EXHIBIT 10.24
DEVELOPMENT AGREEMENT
THIS AGREEMENT ("Agreement") made this 3rd day of December, 2003, by
and between KIRCO DEVELOPMENT LLC, a Michigan limited liability company, whose
address is 000 Xxxx Xxx Xxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000-0000
(hereinafter referred to as "Kirco"), and MEADOWBROOK INSURANCE GROUP, INC., a
Michigan corporation, whose address is 00000 Xxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000 (hereinafter referred to as "Owner").
WITNESSETH:
1. CONTRACT. Owner is the owner of certain land, containing
approximately nine (9) usable acres, to be confirmed by the Survey, located on
American Drive with frontage on I-696, in the City of Southfield, Oakland
County, Michigan, more fully described on the attached Exhibit A (the
"Property"). Owner desires to, and does hereby, engage Kirco to improve the
Property by the construction of an office building consisting of 72,000 gross
square feet (the "Building") and related improvements hereinafter described
(collectively with the Building, the "Improvements" or "Project"), upon and
subject to the terms and conditions hereinafter set forth. The Building will be
the first phase of a two-building office complex of approximately 163,000 gross
square feet, of which the parties intend that Kirco will be the developer and
owner of phase 2.
2. CONTRACT PRICE, FINANCING. The contract price for the
Improvements shall be a stipulated sum of Eleven Million and 00/100 U.S. Dollars
($11,000,000.00 U.S.) (the "Contract Price"). Kirco will provide construction
financing for the project. Both Owner and Kirco will provide the documentation
reasonably required by Owner, Kirco and the lender for the construction loan
closing including, without limitation, a tri-party agreement between Kirco,
Owner and the construction lender and Owner in form reasonably satisfactory to
the construction lender, Owner and Kirco pursuant to which, among other things,
(i) Owner will be required to pay the Contract Price to the lender (subject to
set offs described herein) in full upon satisfaction of the conditions described
in Section 3 below, and (ii) Kirco will assign to the construction lender as
security all of its rights to receive payment hereunder and the purchase option
rights set forth below, in lieu of granting to the construction lender a
Mortgage on the Property.
The execution by Owner of the tri-party agreement, the Mortgage (as
defined below) and other documents required by the construction lender to make
the construction loan, shall be a condition precedent to Kirco's obligation to
proceed under this Agreement. The Contract Price is subject to adjustment based
on any changes or modifications to the Building and other Improvements as may
hereafter be agreed to in writing by Kirco and Owner. Owner agrees that pursuant
to the tri-party agreement, Owner shall xxxxx Xxxxx and Kirco's lender a first
Mortgage, rent assignment, security agreement and other customary loan and
security documents (collectively "Mortgage") to secure Owner's payment of the
Purchase Price subject to the terms and conditions of this Development
Agreement. The Mortgage shall encumber only phase one of the Project. If a
separate legal description is not available for phase one, then Kirco and
Kirco's lender shall agree to release phase two when a separate legal
description becomes available.
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If Kirco obtains a construction loan supported by a tri-party agreement
and Mortgage materially in conformity with the foregoing terms, and Owner
withholds its consent to the tri-party agreement and Mortgage, either party
shall have the right to terminate this Agreement by written notice given within
four (4) business days after delivery of the Commitment and loan documents to
Owner, Meadowbrook will pay Kirco up to $550,000 (less sums previously paid) to
reimburse Kirco for its actual out of pocket costs, including architectural,
engineering, land clearing and steel fabrication costs. If Kirco fails to obtain
a construction loan with a tri-party agreement and Mortgage materially in
conformity with the foregoing on or before December 31, 2003, either party shall
have the right to terminate this agreement by written notice given within four
(4) business days after delivery of the Commitment and loan documents to Owner
and neither party shall have any further obligation to the other. For purposes
of this paragraph a loan shall be deemed obtained when a commitment has been
issued and loan documents produced and distributed.
