02°42'17" West, with the east line of said 3.1080 acre tract, and the west line of said Unrestricted Reserve "A" and said MCRA Tract, at 59.94 feet pass the southwest corner of the aforesaid 0.475 acre tract, and the northwest xxxxx of said Unrestricted Reserve "A" and said MCRA Tract, from which an "X.. In concrete found for reference bears North 02°42'17" West, 0.56 feet, and from which another "X" in concrete found for reference bears North 19043' West, 0.58 feet; continuing with said east line and the west line of said 0.475 acre tract. at 175.28 feet pass a 1/2 inch Iron rod found marking the southwest xxxxx of the aforesaid 1.0148 acre tract and the northwest xxxxx of said 0.475 acre tract: continuing with said east line and the west line of said 1.0148 acre tract, at a distance of 420.74 feet to a 5/8-inch iron rod with cap found marking the southwest corner of the aforesaid 25,244 square foot tract, and the northwest xxxxx of said 1.1048 acre tract. and continuing in all a total distance of 563.08 feet to a point in the aforesaid south R.O.W. line of Interstate Highway 10, same being the northeast xxxxx of said 3.1080 acre tract, the northwest xxxxx of the said 25,244 square foot tract and of the herein described tract, from which a found 5/8- ooh Iron rod with cap bears North 386' East, 0.19 feet;
XXXXXX, Xxxxx 00x00'00" Xxxx, with said south R.O.W. line and the north line of said 25,244 square foot tract, a distance of 180.14 feet to the POINT OF BEGINNING and containing 2.3190 acres (101,014 square feet) of land.
This description is based on an ALTA/ACSM Land Title Survey and drawing prepared by Terra Surveying Company, Inc., under Project Number 0000-0000-000, of even date.
EXHIBIT B
SPECIALISTS & CONSULTANTS
Architect | EDI International, Inc. |
Civil Engineer | Terra Associates, Inc. |
Structural Engineer | Xxxxxxx Structural Engineers, L.L.C. |
MEP Engineering | HGE Consulting, Inc. |
Landscape Architect | Xxxxxx & Xxxxxxxxxx, X.X. |
Interior Designer | Xxxxx Xxxxxxx Interiors, Inc. |
1 |
EXHIBIT C
PLANS AND SPECIFICATIONS
DRAWING NUMBER | DRAWING TITLE | 50% CONSTRUCTION DOCUMENTS | ||
GENERAL: | ||||
G000 | Cover Sheet | 6/23/2014 | ||
G001 | Sheet Index | 6/23/2014' | ||
G002 | Tabulation&, Symbols and Abbreviations | 6/23/2014 | ||
G003 | Code Analysis | 6/23/2014 | ||
G003b | Area Analysis | 6/23/2014 | ||
G006 | Transparency Ca1cu1ations | 6/23/2014' | ||
G010 | Life Safety Plan • BF2 Sub-Basement Floor | 6/23/2014 | ||
G011 | Life Safety Plan • BF1 Basement Floor | 6/23/2014 | ||
G012 | Life Safety Plan • GF Ground Floor | 6/23/2014' | ||
G013 | Life Safety Plan • 2F Second Floor | 6/23/2014 | ||
G014 | Life Safety Plan ·3F Third Floor | 6/23/2014 | ||
G015 | Typical Life safety Plan | 6/23/2014' | ||
G021 | Accessible Route • GF Ground Floor | 6/23/2014 | ||
G024a | Accessibility Summary TAS | 6/23/2014 | ||
G024b | Accessibility Summary TAS | 6/23/2014' | ||
G024c | Accessibility Summary TAS:. | 6/23/2014 | ||
G025 | Accessibility Summary FHA | 6/23/2014 | ||
G031 | Assemblies | 6/23/2014' | ||
G032 | Assemblies | 6/23/2014 | ||
G033 | Assemblies | 6/23/2014 | ||
X000 | 0xx Xxxxx Plan • Hose Layout | 6/23/2014' | ||
CIVIL | ||||
C1 | Cover Sheet | 6/23/2014' | ||
C2 | General Notes | 6/23/2014 | ||
C3 | Existing Site Conditions | 6/23/2014 | ||
C4 | Site Demolition Plan | 6/23/2014' | ||
C5 | Dimensioned Site Plan | 6/23/2014 | ||
C6 | Site Grading Plan | 6/23/2014 | ||
C7 | Private Water and Sanitary Sewer Plan | 6/23/2014' | ||
C8 | Site Drainage Plan/Drainage Area Map | 6/23/2014 | ||
C9 | Pervious/Impervious Drainage Calcs | 6/23/2014 | ||
C10 | Site Paving Plan | 6/23/2014' | ||
C11 | Storm Water Pollution Prevention Plan | 6/23/2014 | ||
