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EXHIBIT 99.11
DEVELOPMENT AGREEMENT
(Hamilton, Ohio)
This DEVELOPMENT AGREEMENT (the "Agreement") is made as of this 1st day
of December, 1998, by and between SUNRISE DEVELOPMENT, INC., a Virginia
corporation ("Developer") KARRINGTON HEALTH, INC. ("Owner").
WHEREAS, Owner desires to own and develop an assisted living project
(the "Facility") to be located in Hamilton, Ohio, as more particularly described
on Exhibit A (the "Site");
WHEREAS, Owner, in anticipation of its pending merger with Sunrise
Assisted Living, Inc., the parent of Developer, has determined it is in Owner's
best interest to engage Developer in the development of Owner's projects
currently under construction in order to ensure an orderly transition upon the
consummation of the merger; and
WHEREAS, Owner wishes to engage Developer for certain development and
construction services with respect to the Facility and Developer desires to
provide such services, pursuant to the terms set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
APPOINTMENT OF DEVELOPER AND TERM
1.01 Appointment of Developer. Owner hereby appoints Developer and
Developer hereby accepts appointment, subject to the terms and conditions of
this Agreement, as development agent to provide certain development, design and
construction management services with respect to the Facility.
1.02 Term. This Agreement shall begin upon execution by the parties and
continue until the date that the Facility is issued a certificate of occupancy
(the "Term").
ARTICLE II
DUTIES AND RIGHTS OF DEVELOPER
2.01 Project Budget Services. Developer shall provide budgeting
services as set forth in this Section 2.01. Developer shall prepare a pro forma
budget for the development and construction of the Facility, setting forth all
project costs, including all development, marketing, management, guaranty fees
and other costs to be paid to Developer and any affiliates thereof. The pro
forma budget shall also include a line item for working capital/operating loss
reserves. The pro forma shall be presented to Owner for Owner's review and
approval, and once approved by Owner (with any revisions thereto accepted in
writing by Developer), such pro forma shall constitute the
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"Development Budget" for all purposes hereof. The Development Budget shall be
subject to the review and approval of the construction lender for the Facility.
If the construction lender requires any revisions to the Development Budget,
Owner and Developer shall cooperate in making such revisions and shall mutually
approve the modification required.
2.02 Design and Construction Management Services. Developer shall
provide the following construction management services to Owner:
a. Prepare all construction bid documents, secure bids from the
general contractor, and assist Owner in negotiating the
terms of the construction contract. After Owner has approved
the terms of the construction contract, Developer shall have
the authority to execute the construction contract as agent
for Owner.
b. Develop and review critical path schedules and updates and
assist the general contractor in developing the project
schedule and updates.
c. Discuss and review with the general contractor its means and
methods of construction.
d. Discuss and review with the general contractor permitting
approval and licensing issues and requirements necessary to
complete and open the Facility, and obtain (or cause the
general contractor to obtain) all required permits.
e. Assist Owner as requested with construction management and
cost control services, including assisting Owner in
obtaining the most favorable prices for construction,
equipment, finishes and furnishings, and making
recommendations to Owner when requested regarding change
orders, extensions of time and increases or decreases in the
contract sum.
f. Assist Owner as requested in monitoring and evaluating
construction progress and make recommendations to the
general contractor and Owner as deemed necessary.
g. Assist in the resolution of critical issues impacting the
progress of work, and monitor architectural supplemental
instructions and requirements for information.
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h. Provide quality control and the early detection of defects
in workmanship.
i. Review punch list items and assist in the close-out of the
project.
j. Coordinate opening date for the Facility with Owner and the
Facility's managing agent (the "Manager").
2.03 Expenses. It is expressly understood that it is Owner's
responsibility to provide any and all funds needed for Developer to perform the
Development, Design and Construction Management Services, as set forth in the
Development Budget. Owner shall also be solely responsible for payment to all
third-parties (i.e. engineers, attorneys and consultants) as set forth in the
Development Budget.