3. PAYMENT OF CONTRACT PRICE. The Contract Price includes, among
other things, a Development Fee payable to Kirco. The Contract Price (including
the Development Fee) shall be paid in full upon (i) Substantial Completion of
Kirco's work and receipt by Owner of a temporary certificate of occupancy issued
by the City of Southfield, (ii) a Certificate of Substantial Completion or
similar documented acknowledgment by the Architect, and (iii) completion of
Improvements to the satisfaction of the permanent Mortgage lender, provided, if
Owner's Permanent lender is not prepared to close and fund the permanent loan,
and pay the balance due to Kirco, within thirty (30) days after satisfaction of
the requirements of clauses (i) and (ii), Owner shall make the full payment to
Kirco within thirty (30) days after satisfaction of the requirements of clauses
(i) and (ii). If and to the extent Owner has not utilized the full tenant
improvement or other allowances included in the Contract Price, as set forth in
the budget, the unused portion shall be credited toward Owner's payment
obligations to Kirco at the time of full payment.
If at any time a lien is recorded with respect to the project site or
premises, by anyone claiming amounts due from Kirco or Kirco's suppliers and
subcontractors, Kirco shall have thirty (30) days after written notice of
recordation of the lien to obtain a discharge of the claim of lien by payment or
to post a bond discharging the lien in accordance with the Construction Lien Act
or to escrow the funds necessary to pay the claimant with the title company.
Upon failure of Kirco to do either, Owner at its discretion shall have the right
to discharge the claim of lien and deduct from the Contract Price the amount
paid to discharge the lien plus a reasonable amount for Owner's administrative
time, not to exceed ten percent (10%) of the amount paid to discharge the lien.
Kirco shall at all times comply with the requirements of the Construction Lien
Act with respect to the payment of subcontracting and material suppliers.
If Owner fails to make full payment of the Contract Price within thirty
(30) days after the date of Substantial Completion, as provided above, interest
shall accrue on the Contract Price at an annual rate equal to 200 basis points
over the prime rate of Bank One, N.A., in effect during the period that the
balance of the Contract Price remains unpaid, calculated on a per diem basis for
each day after the thirtieth (30th) day following substantial completion until
paid in full.
4. GENERAL DESCRIPTION OF BUILDING AND IMPROVEMENTS. The Building
to be constructed shall be an approximately 72,000 gross square foot office
building, consistent with the specifications outlined in Kirco's proposal dated
June 11, 2003, as
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modified by this Agreement and subsequent letter agreements and subject to any
subsequent changes as properly approved and authorized by Kirco and Owner as
stated in this Agreement, the current site plan, elevation and floor plans
(collectively the "Preliminary Plans") attached hereto as Exhibit B, and the
"Scope of Work" for the project attached hereto as Exhibit C. The Property shall
be landscaped by Kirco in accordance with the Plans and Specifications.
5. PLANS AND SPECIFICATIONS. The Building and improvements shall
be constructed substantially as depicted on approved site plan for the project,
a copy of which is attached hereto as Exhibit D, and in accordance with the
Scope of Work for the project, the final design/development Plans and
Specifications for the Building and Improvements to be prepared by Xxxxxxxx
(hereinafter the "Architect" or "Architects) consistent with the foregoing and
to be mutually approved by Kirco and Owner in writing and to be attached hereto
as Exhibit F (the "Plans and Specifications"), and any modifications or changes
to the Plans and Specifications that may hereafter be agreed to by Kirco and
Owner; provided, that any change from the preliminary plan and Scope of Work
that is reflected in the final Plans and Specifications that results in a change
in cost to Kirco, including without limitation any change in the design of the
roof from the design originally contemplated by the parties, shall be set forth
in a written Change Order approved and signed by Kirco and Owner, and the
Contract Price shall be increased or decreased accordingly. The foregoing
notwithstanding, Kirco reserves the right to make reasonable changes or
substitutions of substantially equivalent products and materials for those
listed in the Plans and Specifications in the event of unavailability or
unanticipated price increases or to avoid unnecessary delays in the construction
of the Building, such changes to be agreed in advance by Owner, whose consent
shall not unreasonably be withheld or delayed.
