EXHIBIT "10.11"
AGREEMENT
THIS AGREEMENT (the "Agreement") is made pursuant to the terms and
conditions of that certain Real Estate Purchase Contract (herein "REPC") dated
October 20, 1997, and entered into by and between OGDEN CITY CORPORATION (the
"City"), THE XXXXX CITY REDEVELOPMENT AGENCY (the "Agency") and XXXXX XXXXXXXX
PLAZA, L.L.C., a Utah Limited Liability Company (the "Developer").
IN CONSEDERATION of the mutual promises and covenants set forth herein for
other good and valuable consideration, the receipt and sufficiency of which are
hereby and acknowledged, the parties agree as follows:
I. SUBJECT OF AGREEMENT
1.01 Purpose of Agreement. The purpose of this Agreement is to
effectuate the disposition conversion and redevelopment of the Xxxxx Xxxxxxxx
building and adjacent lot located at 0000 Xxxx Xxxxxx into upscale mixed-use
space (herein the "Site"). This Agreement is in accordance with REPC Addendum
No. 2 wherein the parties agree to enter into an Agreement providing for
specific performance in accordance with an acceptable scope of development and
schedule of performance to accomplish the proposed warehouse conversion project.
1.02 Parties to the Agreement.
(a) The City. The City is Ogden City Corporation, municipal
corporation organized and existing under the laws of the State of Utah.
(b) The Agency. The Agency is the Xxxxx City Redevelopment Agency,
a public body, corporate and politic, exercising governmental functions and
powers and organized and existing under the Neighborhood Development Act of
the State of Utah.
(c) The Developer. The Developer is Xxxxx Xxxxxxxx Plaza, L.L.C.,
a Utah Limited Liability Company.
1.03 Definitions. When used herein, the following terms shall have the
meanings set forth:
(a) The "Site". The Site, commonly known as the Xxxxx Xxxxxxxx
property, is as described in REPC Addendum # 1.
(b) Improvem ents and Permitted Uses. Developer proposes to convert
the Site, in a phased approach, from its present condition into an
upscale mixed-use office/retail/residential building, or any combination
thereof.
Phase I improvements are described in Exhibit A, Scope of
Development, and shall include no less than the following:
* obtaining site plan approval from the City for the entire
site;
* obtaining final approval of construction drawings and
documents;
* constructing seismic improvements necessary to occupy the
premises;
* constructing roof repairs;
* replacing exterior doors and windows;
* constructing exterior wall improvements - including brick
repointing, cleaning and/or painting as necessary to create a
high quality project;
* bringing utilities to the building and installing fire
suppression system;
* landscaping, lighting, and sidewalk replacement.
Future phases shall include a best effort by Developer to construct
those improvements necessary to complete the project and obtain the
requisite certificates of occupancy for the entire premises.
II. DISPOSITION AND DEVELOPMENT OF THE SITE
2.01. Disposition. The City and Agency shall convey their respective
interests in the Site to Developer subject to City holding a first trust deed on
the Xxxxx Xxxxxxxx building and Agency holding a first trust deed on the
adjacent lot. The trust deeds shall be in the amount of Two Hundred Fifty
Thousand and no/100 Dollars ($250,000) secured by trust deed notes satisfactory
to City and Agency and executed by Developer.
2.02 Reconveyance or subordination of trust deeds. The City and Agency
shall subordinate their respective interests in the Site or reconvey the trust
deeds and deem the trust deed notes satisfied upon the following conditions:
2
(a) City and Agency shall subordinate their interest in the Site to
verifiable financing sufficient to complete all phases of project as
proposed in REPC; Upon completion of all phases of project, City and
Agency shall consider trust deed notes satisfied and shall reconvey
respective interests in Site; or
(b) Agency shall maintain a first trust deed on the lot adjacent to
the Xxxxx Xxxxxxxx building and the City shall subordinate its interest
in the Xxxxx Xxxxxxxx building portion of the Site upon Developer
providing evidence satisfactory to City of financing sufficient to
complete and occupy not less than fifty percent (50%) (not including
basement) of the Xxxxx Xxxxxxxx building; and City and Agency shall
reconvey to Developer their interests in the Site upon Developer
obtaining certificate of occupancy for not less than fifty percent (50%)
of the building and when taxable value of the Site is sufficient to
enable Agency to receive not less than Two Hundred Fifty Thousand and
no/100 Dollars ($250,000) of tax increment from the Site for the purpose
of compensating City and Agency for the Site; or
(c) Agency shall maintain a first trust deed on the lot adjacent to
the Xxxxx Xxxxxxxx building and the City shall subordinate its interest
in the Xxxxx Xxxxxxxx building portion of the Site upon Developer
providing evidence satisfactory to City of financing sufficient to
complete not less than fifty percent (50%) (not including basement) of
the space in the Xxxxx Xxxxxxxx building. Agency shall reconvey its
interest in lot upon completion of 50% of space and upon Developer
paying in cash the amount of trust deed notes to City and Agency.