2.04 Reimbursement. Owner shall reimburse Developer for any and all
costs incurred by Developer in connection with the Site prior hereto. Developer
shall attach as Exhibit B hereto a list of such costs incurred to date. Owner
and Developer agree to reconcile such reimbursement of costs thirty (30) days
after the initial reimbursement, and any additional amounts determined to be
owing shall be promptly forwarded to the Developer.
ARTICLE III
DEVELOPER'S COMPENSATION
3.01 Development Fee. For the Design and Construction Management
Services provided pursuant to this Agreement, Developer shall be paid a fee
equal to a total amount of Two Hundred Fifty Thousand Dollars ($250,000.00) (the
"Development Fee"). Fifty Thousand Dollars ($50,00.00) of the Development Fee
shall be due to Developer as of the date of this Agreement for payment of
services performed by Developer at and prior to the date of this Agreement.
Owner acknowledges that Developer has assisted Owner since Owner and Sunrise
Assisted Living, Inc. entered into a Merger Agreement dated October 11, 1998. A
schedule for the periodic payment of the remaining $200,000.00 of the
Development Fee shall be agreed to by Owner and Manager subsequent to the date
of this Agreement, with the final payment of the Development Fee to be due no
later than the issuance of a Certificate of Occupancy for the Facility.
The Development Fee shall constitute full and complete payment to the
Developer, for all guarantees and services furnished or performed by the
Developer, in connection with this Agreement at any time prior to or following
the execution of this Agreement.
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ARTICLE IV
TERMINATION
4.01 Termination Upon Opening. This Agreement shall terminate upon the
opening of the Facility, unless sooner terminated pursuant to the provisions of
this Agreement provided that Owner's obligation to pay the Development Fee shall
survive such termination.
4.02 Termination for Default. In the event that either the Owner or the
Developer is in default under any material term or condition of this Agreement
and fails either to cure or comply with such term or condition or to diligently
pursue such cure within forty-five (45) days after the service of written notice
of default, then the other of them may, at the expiration of such 45-day period
or such longer period as may be reasonably necessary to cure such default,
cancel and terminate this Agreement upon five (5) days' written notice. Upon any
such termination by Developer due to Owner's default (which may include Owner's
failure to proceed with the acquisition of title to the Site), the unpaid
balance of the Development Fee shall be fully due and payable.
4.03 Bankruptcy of Either Party. If either Owner or Developer shall
cease to exist, for any reason, during the term of this Agreement, or in the
event a petition in bankruptcy, arrangement or reorganization is filed by or
against either of them and such petition is not dismissed within sixty (60)
days, or if either or them shall make an assignment for the benefit of creditors
or take advantage of any insolvency law, the other of them may forthwith
terminate this Agreement.
4.04 Suspension of Performance. If development of the Facility
contemplated under this Agreement is suspended for any reason described in
Section 5.04 below, including without limitation any cause beyond the reasonable
control of the parties hereto, then upon written notice by the Owner to the
Developer (the "Notice of Suspension"), the Owner may suspend the Developer's
performance of its obligations under this Agreement for a period of ninety (90)
days. The Owner may terminate such suspension and re-commence development of the
project by written notice to the Developer whereupon the Developer shall
re-commence performing its obligations under this Agreement within thirty (30)
days of receipt of such notice.
4.05 Failure to Obtain Financing. If the closing of the financing has
not occurred by April 1, 1999, then either party may terminate this Agreement
upon ten (10) days written notice to the other party. In the event of such
termination, except for material default by Developer, Owner will immediately
pay to Developer any outstanding Development Fee and shall immediately reimburse
Developer for its direct out-of-pocket expenses on the project.
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ARTICLE V
MISCELLANEOUS PROVISIONS
5.01 Standard of Performance. Developer will devote its best efforts to
the development of the Facility as contemplated by this Agreement and will act
in good faith to cause the completion of the Facility in accordance with the
terms and conditions of this Agreement.