Once the Plans and Specifications and Scope of Work have been approved
in writing by both Kirco and Owner, if the Owner requests any changes in the
Scope of Work, any upgrade in materials or any variation from the preliminary
plans prior to completion of the Plans and Specifications, Kirco will obtain an
estimate of any cost differential resulting from such change from one or more of
Kirco's contractors or suppliers, as applicable, and shall provide that estimate
to Owner, along with an estimate of the increase or decrease in Kirco's on-site
personnel costs, if any, resulting from such change, and Owner shall notify
Kirco in writing within ten (10) business days thereafter if Owner desires to
include that change in the Plans and Specifications. In the absence of a timely
notice electing to make such change, Owner shall be deemed to have elected to
not make such change. Upon completion of the Plans and Specifications, as part
of Kirco's bidding process Kirco will obtain bids that reflect the actual
difference in cost resulting from the changes requested by Owner. Owner shall
have the right to approve or disapprove the actual cost as reflected in the bids
and to withdraw the request for a change in the Plans and Specifications,
provided that such approval or disapproval must be communicated to Kirco in
writing within ten (10) days after delivery of the bids to Owner. If Owner fails
to disapprove the bids within that time period, Owner will be deemed not to have
approved the bids. Upon award of the contracts by Kirco, the amount of the
difference in cost resulting from the changes requested by Owner as bid by the
successful bidder for that work or material will, as applicable, be added to or
subtracted from the Contract Price, together with any increase or decrease in
Kirco's on-site personnel costs resulting from such change and, in the case of
an increase in the costs, a construction management fee equal to five percent
(5%) of all the additional costs, including Kirco's on-site personnel costs,
shall also be
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added to the Contract Price. Kirco's on-site personnel costs shall include
direct salary or hourly pay, reasonable and customary fringe benefits and
ordinary and necessary employer costs directly related to such change.
Upon completion of the proposed Plans and Specifications, Kirco shall
deliver the same to Owner and Owner shall have ten (10) business days following
the date of delivery to Owner to review and approve or comment in writing on the
proposed Plans and Specifications. If Owner timely comments or raises any
objection to the proposed Plans and Specifications, Kirco shall address the
comments and objections with the Architect within five (5) business days and, if
necessary, will convene a meeting between representatives of Kirco, Owner and
the Architect to resolve any outstanding issues. Upon completion of any revised
proposed Plans and Specifications and delivery of the same to Owner, Owner shall
have five (5) business days to review and approve or comment in writing on them.
If a second set of revised proposed Plans and Specifications is necessitated by
Owner's timely comments, the parties shall follow the same procedure as in the
case of the first set of revised plans. Upon review, revision and approval in
accordance with the foregoing, the proposed Plans and Specifications shall be
attached to this Agreement as Exhibit F and shall be the final Plans and
Specifications. Once the final Plans and Specifications have been approved, any
changes or revisions thereafter requested by Owner shall be deemed to be changes
concerning which Owner shall be liable for, and shall pay any increase in the
Contract Price directly occasioned by such changes and the cost incurred by
Kirco in connection therewith including, without limitation, any additional
Architect's fees incurred for the preparation of revisions to the design and
development drawings or Plans and Specifications and all additional fees and
costs of Kirco's construction contractor.
Kirco shall be responsible for reviewing the Plans and Specifications
and satisfying itself as to the accuracy and completeness of the same, except
for those matters pertaining to layout and functionality for Owner's proposed
use, which shall be Owner's responsibility to review. Kirco shall provide
summaries or copies of manufacturer's and installation warranties for Owner's
approval regarding all major systems, HVAC, windows, roofing, parking and major
fixtures which shall meet or exceed commercially reasonable warranties which are
normal for construction of this size and type. Subject to the limitations on
Kirco's liability set forth in Section 13 below, Kirco shall bear all
responsibility for any errors or defects in the Plans and Specifications of the
Building and Improvements with respect to the types, characteristics and
specifications of appropriate materials or components, but Owner shall be
responsible for any errors or defects in the Plans and Specifications of the
Building and Improvements pertaining to layout and functionality for Owner's
proposed use.