2.03. Developer's Undertakings. The nature and extent of the Developer's
undertakings are shown in Developer's Scope of Work, Exhibit A hereto, which are
sometimes referred to herein as the "Developer's Initial Improvements". The
aggregate of improvements made to Site by the Developer, including the required
Developer's Initial Improvements together with additional improvements the
Developer may make to the Site, not inconsistent herewith, shall be referred to
as "Developers Improvements."
2.04. General Requirements and Rights of Agency.
(a) Schematic Drawings and Construction Documents (preliminary and final),
as hereinafter defined (in Section 2.04), for Developer Improvements shall be
prepared by a person registered in and by the State of Utah to practice
architecture. The Construction Documents shall be in conformity with this
Agreement, including limitations established in the Scope of Development,
Exhibit A hereto and all applicable federal, state and local laws and
regulations.
3
(b) The architect retained or to be retained by Developer to design the
Improvements shall utilize, as necessary, members of associated design
professions, including engineers and landscape architects.
(c) The Drawings and Construction Documents must be approved by the Agency
in the manner set forth in Section 2.05. Agency's approval with respect to said
Drawings and Construction Documents is directed to determine their compliance
with the REPC and this Agreement. In making said determination, said Drawings
and Construction Documents shall also be subject to general architectural review
and guidance by the Agency. The Agency's approval is in addition to the City's
approval. The City's approval is directed to engineering or structural matters
or compliance with building codes and regulations or applicable state or federal
law relating to construction standards.
(d) Developer Improvements shall be constructed in strict compliance with
the Agency approved Construction Documents and also in strict compliance with
all applicable local, state and federal laws and regulations.
2.05. Approval of Drawings, Construction Documents and Change Orders.
(A) The basic submittals to be made by the Developer to the Agency shall
include, but not be limited to the
(1) Schematic Drawings
The Developer shall prepare and submit Schematic Drawings Developer
Improvements to the Agency for review and written approval within the time
established in the Schedule of Performance, Exhibit B. The Site shall be
developed as established by the Schematic Drawings except as changes may be
mutually agreed upon between the Developer and the Agency. This review is
intended to secure agreement on and approval of the basic design concept
prior to extensive work by the Developer's architect. The Schematic
Drawings shall generally include, but not be limited to the material
described in the Scope of Development, Exhibit A.
(2) Preliminary Construction Documents
The Developer shall prepare and submit Preliminary Construction
Documents for Developer Improvements to the Agency for review and written
approval within the time established in the Schedule of Performance, Exhibit
B. The Preliminary Construction Documents should represent a further
development of the Schematic Drawings and shall incorporate any Agency
conditions for approval of the Schematic Drawings. The Preliminary
Construction Documents shall generally include, but not be limited to the
material described in the Scope of Development, Exhibit A. These
Preliminary
4
construction Documents shall be in sufficient detail and completeness to
show that such improvements and the construction thereof will be in
compliance with Development Requirements.
(3) Final Construction Documents
Immediately after approval by the Agency of the Preliminary
Construction Documents, Developer shall proceed with the preparation of the
Final Plans. Final Construction Documents shall mean and include all
drawings, specifications and other related documents necessary for the
construction and completion of construction of the Improvements in
accordance with the requirements of this Agreement. Final Construction
Documents shall be based upon, and conform to, the approved Preliminary
Construction Documents and shall contain such modifications and changes, if
any, specified by the Agency as a condition of approval of the preliminary
plans. The Final Construction Documents shall generally include, but not be
limited to, the material described in the Scope of Development, Exhibit A.