5.02 Proprietary Information. Any and all architectural, structural,
engineering or other construction drawings furnished to Owner with regard to the
Facilities are the property of Developer. Owner shall not use any such drawings
or cause to have any such drawings disseminated to any third party without the
written consent of Developer. Without prejudice to any rights and remedies
otherwise available to Developer, Developer shall be entitled to equitable
relief by way of injunction if Owner breaches this Section 5.02. No failure or
delay by Developer in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder. Owner agrees to indemnify Developer for any
costs and expenses, including legal expenses, Developer may incur in connection
with the enforcement of this Section 5.02.
5.03 Consent. Any consent, approval or other action required or
requested under or in connection with this Agreement shall not unreasonably be
withheld or delayed and any request made or direction given hereunder or in
connection herewith shall be reasonable, it being the intention and expectation
of the Owner and the Developer that neither shall be capricious or arbitrary
under or in connection with this Agreement. Any determination of reasonableness
under this Section shall be made in light of the objectives of the Owner, which
objectives include, without limitation, the development of the Facility as a
first class building and the operation of the Facility as a high quality
assisted living community.
5.04 Force Majeure. With respect to any services to be furnished or
obligations to be performed hereunder, no party shall ever be liable for failure
to furnish or perform the same when prevented from doing so by Acts of God,
contractor delays, strike, lockout or labor unrest, explosion, sabotage,
breakdown, accident, order or regulation of or by any governmental authority, or
failure of supply, or inability despite the exercise of reasonable diligence to
obtain supplies, parts or employees or others necessary to furnish such
services, or because of war, riot, civil commotion or other emergency, or for
any cause beyond its reasonable control; provided, however, that the lack of
financial resources shall never be excused.
5.05 Assignment and Subcontract. Except as specifically provided in
this Agreement, neither Owner nor Developer may assign any of its rights or
delegate any of the obligations specified in this Agreement without the prior
written consent of the other party. Developer may not subcontract any of its
obligations under this Agreement, except
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to its affiliates, without the prior written consent of Owner. Notwithstanding
any such subcontracting permitted or approved hereunder, Developer will remain
primarily liable for the performance of its obligations under this Agreement.
5.06 Benefits of Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors, assigns,
legal representatives and heirs, but nothing contained in this Section shall be
deemed to constitute a consent to any assignment otherwise restricted by this
Agreement.
5.07 Indemnification.
a. Owner and Developer each agree that the other shall be and is
indemnified, exonerated, and held harmless of, from and against any
claim, loss, cost, damage, expense or other liability arising out of
performance under this Agreement, excepting only liability attributable
to negligence, willful misconduct or willful, wanton or reckless
failure by a party, its agents, servants, employees or independent
contractors to perform its or their respective obligations under this
Agreement.
b. A person entitled to indemnification under this Section shall give
notice to the indemnitor of the claim or other circumstances giving
rise to a request for indemnification, promptly after becoming aware of
same. If the indemnitor does not notify the person to be indemnified
that it has assumed the defense of such claim within a fifteen (15) day
period after receipt of the notice of the request for indemnification,
then the person entitled to indemnification may assume the defense of
such claim on behalf and at the expense of the indemnitor. Any
compromise or settlement of any such claim shall be made only with the
prior consent of the indemnitor, provided that such consent shall not
be delayed or unreasonably withheld. If the indemnitor notifies the
person to be indemnified that it has assumed the defense of such claim,
the indemnitor may compromise or settle any claim for which
indemnification is available under this Section, and the party entitled
to indemnification may participate in the defense of such claim with
its own legal counsel at its own expense.
c. In no event shall either party hereunder be liable to the other
for consequential damages, lost profits or punitive damages on account
of a default under this Agreement or otherwise.
5.08 Modification. Except as otherwise provided herein, neither this
Agreement nor any provision hereof can be modified, changed, discharged,
extended or terminated except by an instrument in writing executed by the party
against whom enforcement is sought.
5.09 Waiver. The failure to insist upon strict compliance with any of
the terms, covenants or conditions herein on one or more occasions shall not be
deemed a waiver of
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such terms, covenants or conditions nor shall such failure impose any obligation
to provide notice that strict compliance will be expected in the future, nor
shall nay waiver or relinquishment of any right at any one or more times be
deemed a waiver or relinquishment of such right at any other time or times.