C12 | Storm Water Pollution Prevention Plan Details | 6/23/2014 | ||
C13 | Site Utility Details | 6/23/2014' | ||
C14 | Site Construction Details | 6/23/2014 | ||
LANDSCAPE: | ||||
L1.01 | Materials Plan | 6/23/2014 | ||
L1.02 | Materials Plan | 6/23/2014 | ||
L1.03 | Materials Plan | 6/23/2014' | ||
L2.01 | Not Issued | 6/23/2014 | ||
L2.02 | Not Issued | 6/23/2014 | ||
L2.03 | Not Issued | 6/23/2014' | ||
L3.01 | Construction Details | 6/23/2014 | ||
L3.02 | Construction Details | 6/23/2014 | ||
L3.04 | Construction Details | 6/23/2014' | ||
L4.01 | Grading Plan | 6/23/2014 | ||
L4.02 | Grading Plan | 6/23/2014 | ||
L4.03 | Grading Plan | 6/23/2014 | ||
L5.00 | Not Issued | 6/23/2014' | ||
L5.01 | Planting Plan | 6/23/2014 | ||
L5.02 | Planting Plan | 6/23/2014 | ||
L5.03 | Planting Plan | 6/23/2014' | ||
L6.01 | Irrigation Plan | 6/23/2014 | ||
L6.02 | Irrigation Plan | 6/23/2014 | ||
L6.03 | Irrigation Plan | 6/23/2014' | ||
ARCHITECTURAL: | ||||
A010 | Architectural Site Plan | 6/23/2014 | ||
A100 | Building Plan ·BF2 | 6/23/2014 | ||
X000 | Xxxxxxxx Xxxxx .XX0 | 6/23/2014' | ||
A102 | Building Plans ·GF Xxxxxx Xxxxx | 0/00/0000 | ||
X000 | Xxxxxxxx Xxxxx ·0X Second Floor | 6/23/2014 | ||
X000 | Xxxxxxxx Xxxxx - 0X Xxxxx Xxxxx | 6/23/2014' | ||
A105 | Building Plans - 4F-6F Fourth thru Sixth Floors | 6/23/2014 | ||
X000 | Xxxxxxxx Xxxxx ·0X Seventh Floor | 6/23/2014 | ||
A107 | Building Plans. MF Mezzanine Floor | 6/23/2014' | ||
A108 | Upper Roof Plan | 6/23/2014 | ||
A120 | Enlarged BF Floor Plan | 6/23/2014 |
A121a | Enlarged GF Floor Plan | 6/23/2014 | ||
A121b | Enlarged GF Floor Plan | 6/23/2014' | ||
A121c | Enlarged GF Floor Plan | 6/23/2014 | ||
A122a | Enlarged 2F Floor Plan | 6/23/2014 | ||
A122b | Enlarged 2F Floor Plan | 6/23/2014' | ||
A123 | Enlarged 3F Floor Plan | 6/23/2014 | ||
A124 | Enlarged 4F-7F Floor Plan | 6/23/2014 | ||
A201 | Building Elevation | 6/23/2014' | ||
A202 | Building Elevation | 6/23/2014 | ||
A301 | Building Sections | 6/23/2014 | ||
A311 | Wall Sections | 6/23/2014 | ||
A312 | Wall Sections | 6/23/2014' | ||
A321a | Stair 1-6 and Trash Plans | 6/23/2014 | ||
A321b | Stair 1-4 and Trash Section• | 6/23/2014 | ||
A322a | Stair 3-4 Plans | 6/23/2014' | ||
A322b | Stair 3-4 Sections | 6/23/2014 | ||
A323a. | Stair 2·5 Plan | 6/23/2014 | ||
A323b | Stair 2-5 Sections | 6/23/2014' | ||
A324 | Elevation 1 | 6/23/2014 | ||
A325 | Elevation 2-3 | 6/23/2014 | ||
A326 | Elevation 4 | 6/23/2014 | ||
A402 | Unit E2 | 6/23/2014' | ||
A403 | Unit Al | 6/23/2014 | ||
A404 | Unit A2 | 6/23/2014 | ||
A405 | Unit A3-A4 | 6/23/2014' | ||
A406 | Unit A5 | 6/23/2014 | ||
A406a | Unit A5a | 6/23/2014 | ||
A406b | Unit A5b | 6/23/2014' | ||
A407 | Unit AS | 6/23/2014 | ||
A408 | Unit A7 | 6/23/2014 | ||
A408a | Unit A7a | 6/23/2014 | ||
A408b | Unit A7b | 6/23/2014' | ||
A409 | Unit AB | 6/23/2014 | ||
A410 | Unit A9 | 6/23/2014 | ||
A411 | Unit A10 | 6/23/2014' | ||
A412a | Unit A5M | 6/23/2014 | ||
A412b | Unit A5M | 6/23/2014 | ||
A413a | Unit ABM | 6/23/2014' | ||
A413b | Unit ABM | 6/23/2014 | ||
A414 | Unit B1 | 6/23/2014 | ||
A415 | Unit B2 | 6/23/2014 | ||
A418 | Unit B3 | 6/23/2014' | ||
A417 | Unit B4 | 6/23/2014 | ||
A418 | Unit B5 | 6/23/2014 | ||
A418a | Unit B5A | 6/23/2014' | ||
A419a | Unit B3M | 6/23/2014 | ||
A419b | Unit B3M | 6/23/2014 | ||
A420a | Unit B5M | 6/23/2014' | ||
A420b | Unit B5M | 6/23/2014 | ||
A501 | Exterior Details | 6/23/2014 | ||
A513 | Flashing Details | 6/23/2014 | ||
A521 | Roof Details | 6/23/2014' | ||
A522 | Parapet Details | 6/23/2014 | ||
A523 | Pool Deck Details | 6/23/2014 | ||
A531 | Stair Details | 6/23/2014' | ||
A552 | Screen Wall Details | 6/23/2014 | ||