Upon completion of the work, Kirco shall provide to Owner at Kirco's
expense original manufacturer's and installer's warranties to Owner regarding
all major systems, HVAC, windows, roofing, parking and major fixtures, and three
(3) complete sets of "as-built" plans for the Building, which shall be delivered
as soon as practicable following Substantial Completion. Failure of Kirco's
subcontractors relating to the timely delivery of the as-built plans shall not
excuse Kirco's performance.
Simultaneously with the signing of this Agreement, the Architect has
delivered to Owner a statement to the effect that the Architect has acted as
architect for Owner and that Owner is entitled to rely upon the Architect's
professional expertise in Owner's
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approval of the Plans and Specifications. The Architect shall provide proof of
professional liability insurance to Owner.
Kirco shall not be liable for the cost of, and the work to be performed
for the Contract Price by Kirco does not include, certain items identified as
"Exclusions" on Exhibit B and Exhibit C, all of which costs shall be the
responsibility of Owner and shall be added to the Contract Price. In general,
all work not expressly included within the Scope of Work and not reflected in
the Plans and Specifications approved by Owner and Kirco shall be an exclusion
from the work; provided, however, it is contemplated that completion of all
construction pursuant to all approved Plans and Specifications is included
within the Contract Price, as the same may be adjusted in accordance with the
terms of this Agreement.
6. CONSTRUCTION. Kirco shall provide all labor and materials for
the construction of the Building and all related Improvements on the Property to
provide the completed Building to Owner substantially in accordance with the
Plans and Specifications. Kirco shall commence the performance of its
obligations hereunder as soon as practical after (i) satisfaction of all
conditions precedent to Kirco's obligation to perform as set forth in this
Agreement, (ii) Owner's acquisition of fee title to the Property and the
issuance of all necessary building permits and other permits to permit the
construction of the Building and related improvements, and (iii) completion of a
pre-construction orientation meeting between the designated representatives of
Kirco and Owner.
Kirco will proceed with the site work based upon the approved site
plan, but shall not be obligated to commence construction of the Building and
related improvements until the Preliminary Plans and Specifications have been
approved by Owner and Kirco. Kirco shall pursue the issuance of all permits,
approvals and construction with reasonable diligence and shall Substantially
Complete the construction on or before September 30, 2004 (the "Outside
Completion Date"), subject to delays occasioned by changes requested by Owner
and set forth in signed change orders, weather conditions which cause a work
stoppage of greater than eighteen (18) days in the aggregate, strikes, fires and
other casualties which damage the Building, acts of God, war, insurrection,
actions of terrorists or foreign insurgents. The Outside Completion Date shall
be extended one day for each day of delay occasioned by changes requested by
Owner and set forth in signed change orders, weather conditions which cause a
work stoppage of greater than eighteen (18) days in the aggregate, strikes,
fires and other casualties which damage the Building, acts of God, war,
insurrection, actions of terrorists or foreign insurgents. If Kirco has failed
to Substantially Complete the construction by the Outside Completion Date, as
the same may be extended as provided above, Kirco shall pay to Owner, as Owner's
sole monetary remedy, liquidated damages in the amount of Two Thousand and
00/100 Dollars ($2,000.00) per day for each day that Substantial Completion is
delayed after the Outside Completion Date, which liquidated damages shall be
credited toward the Contract Price to be paid by Owner at the time of final
payment hereunder. Except as set forth in this Agreement, no warranty or
representation is made by Kirco as to the specific completion date or schedule
of construction, and no person other than Kirco has any authority to so bind
Kirco. In no event shall Kirco have any liability to Owner for any damage caused
by delays in completion of construction except as provided in this Agreement.