5.10 Notices. All notices, demands, consents, approvals, and requests
given by either party to the other hereunder shall be in writing and shall be
sent by hand, by overnight courier, or by registered or certified mail, return
receipt requested, postage prepaid, to the parties at the following addresses:
Owner: Karrington Health, Inc.
000 Xxx Xxxxxxxxx Xx.
Xxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, President
Copy to: Xxxxxxx Xxxxx, Esquire
Karrington Health, Inc.
000 Xxx Xxxxxxxxx Xx.
Xxxxxxxx, Xxxx 00000
Developer: Sunrise Development, Inc.
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, President
or to such other address and to the attention of such other person as either
party may from time to time designate in writing. Notices shall be effective
upon receipt. Refusal to accept delivery shall constitute receipt.
5.11 Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance is held to be invalid or
unenforceable for any reason, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law, but only to the extent the same
continues to reflect fairly the intent and understanding of the parties
expressed by this Agreement taken as a whole.
5.12 Governing Law. To the maximum extent the parties hereto may
lawfully agree, this Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Virginia without regard to conflict of
laws principles, and shall be enforced in the state and federal courts located
in the Commonwealth of Virginia. Each of the parties to this Agreement submits
to the jurisdiction of the courts of that state and agrees that process may be
served upon it by registered or certified mail addressed as provided in Section
5.10.
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5.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same document.
5.14 Mediation. The parties agree that any disputes arising hereunder
shall be submitted to non-binding mediation in accordance with the rules of the
American Arbitration Association prior to the commencement of litigation by
either party. Any applicable statute of limitation or repose shall be tolled
from the date of filing of the request for mediation with the American
Arbitration Association until ten (10) days after the mediation is concluded.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first above written.
WITNESS/ATTEST: OWNER:
Karrington Health, Inc., an Ohio corporation
/s/ Xxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: President
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DEVELOPER:
Sunrise Development, Inc., a Virginia corporation
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
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EXHIBIT A
DESCRIPTION: Lot #30130
LOCATION: Old Pt. Xxx #00000 xxx Xxx Xx. Xxx. #00000
First Xxxx, North Side,
City of Xxxxxxxx, Xxxxxx County, Ohio
Situated in the first Xxxx, North Side, City of Xxxxxxxx, Xxxxxx County, Ohio
and being part of Lot #28291 as known and designated on the list of lots in said
City of Xxxxxxxx and being further described as follows:
Beginning at a point found by measuring from the Southwest corner of said Lot
#28291, said point being in the North right-of-way line of Washington Boulevard,
along said right-of-way line North 89 12' 15" East 177.00 feet to the true point
of beginning;
thence from the point of beginning thus found leaving said
right-of-way line North 00 47' 45" West, 351.83 feet to a point
in the Southerly extended line of Lot #29705 as known and
designated on the list of lots in said City of Xxxxxxxx;
thence along said line North 88 48' 13" East, 491.35 feet to a pint in
the Westerly right-of-way line of Xxxxxxxxx Drive;
thence along said right-of-way line South 01 11' 47" East, 106.00
feet;
thence along a 570.00 foot radius curve to the right an arc length of
169.42 feet, a chord bearing of South 07 19' 07" West, a chord
distance of 168.79 feet;
thence South 15 48' 48" West, 114.82 feet;
thence continuing along said Westerly right-of-way line along a 15.00
foot radius curve to the right an arc length of 23.01 feet, a
chord bearing of South 59 45' 35" West, a chord distance for
20.82 feet to a point in the aforementioned North right-of-way
line of Washington Boulevard
thence leaving said Westerly right-of way line along said North
right-of-way line along a 1195.92 foot radius curve to the left
an arc length 302.68 feet, a chord bearing of North 83 32' 40"
West, a chord distance of 301.87 feet;
thence continuing along said North right-of-way line South 89 12' 15"
West, 117.85 feet to the point of beginning containing 4,000
acres of land and being subject to all easements and
rights-of-way of record.
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