A561 | Door Details | 6/23/2014 | ||
A562 | Door Details | 6/23/2014' | ||
A571 | Window Details | 6/23/2014 | ||
A572 | Window Details | 6/23/2014 | ||
A601 | Door Schedule | 6/23/2014 | ||
A602 | Door Details | 6/23/2014' | ||
A611 | Window Schedule | 6/23/2014 | ||
A612 | Window Schedule | 6/23/2014 | ||
STRUCTURAL: | ||||
S0-1A | Cover Sheet and Structural Specifications | 6/23/2014 | ||
S0-1B | Structural Specifications | 6/23/2014' | ||
S0-2A | Concrete Standards | 6/23/2014 | ||
S0-2B | Concrete Standards | 6/23/2014 | ||
S0-3B | Concrete Standards | 6/23/2014 | ||
S0-3A | Post Tensioned Standards | 6/23/2014' | ||
S0-3B | Post Tensioned Standards | 6/23/2014 | ||
S0-4 | Masonry Standards | 6/23/2014 | ||
S0-5B | Light Gauge Steel Standards | 6/23/2014' | ||
SS1-0 | Basement Level Shoring Plan | 6/23/2014 | ||
SS1-1 | Shoring Design and Details | 6/23/2014 | ||
S1-B2 | Foundation Plan Basement Level B2 | 6/23/2014' | ||
S1-B1 | Foundation/Framing Plan Basement Level B1 | 6/23/2014 | ||
S1-1 | Foundation/Framing Plan Ground Floor | 6/23/2014 | ||
S1-2 | Framing Plan 2nd Floor (Podium) | 6/23/2014' |
S1-3 | Framing Plan 3rd Floor | 6/23/2014 | ||
S1-4 | Framing Plan 4th-6th Floors | 6/23/2014 | ||
S1-5 | Framing Plan 7th Floor | 6/23/2014 | ||
S1-6 | Framing Plan Mezz and Roof Level | 6/23/2014' | ||
S1-7 | Framing Plan Mezz Roof | 6/23/2014 | ||
S2-1 | Basement Wall Sections & Details | 6/23/2014 | ||
S3-1 | Framing Sections & Details | 6/23/2014' | ||
S4-1 | Column Schedule | 6/23/2014 | ||
S5-1 | Shearwall Schedule | 6/23/2014 | ||
S5-2 | Shearwall Schedule | 6/23/2014' | ||
S5-3 | Shearwall Schedule | 6/23/2014 | ||
M.E.P: | ||||
MEP0.1 | Title Sheet/Sheet Index/General Notes | 6/23/2014 | ||
MEP0.2 | Energy Compliance Commercial | 6/23/2014' | ||
MEP0.3 | Energy Compliance Commercial | 6/23/2014 | ||
MEP0.4 | Energy Compliance Commercial | 6/23/2014 | ||
MEP0.5 | MEP Details | 6/23/2014 | ||
MEP0.6 | MEP Details | 6/23/2014' | ||
MECHANICAL: | ||||
M1.1 | Mechanical Site Plan | 6/23/2014 | ||
M2.1 | Mechanical Unit Plans | 6/23/2014' | ||
M2.2 | Mechanical Unit Plans | 6/23/2014 | ||
M2.3 | Mechanical Unit Plans | 6/23/2014 | ||
M2.4 | Mechanical Unit Plans | 6/23/2014' | ||
M3.1 | Mechanical Lobby Plans | 6/23/2014 | ||
M3.2 | Mechanical Clubhouse, Fitness & Skylounge Plans | 6/23/2014 | ||
M4.1 | Mechanical Building “A” Basement 2 Area A | 6/23/2014' | ||
M4.2 | Mechanical Building “B” Basement 2 Area B | 6/23/2014 | ||
M4.3 | Mechanical Building “A” Basement 1Area A | 6/23/2014 | ||
M4.4 | Mechanical Building “B” Basement 1 Area B | 6/23/2014' | ||
M4.5 | Mechanical Building “A” First Floor Area A | 6/23/2014 | ||
M4.6 | Mechanical Building “B” First Floor Area B | 6/23/2014 | ||
M4.7 | Mechanical Building “A” Second Floor Area A | 6/23/2014 | ||
M4.8 | Mechanical Building “B” Second Floor Area B | 6/23/2014' | ||
M4.9 | Mechanical Building “A” Third Floor Area A | 6/23/2014 | ||
M4.10 | Mechanical Building “B” Third Floor Area B | 6/23/2014 | ||
M4.11 | Mechanical Building “A” Fourth-Sixth Floor Area A | 6/23/2014' | ||
M4.12 | Mechanical Building “B” Fourth-Sixth Floor Area B | 6/23/2014 | ||
M4.13 | Mechanical Building “A” Seventh Floor Area A | 6/23/2014 | ||
M4.14 | Mechanical Building “B” Seventh Floor Area B | 6/23/2014' | ||
M4.15 | Mechanical Building “A” Mezzanine Floor Area A | 6/23/2014 | ||
M4.16 | Mechanical Building “B” Mezzanine Floor Area B | 6/23/2014 | ||
M4.17 | Mechanical Building “A” Roof Area A | 6/23/2014' | ||
M4.18 | Mechanical Building “B” Roof Area B | 6/23/2014 | ||
ELECTRICAL: | ||||
E1.1 | Electrical Site Plan | 6/23/2014' | ||
E2.1 | Electrical Unit Plans | 6/23/2014 | ||