(B) The Developer shall prepare and, upon the request of the
Agency, submit to the Agency a summary copy of: (1) all requests or bids for
labor and materials, (2) copies of a bids received, and (3) awards notices to
proceed with construction.
2.06. Issuance of Permits
(A) The Developer shall have the sole responsibility for obtaining
all necessary permits and shall make application for such permits directly to
the Xxxxx City Community Development Department and other appropriate agencies.
Developer shall timely, and at least prior to the date scheduled for
construction, submit an application for building permits and thereafter
diligently prosecute such application. If Developer intends to proceed at first
with only a Site permit, Developer shall nevertheless timely apply for and
thereafter diligently pursue the issuance of the building permits or other
intermediate permits to the end that construction may proceed without
interruption once it has commenced. Failure to timely file and to diligently
pursue issuance of all permits shall be a breach of this Agreement and grounds
for termination of this Agreement at the option of the Agency.
(B) The Developer shall carry out the construction of the
improvements in conformity with all applicable laws, ordinances, regulations and
rules. Including all applicable federal and state labor standards.
2.07. Times for Construction. The Developer agrees for itself, and
any of its permitted successors and assigns to the Site or any part thereof,
that the Developer, and such permitted successors and assigns, shall promptly
begin and diligently prosecute to completion the redevelopment of the Site
through the Construction of the Improvements thereon, and that such construction
shall in any event commence and hereafter diligently pursue and shall be
completed
5
no later than the dates specified in the Schedule of Performance, Exhibit B.
2.08. Reports. The Developer shall, upon the request of the Agency,
and until construction of the Improvements has been completed, make in such
detail as may reasonably be required by the Agency, a report in writing to the
Agency every month as to the actual progress of the developer with respect to
such construction. During such period also, the work of the Developer shall be
subject to inspection by representatives of the Agency.
2.09. Access to Site. The Developer shall permit access to the Site
by the Agency, and the City for purposes of inspection, and, whatever and to the
extent necessary, to carry out the purposes of this and other sections or
provisions of this Agreement, subject to reasonable prior notice and compliance
with any waiver requirements by Developer's insurance carrier(s).
2.10. Certificate of Completion for Phase One Improvements
Promptly after completion of Developer's Initial Improvements, sometimes
referred to as Phase One, in accordance with the provisions of this Agreement,
and compliance with applicable City Ordinances and Building Codes, the Developer
shall request from the City a certificate of completion for the improvements
completed. Once issued, such certificate by the City shall be a conclusive
determination of satisfaction of the agreements and covenants to this Agreement
with respect to construction by Developer of Developer's Initial Improvements
and its permitted successors and assigns.
III. PAYMENT OF TAXES, ADDITIONAL PAYMENT OBLIGATION IN EVENT
OF INADEQUATE TAX INCREMMNT REVENUE
Taxes and Assessments. All ad valorem taxes and assessments levied or
imposed on the Site for any period commencing after acquisition of the Site by
the developer shall be paid by the Developer on or before the due date.
The Developer shall have the right to protest or appeal the amount of
assessed value levied against the Site by the County Assessor, State Tax
Commission or any lawful entity authorized by law to determine the ad valorem
assessed against the Site, or any portion thereof in the same manner as any
other taxpayer as provided by law. The Developer shall, however, notify the
Agency in writing at least fifteen (15) days prior to the time and date of such
protest or appeal of its decision to protest or appeal such assessment
determination. The Agency shall have the right, without objection by the
Developer, to appear at the time and date of such protest or appeal and to
present information or evidence in support or objection to which the amount of
assessment should or should not be granted. In the event for any reason the ad
valorem taxes and assessments levied and imposed on the Site are in an amount
insufficient to timely service Developer's indebtedness to the Agency the
payment of which is primarily secured by such tax increment then Developer
covenants and agrees to make payment to Agency in a timely manner of such
additional payments to Agency in such amounts and at such intervals as shall
allow all
6
Developer indebtedness to Agency to be timely serviced and paid in due course
without delay or delinquency with such conveyance and obligation by Developer to
make additional payments in the event of insufficient tax increment revenue to
continue uninterrupted until all Developer indebtedness to Agency is fully paid
and satisfied.