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If Kirco obtains the necessary permits and commences construction but
fails to complete construction within twelve (12) months after the issuance of
all building and other necessary permits, unless delayed by changes requested by
Owner, weather conditions which cause a work stoppage of greater than eighteen
(18) days in the aggregate, strikes, fires or other casualties which damage the
Building, acts of God, war, insurrection, actions of terrorists or foreign
insurgents, Owner shall have the right, but not the obligation, to take over the
project and complete the same in the same manner as provided in Section 18(b)
below.
Kirco shall be free to engage such contractors, subcontractors and
suppliers of Kirco's selection as Xxxxx xxxxx appropriate in its sole
discretion. In particular but without limiting Kirco's right to engage the
contractors and subcontractors of its selection, Owner acknowledges that Kirco
intends to engage a related entity, Kirco Construction LLC, to perform the
actual construction work. No work shall be performed and no appliances, wiring,
cabinets, fixtures or other materials shall be installed in the Building or on
the Property by Owner or any contractor, supplier or other person acting on
Owner's behalf prior to Substantial Completion without Kirco's prior written
consent, which consent shall not be unreasonably withheld or delayed. In
addition, Owner shall be responsible for all actual and demonstrable loss, cost
or damage suffered or incurred by Kirco, if any, as a result of any such work
performed or installations made by Owner or on Owner's behalf, with or without
Kirco's consent, and Owner shall indemnify and hold Kirco harmless with respect
to the same. Any such additional loss, costs or damage actually incurred by
Kirco as a result of Owner's work on site shall be added to the Contract Price
and shall be payable in full by Owner upon Substantial Completion.
Kirco shall keep Owner advised of the progress of construction on a
periodic basis and shall advise Owner of the anticipated date on which
Substantial Completion will be achieved at least thirty-five (35) days prior to
such date, and Owner shall have access to the Building during the thirty (30)
days immediately prior to the anticipated Substantial Completion date for the
purpose of Owner's installation of its own furniture and fixtures in the
Building and to commence the move-in to the Building, providing that Owner shall
pre-schedule all of such activities with Kirco, shall conduct such activities at
a time and in such manner as to not interfere with the timely completion of the
Building, and shall not occupy the Building or any portion thereof prior to the
issuance of a temporary or permanent certificate of occupancy for the Building.
7. CHANGES. All changes or revisions to the final Plans and
Specifications ("Change Order") must be in writing and signed by both Owner and
Kirco to be effective. In the event any such Change Order results in an increase
in Kirco's costs, whether for increases in contractor/subcontractor/supplier
charges or for Kirco's on-site personnel costs, or both, the Contract Price
shall be increased to reflect those increased costs plus a construction
management fee of five percent (5%) of those increased costs. The additional
costs occasioned by such Change Order shall be added to the Contract Price and
paid over the term of the contract through progress payments as provided in
Section 3 above. If the actual change in the Contract Price can be determined at
the time the Change Order is signed, the Change Order shall include the amount
of any increase or decrease in the Contract Price resulting from such change. If
the actual change in the Contract Price cannot be determined at that time due to
lack of revised construction drawings or any other reason, Kirco shall obtain an
estimate of the cost of the change in the same manner as provided in Section 5
above, the Change Order shall include an estimate of any change in the Contract
Price, and a revised Change Order shall be
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prepared and executed when the actual change in the Contract Price can be
determined. The cost of the Change Order shall be net of (ie. reduced by) any
cost savings resulting from the change. If a change results in a net cost
savings, seventy-five percent (75%) of the cost savings shall be applied in
reduction of the Contract Price. Neither Owners nor Kirco shall be bound by any
such Change Order revision unless and until agreed in writing by Kirco and
Owner. In addition, all change requests are subject to the changes complying
with all applicable building codes, ordinances and requirements. Owner
acknowledges that any material change or modification to the Plans or
Specifications may result in a delay in the completion of the Building. The
duration of the delay shall be set forth in the agreed Change Order.