E2.2 | Electrical Unit Plans | 6/23/2014 | ||
E2.3 | Electrical Unit Plans | 6/23/2014' | ||
E2.4 | Electrical Unit Pl1n1 | 6/23/2014 | ||
E3.1.1 | Electrical Lobby Lighting Plan | 6/23/2014 | ||
E3.1.2 | Electrical Lobby Power Plans | 6/23/2014' | ||
E3.2.1 | Electrical Clubhouse, Fitness & Skylounge Lighting Plan | 6/23/2014 | ||
E3.2.2 | Electrical Clubhouse, Fitness & Skylounge Power Plans | 6/23/2014 | ||
E4.1 | Electrical Building “A” Basement 2 Area A | 6/23/2014' | ||
E4.2 | Electrical Building “B” Basement 2 Area B | 6/23/2014 | ||
E4.3 | Electrical Building “A” Basement 1Area A | 6/23/2014 | ||
E4.4 | Electrical Building “B” Basement 1 Area B | 6/23/2014 | ||
E4.5 | Electrical Building “A” First Floor Area A | 6/23/2014' | ||
E4.6 | Electrical Building “B” First Floor Area B | 6/23/2014 | ||
E4.7 | Electrical Building “A” Second Floor Area A | 6/23/2014 | ||
E4.8 | Electrical Building “B” Second Floor Area B | 6/23/2014' | ||
E4.9 | Electrical Building “A” Third Floor Area A | 6/23/2014 | ||
E4.10 | Electrical Building “B” Third Floor Area B | 6/23/2014 | ||
E4- 11 | Electrical Building “A” Fourth-Sixth Floor Area A | 6/23/2014' | ||
E4.12 | Electrical Building “B” Fourth-Sixth Floor Area B | 6/23/2014 | ||
E4.13 | Electrical Building “A” Seventh Floor Area A | 6/23/2014 | ||
E4.14 | Electrical Building “B” Seventh Floor Area B | 6/23/2014' | ||
E4.15 | Electrical Building “A” Mezzanine Floor Area A | 6/23/2014 | ||
E4.16 | Electrical Building “B” Mezzanine Floor Area B | 6/23/2014 | ||
E4.17 | Electrical Building “A” Roof Area A | 6/23/2014' | ||
E4.18 | Electrical Building “B” Roof Area B | 6/23/2014 | ||
E5.1 | Electrical Calculations | 6/23/2014 | ||
E5.2 | Electrical Calculations | 6/23/2014 | ||
E5.3 | Electrical Calculations | 6/23/2014' | ||
E5.4 | Electrical Calculations | 6/23/2014 |
PLUMBING: | ||||
P1.1 | Plumbing Site Plan | 6/23/2014 | ||
P2.1 | Plumbing Unit Plana | 6/23/2014 | ||
P2.2 | Plumbing Unit Plans | 6/23/2014' | ||
P2.3 | Plumbing Unit Plans | 6/23/2014 | ||
P2.4 | Plumbing Unit Plans | 6/23/2014 | ||
P3.1 | Plumbing Lobby Plans | 6/23/2014' | ||
P3.2 | Plumbing Clubhouse, Fitness & Skylounge Plans | 6/23/2014 | ||
P4.1 | Plumbing Building “A” Basement 2 Area A | 6/23/2014' | ||
P4.2 | Plumbing Building “B” Basement 2 Area B | 6/23/2014 | ||
P4.3 | Plumbing Building “A” Basement 1 Area A | 6/23/2014 | ||
P4.4 | Plumbing Building “B” Basement 1 Area B | 6/23/2014' | ||
P4.5 | Plumbing Building “A” Fire Floor Area A | 6/23/2014 | ||
P4.6 | Plumbing Building “B” First Floor Area B | 6/23/2014 | ||
P4.7 | Plumbing Building “A” Second Floor Area A | 6/23/2014' | ||
P4.8 | Plumbing Building “B” Second Floor Area B | 6/23/2014 | ||
P4.9 | Plumbing Building “A” Third Floor Area A | 6/23/2014 | ||
P4.10 | Plumbing Building “B” Third Floor Area1 B | 6/23/2014' | ||
P4.11 | Plumbing Building “A” Fourth-Sixth Floor Area A | 6/23/2014 | ||
P4.12 | Plumbing Building “B” Fourth-Sixth Floor Area B | 6/23/2014 | ||
P4.13 | Plumbing Building “A” Seventh Floor Area A | 6/23/2014 | ||
P4.14 | Plumbing Building “B” Seventh Floor Area B | 6/23/2014' | ||
P4.15 | Plumbing Building “A” Mezzanine Floor Area A | 6/23/2014 | ||
P4.16 | Plumbing Building “B” Mezzanine Floor Area B | 6/23/2014 | ||
P4.17 | Plumbing Building “A” Roof Area A | 6/23/2014' | ||
P4.18 | Plumbing Building “B” Roof Area B | 6/23/2014 | ||
P5.1 | Plumbing Risers | 6/23/2014 | ||
P5.2 | Plumbing Risers | 6/23/2014' | ||
P5.3 | Plumbing Risers | 6/23/2014 | ||
P5.4 | Plumbing Risers | 6/23/2014 | ||
INTERIOR DESIGN: | ||||
1D0.00 | COVER SHEET | 6/23/2014' | ||
1D1.01 | LEASING - INTERIOR PLAN | 6/23/2014 | ||
1D1.02 | OUTDOOR LIVING - INTERIOR PLAN | 6/23/2014 | ||