IV. ANTI-SPECULATION AND ASSIGNMENT PROVISIONS
4.01. Representation as to Redevelopment. The Developer represents
and agrees that its purchase of the Site, and its other undertakings, pursuant
to this Agreement, are and will be used for the purpose of redevelopment of the
Site and not for speculation in land holding. The Developer further recognizes
that, in view of:
(A) the importance of the redevelopment of the Site to the general
welfare of community;
(B) the subsidy and other public aids that have been or will be made
available by law and by governments for the purpose of making such redevelopment
possible; and
(C) the fact that a change in the ownership or with respect to the
identity of the parties in control of the developer or the degree thereof, is,
for practical purposes, a transfer or disposition of the property then owned by
the Developer and of particular concern to the City and the Agency. The
Developer further recognizes that it is because of such qualifications and
identity, that the City and Agency is entering into this Agreement with the
Developer.
4.02. Prohibition Against Transfer and Assignment. For the reasons
specified in Section 4.01, the Developer represents and agrees for itself, and
any permitted successor in interest, that prior to completion of Developer
Improvements as certified by the City, there shall be no transfer by any party
of the Developer, which term shall be deemed for the purposes of this and
related provisions to include successors in interest, nor shall any such party
of the Developer suffer any such transfer to be made, without the approval of
the Agency, where the decision shall be based upon the Agency's evaluation of
the ability of said successors to construct the Improvements and to provide
benefits to the community from the Site which are comparable to those benefits
contemplated to be provided by the Developer from the construction to its
Improvements on the Site; nor shall there, without such approval, be or be
suffered to be by the Developer, or by any part of the Developer therein, any
other similarly significant change in the ownership, or with respect to the
identity of the parties in control of the Developer. With respect to this
provision:
(A) The Developer may, with written approval of the Agency, transfer
or make a significant change in the ownership for the purpose of obtaining
financing necessary to enable the Developer or its successor in interest to
perform its obligations with respect to making the Improvements under this
Agreement. A significant change in the ownership of Developer is any change
which results in a diminution of the present ownership interest
7
held by the initial organizing members of developer below Fifty One Percent
(51%).
(B) The Agency she be entitled to require as conditions to any such
approval that:
(1) Any proposed transferee shall have the qualifications and
financial responsibility, as determined by the Agency, necessary and
adequate to fulfill the obligations undertaken to this Agreement by the
Developer.
(2) The consideration payable for the transfer by the transferee
or on its behalf shall not exceed an amount representing the actual
costs incurred (not merely imputed), including carrying charges, to the
Developer of the Site and the Developer Improvements, if any,
theretofore made thereon by it. It is the intent of this provision to
preclude assignment of this Agreement or transfer of the Site or any
parts thereof for profit prior to the completion of the Improvements;
4.03 Reports and Notices - Changes in Ownership. In order to assist
in the effectuation of the purposes of this section and the statutory objectives
generally, the Developer agrees that during the period between execution of this
Agreement and completion of the Improvements as certified by the City and
Agency:
(A) The Developer will promptly notify the Agency of any and all
changes whatsoever in the ownership.
(B) The Developer will promptly notify the Agency of any and all
changes whatsoever in the Developer's following personnel: officers, project
director, architect, legal counsel, engineer, and project supervisors.
V. RIGHTS OF TERMINATION
5.04. Rights of Termination
(A) Termination by Developer.
The Developer prior to September 1, 1998, at its option, may
terminate this Agreement if the Developer shall furnish evidence
satisfactory to the Agency that it has been unable, after and despite
diligent effort to obtain financing commitments from financial
institutions sufficient to enable it to finance the construction of the
improvements contemplated to the constructed on the Site under the
Scope of Development, Exhibit A, on or before the date therefor set
forth in the Schedule of Performance, Exhibit B.