8. VEGETATION, LANDSCAPING. Kirco shall have the right, at any
time during construction of the Building, to remove such trees, shrubs, grass or
other natural vegetation as Kirco, in its sole discretion, shall deem reasonably
necessary to permit construction of the Building. Kirco shall install sod and
landscape the Property at the appropriate stage of construction, weather
conditions permitting, in accordance with the landscaping plan to be
incorporated in the site plan to be approved by both Kirco and Owner (subject to
the allowance limitation set forth in the "Plantings" item on the attached
Specifications). Any additional landscaping requested by Owner shall require a
Change Order, and shall otherwise be subject to the change provisions of Section
7 above.
9. SELECTIONS. Owner shall, from time to time as requested by
Kirco and in any event within twenty-one (21) days after written notice from
Kirco, indicate in writing to Kirco all necessary paint, tile, carpeting or
other selections of any kind or description required for completion of the
Building. In the event Owner fails to so indicate within the time required,
Kirco shall have the right to make such selections as Kirco shall deem
reasonably necessary to prevent delay in the construction of the Building and
the Owner shall accept such selections as its own without adjustment in price.
10. INSURANCE; INDEMNITY. Kirco will obtain and shall maintain in
effect until final payment of Kirco hereunder a Builder's Risk Insurance Policy
for the full replacement cost of the Improvements and such other insurance
coverage as Owner deems appropriate covering the Building, Improvements and the
construction during the period of construction. The premium for the insurance
shall be a budget item and shall be paid by Kirco as part of the cost of
construction pursuant to this Agreement. Owner shall be named as the insured
under the insurance policy. Kirco will maintain adequate xxxxxxx'x compensation
insurance and provide evidence thereof upon request. Owner will maintain its own
real property owner's liability insurance. Kirco and Owner agree that Owner does
not retain possession or control of the Property while Kirco is constructing the
Improvements. Kirco shall defend, indemnify and hold harmless Owner against
claims, liability and expenses arising from Kirco's or its agents' and
contractors' activities on the Property. Kirco shall furnish evidence to Owner
that Kirco carries and maintains in effect liability insurance with limits of
not less than Three Million and no/100 Dollars ($3,000,000.00) for each
occurrence and has caused Owner to be named as an additional insured.
11. EVIDENCE OF TITLE. As evidence of title, Owner shall obtain
and deliver to Kirco, promptly after the execution of this Agreement, a copy of
a title commitment evidencing and committing to insure Owner's fee title
interest in the Property in an amount equal to Owner's purchase price for the
Property plus the full Contract Price
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hereunder. Upon substantial completion of the Project, Owner shall obtain an
updated commitment, and Owner shall pay for and obtain a policy of insurance
insuring that the Project is free of liens claimed by Kirco or persons claiming
by, under, or through Kirco or Kirco's contractors or suppliers. If any such
liens are disclosed, Kirco shall pay and satisfy the liens or, if Kirco disputes
the lien, provide statutory bonds so that Owner shall obtain title insurance
free of exceptions for such liens or escrow funds sufficient to pay the lien
claim, and Kirco's failure to do so shall be a default hereunder.
12. LIMITED WARRANTY.
a. Coverage. Subject to the limitations and exclusions from
coverage set forth below, Kirco hereby warrants: that the Building shall be free
from defects in materials or workmanship for a period of one year following the
date of issuance of a temporary certificate of occupancy; that the Building
shall be fit for the use contemplated by this Agreement in terms of types,
characteristics and specifications of materials and components; and that all
materials shall be new and inspected for defects prior to installation, but
Kirco makes no warranty or representation with respect to layout and
functionality, for which Owner shall be solely responsible.