1D1.03 | AMENITIES XXXXX 0 -INTERIOR PLAN | 6/23/2014' | ||
1D1.04 | FITNESS LEVEL 3 INTERIOR PLAN | 6/23/2014 | ||
1D1.05 | SKY LOUNGE LEVEL 5 - INTERIOR PLAN | 6/23/2014 | ||
1D2.01 | LEASING·DECORATIVE POWER PLAN | 6/23/2014' | ||
1D2 02 | OUTDOOR LIVING ·DECORATIVE POWER PLAN | 6/23/2014 | ||
1D2.03 | AMENITIES XXXXX 0 ·DECORATIVE POWER PLAN | 6/23/2014 | ||
1D2.04 | FITNESS XXXXX 0 ·DECORATIVE POWER PLAN | 6/23/2014' | ||
1D2.05 | SKY LOUNGE XXXXX 0 ·DECORATIVE POWER PLAN | 6/23/2014 | ||
1D3.01 | LEASING ·REFLECTED CEILING PLAN | 6/23/2014 | ||
1D3.02 | OUTDOOR LIVING • REFLECTBO CEILING PLAN | 6/23/2014 | ||
1D3.04 | FITNESS XXXXX 0 • REFLECTED CEILING PLAN | 6/23/2014' | ||
1D3.05 | SKY LOUNGE LEVEL 5·REFLECTED CBLING PLAN | 6/23/2014 | ||
1D4.01 | LEASING • FINISH PLAN | 6/23/2014 | ||
1D4.03 | AMENITIES XXXXX 0 • FINISH PLAN | 6/23/2014' | ||
1D4.04 | FITNESS XXXXX 0 • FINISH PLAN | 6/23/2014 | ||
1D4.05 | SKY LOUNGE XXXXX 0 • FINISH PLAN | 6/23/2014 | ||
1D6.01 | LEASING • FURNITURE PLAN | 6/23/2014' | ||
1D6.02 | OUTDOOR LIVING • FURNITURE PLAN | 6/23/2014 | ||
1D5.03 | AMENITIES XXXXX 0 • FURNTURE PLAN | 6/23/2014 | ||
1D5.04 | FITNESS LEVEL 3 FURNITURE PLAN | 6/23/2014' | ||
1D5.05 | SKY LOUNGE XXXXX 0 .FURNITURE PLAN | 6/23/2014 | ||
1D6.01 | ENLARGED PLANS AND ELEVATIONS | 6/23/2014 | ||
1D6.02 | ENLARGED PLANS AND ELEVATIONS | 6/23/2014' | ||
1D7.01 | INTERIOR ELEVATIONS | 6/23/2014 | ||
1D7.02 | INTERIOR ELEVATIONS | 6/23/2014 | ||
1D7.03 | INTERIOR ELEVATIONS | 6/23/2014 | ||
1D7.04 | INTERIOR ELEVATIONS | 6/23/2014' | ||
1D7.05 | INTERIOR B.EVATIONS | 6/23/2014 | ||
1D8.01 | MILLWORK DETAILS | 6/23/2014' | ||
1D9.01 | LIGHTING SCHEDULE | 6/23/2014 | ||
1D9.02 | FINISH LEGEND | 6/23/2014' | ||
1D9.03 | APPLIANCE. PLUMEING & HARDWARE LEGEND | 6/23/2014 | ||
1D9.04 | INTERIOR DOOR & OPENNG SCHEDULE | 6/23/2014 |
EXHIBIT D
TOTAL PROJECT BUDGET
1 |
Sources and Uses
Uses
Cost Item | Total | Per Unit | ||||||
Construction Hard Costs | $ | 50,094,973 | $ | 147,338 | ||||
General Contractor (GC) Fee | $ | 2,504,749 | $ | 7,367 | ||||
Land | $ | 19,349,400 | $ | 56,910 | ||||
Taxes | $ | 425,000 | $ | 1,250 | ||||
Legal | $ | 315,000 | $ | 926 | ||||
Closing Costs | $ | 175,000 | $ | 515 | ||||
Financing | $ | 427,500 | $ | 1,257 | ||||
Investment Banking Fee | $ | 425,000 | $ | 1,250 | ||||
Architect | $ | 1,085,000 | $ | 3,191 | ||||
Engineering & Surveying | $ | 125,000 | $ | 368 | ||||
Marketing | $ | 300,000 | $ | 882 | ||||
Construction Interest | $ | 2,619,645 | $ | 7,705 | ||||
Bluerock Fee | $ | 50,000 | $ | 147 | ||||
Preleasing | $ | 300,000 | $ | 882 | ||||
Leaseup Operating Deficit | $ | 597,661 | $ | 1,758 | ||||
Overhead | $ | 2,382,568 | $ | 7,008 | ||||
Soft Cost Contingency | $ | 623,504 | $ | 1,834 | ||||
Other | $ | 0 | $ | 0 | ||||
Total Project Cost | $ | 81,800,000 | $ | 240,588 |
Sources
Total | Per Unit | |||||||
BBVA Compass Construction Loan | $ | 57,000,000 | $ | 167,647 | ||||
Bluerock Equity | $ | 22,320,000 | $ | 65,647 | ||||
TCR Equity | $ | 2,480,000 | $ | 7,294 | ||||
Total | $ | 81,800,000 | $ | 240,588 |
EXHIBIT E
PROJECT DEVELOPMENT SCHEDULE
July 1, 2014 | Closing Leasebacks |
September 18, 2014 | expire |
November 1, 2014 | Construction Start Date |
September 9, 2016 | Delivery of First Units |
May 22, 2017 | Substantial Completion |
August 20, 2017 | Final Completion |
EXHIBIT F
SAMPLE MONTHLY DRAW
PACKAGE
(see attached)
REQUEST FOR ADVANCE
Houston, TX
Date:
Compass Bank, National Association
Street Address
City, State
(the “Lender”)
Re: Request for Advance to Pay Costs under Construction Loan Agreement dated , between "Borrower”) and the Lender
Gentlemen:
The Borrower herby requests an advance under the captioned Construction Le Agreement to pay costs heretofore incurred in connection with construction of the Improvements as contemplated therein, in the amount of ____________________
The costs lo be paid from the proceeds of such advance are for the items listed on the continuation page(s) attached. To the extent that the advance will be used to pay Contractor(s), an Application and Certificate for Payment form for each Contractor to be paid is also attached.
The status of costs of the Improvements is as follows: | ||
Original projected costs | ||
Net changes to date | ||
Current projection of costs | ||
Total certified to date, including amount of this certificate | ||
Unpaid balance of projected costs (amount yet to be certified) |
The Borrower hereby certifies and warrants that (a) the amount above request has actually been incurred in connection with construction of said Improvements and that previous advance has been made under said Construction Loan Agreement to pay any of the costs for which the Borrower hereby requests this advance, and (b) the representation and warranties made In each of the Credit Documents described in the Construction Loan Agreement are true and correct in all material respects on and as of the time of delivery hereof, with the same force and effect as If made on and as of the time of delivery hereof.
OWNER SIGNATURE BLOCK
By: | Maple Multi-Family Development X.XX., a Texas limited liability company, | ||
its general partner | |||
By: | |||
Name: | Xxxx X. Xxx | ||
Title: | Vice President |
APPLICATION AND CERTIFICATE FOR PAYMENT | AIA DOCUMENT G702 | PAGE 1 OF 1 | |
TO OWNER | PROJECT: | APPLICATION NO: | Distribution to: |
Alexan Heights | PERIOD TO: | x Owner | |
PROJECT NOS: | |||
FROM CONTRACTOR | Alexan City Center | x Architect | |
Maple Multi-Family TX Contractor, L.L.C., a | |||
Texas limited liability company | EDI International, Inc | ||
x Contractor | |||
CONTRACT FOR: | |||
CONTRACTOR'S APPLICATION FOR PAYMENT | |
Application is made for payment, as shown below, in connection with the Contract, | |
Continuation Sheet, AIA Document G703, is attached. |
1. | ORIGINAL CONTRACT SUM | $________________________ | |
2. | Net change by Change Orders | $________________________ | |
3. | CONTRACT SUM TO DATE (Line 1 & 2) | $________________________ | |
4. | TOTAL COMPLETED & STORED TO DATE: | $________________________ | |
5. | RETAINAGE: | ||
a. 10% of Completed Work_______________ | |||
(Columns D & E on G703) | |||
b. ______ % of Stored Materi 0.0 | |||
(Column F on G703) | |||
Total Retainage (Line 5a + 5b or | $________________________ | ||
Total in Column I of G703) | |||
6. | TOTAL EARNED LESS RETAINAGE | $________________________ | |
(Line 4 less Line 5 Total) | |||
7. | LESS PREVIOUS CERTIFICATES FOR PAYMENT | $________________________ | |
8. | (Less 6 from prior Certificate) | ||
8 | CURRENT PAYMENT DUE | $________________________ | |
9. | BALANCE TO FINISH. INCLUDING RETAINAGE | ||
(Line 3 less Line 6) $ 0.00 |
CHANGE ORDER SUMMARY | ADDITIONS | DEDUCTIONS | ||||||
Total changes approved in | 0.00 | 0.00 | ||||||
previous months by Owner | ||||||||
Total approved this Month | 0.00 | 0.00 | ||||||
TOTAL | 0.00 | 0.00 | ||||||
NET CHANGES by Change Order | 0.00 |
The undersigned Contractor certifies that to the best of the Contractor's knowledge, information and belief the Work covered by this Application for Payment has been completed in substantial accordance with the Contract Documents, that all amounts have been paid by the Contractor for Work for which previous Certificates for Payment were issued and payments received from the Owner, and that current payment shown herein is now due.