8
In the event that Developer terminates this Agreement, neither
party shall have any further rights or liabilities against the other.
(B) Termination by Agency or City.
(i) The Agency or City at its option may terminate this
Agreement with respect to the Site if the Developer improperly
assigns or attempts to assign this agreement (or any rights
therein) or the Site (or any rights therein) in violation of
Section 4.02 of this Agreement. Upon such termination, neither
party shall have any further rights or liabilities against the
other.
(ii) The Agency at its option may terminate this Agreement
if the Developer does not submit construction drawings and related
documents and pursue development as required by Article II of this
Agreement, and such breach is not cured within thirty (30) days
after the date of written demand therefor by the Agency. If
terminated, neither party shall have any further rights or
liabilities against the other.
VI. GENERAL PROVISIONS
6.01. Successors and Assigns of Developer. This Agreement shall be
binding upon Developer and its successors and assigns and where the term
"Developer" is used in this Agreement, it shall mean and include the successors
and assigns of Developer except that: Agency and City shall have no obligation
under this Agreement to any unapproved successor or assign of Developer where
Agency and City approval of a successor or assign are required by this
Agreement.
6.02. Approval by Agency, City and Developer. Wherever this
Agreement requires the Agency, City or the Developer to approve any contract,
document, plan, specification, drawing or other matter, such approval shall not
be unreasonably withheld.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth opposite their respective signatures below.
9
DATE: AGENGY
THE OGDEN NEIGHBORHOOD
DEVELOPMENT AGENCY
BY____________________________
Executive Director
ATTEST:
_____________________________
DATE: CITY
XXXXX CITY CORPORATION
[XXXXX CITY, UTAH CORPORATE SEAL]
BY____________________________
Mayor
ATTEST:
/s/Xxxxxx B___________________
DATE; DEVELOPER:
BY /s/Xxxxx Xxxxxx
_____________________________
Its Duly Authorized Representative
ATTEST:
_____________________________
Secretary
10
EXHIBIT A
SCOPE OF DEVELOPMENT
The project consists of a phased approach to convert the site from its
present condition into an upscale mixed-use building. Phase 1, which is the
subject of this Scope of Development, shall include:
* obtaining site plan approval from the City for the entire site;
* obtaining final approval of construction drawings and documents;
* constructing seismic improvements;
* constructing roof repairs;
* replacing exterior doors and windows;
* constructing exterior wall improvements - including brick repointing,
cleaning and/or painting as necessary to create a high quality
project;
* bringing utilities to the building and installing fire suppression
system;
* landscaping, lighting, and sidewalk replacement.
The objective is to create a structurally sound shell attractive from the
outside and ready to improve on the inside, while still allowing Developer
ability to construct according to need and market demand.
Future phases shall include a best effort by Developer to construct
those improvements necessary to complete the project and obtain the requisite
certificates of occupancy for the entire premises.
11
EXHIBIT "B"
SCHUEDULE OF PERFORMANCE
XXXXX WILLLAMS PLAZA
ACTIVITY DURATION (WEEKS) DEADLINE
Planning
Re-zone 8 June 1, 1998
Site Plan 8 September 1, 1998
Financing 26 December 1, 1998
Design/Engineering
Architectural 8 January 1,1999
Civil engineering 6 January 1,1999
Mechanical engineering 4 January 1,1999
Electrical engineering 4 January 1,1999
Structural engineering 6 January 1,1999
Landscape 4 June 1, 1999
Schematic drawings July 1, 1998
Preliminary construction documents September 1, 1998
Final construction documents November 1, 1998
Pre-Construction
Building Permit 8 January 1,1999
Bidding 2 January 1,1999
Contractor selection 2 January 1,1999
Construction
Demolition 4 February 1, 1999
Site 24 August 1, 1999
Structural
Roofs 10 September 1, 1999
Exterior/load-bearing walls 10 September 1, 1999
Floors 8 September 1, 1999
Windows/Doors 8 October 1, 1999
Utilities
Water 4 June 1, 1999
Sewer 4 June 1, 1999
Power 2 June 1, 1999
Telephone 2 June 1, 1999
Gas 2 June 1, 1999
Fire sprinklers 4 November 1, 1999