b. Exclusions from Coverage. Kirco does not assume responsibility
for any of the following, all of which are excluded from the coverage of this
Limited Warranty:
i. Roof membranes and/or other roofing materials, door
xxxxx and frames, overhead doors, furnaces, boilers and other components,
appliances and articles of equipment which are covered by manufacturers'
warranties. Kirco will assign all manufacturers' warranties to Owner, and Owner
will be responsible for complying with the warranty claim procedures in those
warranties if defects appear in any of the covered components. The foregoing
notwithstanding, Kirco will be responsible for pursuing all warranty claims and
enforcing the warranties in the event of any defect that arises during the first
year after the date of Substantial Completion. Thereafter, Kirco agrees to
provide reasonable assistance to Owner in pursuing all such warranty claims and
remedies and to provide all documentation and testimony reasonably necessary to
prosecute such claims. All such warranties shall be in good standing as of the
date of issuance of a certificate of occupancy and shall not commence the
running of such warranty periods prior to the Substantial Completion date
provided for in Section 14 below. Kirco shall provide the warranties customarily
provided by the respective manufacturers, unless a different warranty is
specifically required by the final Plans and Specifications. Kirco shall provide
to Owner for Owner's review prior to completion of the work copies of all
manufacturers' warranties, if available, along with the Plans and
Specifications. Any items excluded from Kirco's Limited Warranty must be covered
by a manufacturer's warranty on the manufacturer's customary form with customary
terms and limitations, as set forth in Section 5 hereof.
ii. Damage due to ordinary wear and tear, abusive use, or
lack of proper maintenance of the Building.
iii. Damage to Kirco's work caused by Owner or any
contractor, installer or other person acting on behalf of Owner.
iv. Minor defects which are the result of characteristics
common to the materials used, such as (but not limited to) warping and
deflection of wood; fading,
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chalking, and checking of paint due to sunlight; cracks due to drying and curing
of concrete, stucco, plaster, bricks, and masonry; spalling of concrete; drying,
shrinking and cracking of caulking and weather-stripping; cracks in tile or
concrete and heaving of tile or concrete, unless the cracking or heaving of the
concrete adversely affects the fitness of the Building for the use contemplated
by this Agreement or permits the infiltration of water; non-structural
settlement of the Building or the ground under or around the Building. Kirco
represents to Owner that it has performed or caused to be performed soil
engineering tests and that the design and specifications of the building have
taken into consideration the soils conditions as disclosed by the soil tests.
v. Damage to or destruction of any tree, shrub or plant
growth which is native to the Property and which remains after completion of
construction of the Building.
vi. Defects in items installed or work performed by Owner
or by anyone on Owner's behalf, other than Kirco or its agents, employees or
subcontractors.
vii. Loss or damage due to the elements subsequent to
completion.
viii. Conditions resulting from condensation on, or
expansion or contraction of, materials which could not reasonably be foreseen or
avoided.
ix. Consequential or incidental damages, including
without limitation the cost of replacement of wall coverings or other
decorations or improvements installed by Owner.
c. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, OR
IN ANY WRITTEN WARRANTY HEREAFTER DELIVERED BY KIRCO TO OWNER, KIRCO MAKES NO
WARRANTY OF ANY KIND WHATSOEVER AND OWNER SHALL ACCEPT THE PROPERTY "AS IS." TO
THE FULLEST EXTENT PERMITTED BY LAW, KIRCO HEREBY EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING UNDER ANY STATE OR
FEDERAL STATUTE, RULE, REGULATION OR CASE LAW, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. THE
FOREGOING NOTWITHSTANDING, IF ANY APPLICABLE LAW OR REGULATION SHALL LIMIT OR
PREVENT THE DISCLAIMER OF IMPLIED WARRANTIES, THE WARRANTY PERIOD FOR ALL SUCH
IMPLIED WARRANTIES SHALL BE LIMITED TO THE PERIOD SET FORTH IN THIS LIMITED
WARRANTY.
d. Claims Procedure. If a defect appears which is or may be
covered by this Limited Warranty, Owner must deliver to Kirco within the one
year warranty period a written service request describing the purported defect;
provided, with respect to hidden or latent defects that are not discovered
within the one year warranty period and which, in the written opinion of a
qualified independent inspector, existed or occurred during the initial twelve
(12) month warranty period, but due to the latent or hidden nature of the
defect, could not reasonably have been, and were not, discovered during the
initial twelve (12) month claim period, the claims period shall be extended
until the earlier of sixty (60) days after the discovery of the latent or hidden
defect or twelve (12) months after the expiration of the twelve (12) month
warranty period. Kirco may aggregate service requests for defects that do not
present a safety or health risk, and make only
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occasional service calls to the Property for warranty repairs. Except as
provided above with respect to latent or hidden defects, Kirco will not be
obligated to respond to any written notice delivered to Kirco after the
expiration of the one-year warranty period, even if the defects that are claimed
in the notice may have arisen within the one-year warranty period.