CONTRACTOR: | Maple Multi-Family TX Contractor, L.L.C., a Texas limited liability company |
By: | Date: | |||
By: Frend X. Xxxxxxxx. Vice President |
State of: Texas County
of
Subscribed and sworn to before
me this day of
Notary Public |
My Commission expires: |
ARCHITECT'S CERTIFICATE FOR PAYMENT
In accordance with the Contract Documents, based on on-site observation and the data comprising this application, the Architect certifies to the Owner that to the best of the Architects knowledge, information and belief the Work has progressed as indicated, the quality of the Work is in substantial accordance with the Contract Documents, and the Contractor is entitled to payment of the AMOUNT CERTIFIED.
AMOUNT CERTIFIED | $____________________________ |
(Attach explanation if amount certified differs from the amount applied for: Initial all figures on this Application and on the Continuation Sheet that are changed to conform to the amount certified.) ARCHITECT:
By: | Date:______________________ |
This Certificate is not negotiable. THE AMOUNT CERTIFIED is payable only to the Contractor named herein. Issuance, payment, and acceptance of payment are without prejudice to any rights of the Owner or Contractor under this Contract.
This document waives rights unconditionally and states that you have been paid for giving up those rights. It is prohibited for a person to require you to sign this document if you have not been paid the payment amount set forth below.
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
Project Alexan City Center
Job No.
The signer of this document has been paid and has received a progress payment in the sum of $___________ for all labor, services, equipment, or materials furnished to the property or to Maple Multi-Family TX Contractors, L.L.C., a Texas limited liability company (person with whom signer contracted) on the property of ________________________(owner) located at 000 Xxxx xxx Xxxxxxx Xxxx.. Xxxxxxx, Xxxxx 00000 (location) to the following extent: For all service and materials provided during pay application (job description). The signer therefore waives and releases any mechanic's lien right, any right arising from a payment bond that compiles with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the above referenced project to the following extent:
This release covers a progress payment for all labor, services, equipment, or materials furnished to the property or to Maple Multi-Family TX Contractors. L. L.C., a Texas limited liability company as indicated in the attached statement(s) or progress payment request(s), except for unpaid retention, pending modifications and changes, or other items furnished.
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT - PAGE 1
The signer warrants that the signer has already paid or will use the funds received from this progress payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials,. equipment, or services provided for or to the above referenced project in regard to the attached statement(s) or progress payment request(s).
Date: ______________
________________________
(Maple Multi-Family TX Contractor, L.L.C., a Texas limited liability company)
By: | Frend X. Xxxxxxxx | |
Vice President |
STATE OF TEXAS
COUNTY OF ----
This Unconditional Waiver and Release on Progress Payment was acknowledged before me on this ____ day of ___________________, 20_, Frend X. Xxxxxxxx, on behalf of Maple Multi-Family TX Contractor, L.L.C., a Texas limited liability company.
Notary Public - State of______________ | |
My Commission Expires: |
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT - PAGE 2
CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
Project Alexan City Center
Job No._________________
On receipt by the signer of this document of a check from ____ in the sum of $_____________ payable to Maple Multi-Family TX Contractor. L.L.C., a Texas limited liability company and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the property of ____________ located at 000 Xxxx xxx Xxxxxxx Xxxx., Xxxxxxx. Xxxxx 00000 to the following extent: For all service and materials provided during pay application.
This release covers a progress payment for all labor, services, equipment, or materials furnished to the property or to Maple Multi-Family TX Contractor. L.L.C., a Texas limited liability company as indicated in the attached statement(s) or progress payment request(s), except for unpaid retention, pending modifications and changes, or other items furnished.
Before any recipient of this document relies on this document, the recipient should verify evidence of payment to the signer.
The signer warrants that the signer has already paid or will use the funds received from this progress payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project in regard to the attached statement(s) or progress payment request(s).
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT - PAGE 1
Date: _____
_________________________________
(Maple Multi-Family TX Contractor, L.L.C., a Texas limited liability company)
By: | Frend X. Xxxxxxxx | |
Vice President |
STATE OF TEXAS
COUNTY OF Xxxxxx
This Conditional Waiver and Release on Progress Payment was acknowledged before me on this ______________day of______________________, 20_, by Frend X. Xxxxxxxx, on behalf of Maple Multi-Family TX Contractor, l. L.C.. a Texas limited liability company.
Notary Public - State of _________________ | |
My Commission Expires: |
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT - PAGE 2
EXHIBIT G
INSURANCE REQUIREMENTS
Developer's Required Insurance:
(1) | Workers' Compensation: |
Workers' Compensation Insurance as required by state statutes and laws where the Property is located or applicable Federal laws.
(2) | Employers Liability: |
Employers Liability coverage with limits no less than: (i) Bodily Injury by Accident: $1,000,000 each Accident; (ii) Bodily Injury by Disease: $1,000,000 each employee; (iii) Bodily Injury by Disease: $1,000,000 policy limit.
(3) | Automobile Liability: |
Owned (if any), non-owned and hired automobile liability coverage with limits no less than $1,000,000 combined single limit, each accident, covering losses due to the insured's liability for bodily injury or property damage.
(4) | Commercial General Liability: |
Policies of Commercial General Liability insurance (ISO Form CG 0001-10/01 or equivalent) written on an occurrence basis against claims for bodily injury, property damage (including loss of use thereof) and personal injury with limits of liability of at least: (i) $1,000,000 combined single limit each occurrence for bodily injury and/or property damage, (ii) $1,000,000 for Personal and Advertising Injury, (iii) $2,000,000 General Aggregate Limit (applying per project), and (iv) $2,000,000 Products and Completed Operations aggregate. Such COL policy shall have no deductible or self-insured retention greater than $25,000. Such deductible or self-insured retention shall be the responsibility of the Developer. Modified occurrence and claims-made policies are not allowed.
The Owner, its Members and Managers, and their respective Indemnified Parties shall be included as additional insureds for the operations or work performed by or on behalf of Developer for the Owner under this Agreement. Such liability coverage shall be primary and non-contributory as to any other liability insurance available to the Owner and the additional insureds. Additional insured coverage shall be provided to the fullest extent allowed under law. Developer's liability insurance shall be primary without right of contribution by any other insurance or self insurance maintained by or available to Owner, its Members and Managers or their affiliates.
The Developer's liability policy shall provide coverage for premises, operations, products and completed operations, personal and advertising injury, fire damage legal liability, cross- liability or severability of interests and contractual liability (also known as broad form contractual liability) for the assumption of tort liability in business contracts.
E-1 |
Such liability coverage shall not exclude coverage for the development and construction of residential multi-family apartment units, mixed commercial/residential apartment units, or not-for-sale townhomes.
(5) | Excess or Umbrella Liability: |
Excess or Umbrella Liability Coverage excess of and following form of: (i) the Commercial General Liability coverage specified in paragraph (4) above, in the amount of at least $50,000,000 per occurrence and (ii) the Employers Liability and Automobile Liability coverage specified in paragraphs (2) and (3) above, in amount of at least $50,000,000 per occurrence . . In accordance with the requirements of the Commercial General Liability section above, and to the fullest extent allowed under law, the Owner, its Members and Managers and their respective Indemnified Parties shall be included as additional insureds. Such Excess or Umbrella Liability Coverage shall be primary and non contributory as to any other liability insurance available to the Owner and the additional insureds.
(6) | Completed Operations: |
For the Commercial General Liability insurance required herein, including Umbrella and Excess liability insurance, completed operations coverage shall be carried for at least 10 years after the Completion Date or until the expiration of the statute of limitations or statute of repose for patent and latent construction defect claims, whichever is more. The insurance obligation contained herein shall continue as specified regardless of the extinguishment of other rights or duties under this Agreement by completion, termination or any other manner. This insurance shall be primary and non-contributory as to any other liability insurance available to Owner or its Members and Managers. Such completed operations coverage shall not exclude coverage for the development and construction of residential multi-family apartment units, mixed commercial/residential apartment units, or not-for-sale townhomes.
Cost of Xxxx xxxxx:
Developer will be responsible for the cost of the Workers' Compensation and Employer Liability insurance and, unless coverage is provided through policies providing joint coverage to Owner and Developer, as provided below, Automobile Liability insurance. Owner will reimburse Developer for the cost of the Commercial General Liability, Excess or Umbrella Liability and Completed Operations insurance (unless coverage is provided through policies providing joint coverage to Owner and Developer, as provided below).
The TCR Member (acting under the LLC Agreement) may arrange all or any or the insurance required of Developer through policies providing joint coverage for Owner and Developer in connection with the Project. If the TCR Member does so, Developer will not be required to maintain separate coverage for the risks so insure
E-2 |