Notwithstanding the foregoing, nine (9) months after Substantial Completion,
Owner shall furnish Kirco a list of such defects and Kirco shall use reasonable
efforts to correct such defects.
e. Repairs. If Kirco's investigation following submission of a
service request discloses that a defect exists that is covered by this Limited
Warranty, Kirco will repair or replace, at Kirco's option, the defective item at
no charge to Owner with reasonable dispatch, and not later than sixty (60) days
after Kirco's inspection (longer if weather conditions, labor problems or
materials shortages cause delays); provided, however, that if a defect exists
that is covered by this Limited Warranty and emergency or extenuating
circumstances require immediate repair or replacement, Kirco shall immediately
commence such repairs or replacement and shall diligently complete the same and,
provided further, if Kirco is unable to make final repairs or replacement due to
lack of immediately available materials or replacement components, Kirco shall
make such temporary repairs as may be reasonably necessary and shall make final
repairs as soon as the necessary materials or components are available. Kirco's
failure to commence such emergency warranty repairs within two (2) business days
of Owner's written notification of the claimed defect and the circumstances
requiring emergency repairs shall permit Owner to undertake such repairs at
Kirco's cost which, provided the defect is covered by this Limited Warranty,
Kirco shall pay promptly upon demand. The work will be done by Kirco or
subcontractors chosen by Kirco.
f. Nothing contained in Sections 12 and 13 of this Agreement
shall relieve Kirco of its obligation to construct the Project in a workmanlike
manner using the best reasonably available materials and workmanship in
accordance with the Plans and Specifications, and Kirco acknowledges that Owner
has and will rely on Kirco to deliver a Class A office building similar in
quality to the MSX building.
13. LIMITATION OF LIABILITY. KIRCO'S LIABILITY FOR ANY ALLEGED
DEFECT IN MATERIALS OR WORKMANSHIP SHALL BE LIMITED TO REPAIR AND/OR REPLACEMENT
OF THE DEFECTIVE WORKMANSHIP OR MATERIALS. KIRCO SHALL NOT BE LIABLE OR
RESPONSIBLE TO COMPENSATE OR INDEMNIFY OWNER FOR ANY DAMAGES, CLAIM, DEMAND,
LOSS, COST OR EXPENSE RESULTING FROM ANY ALLEGED DEFECT, ANY CLAIM OF DELAY IN
COMPLETION OR ANY ALLEGED BREACH OF WARRANTY HEREUNDER, WHETHER SUCH CLAIM
PURPORTEDLY ARISES IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR
OTHERWISE AND WHETHER RELATING TO INJURY TO PERSONS, PROPERTY, OR OTHERWISE, OR
RELATING TO THE PRESENCE OF ANY ENVIRONMENTAL CONDITIONS (WHETHER NATURAL OR
MAN-MADE) OR ANY TOXIC OR HAZARDOUS WASTE, SUBSTANCE, OR CONTAMINATION, ON, OR
UNDER THE PROPERTY, OR THE LAND ADJACENT TO OR IN CLOSE PROXIMITY WITH THE
PROPERTY (UNLESS CAUSED BY KIRCO'S NEGLIGENCE OR WILFULL MISCONDUCT). UNDER NO
CIRCUMSTANCES SHALL KIRCO BE LIABLE FOR ANY SPECIAL, INDIRECT INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES BASED ON CLAIMED
DIMINUTION IN THE VALUE OF THE BUILDING, EVEN IF KIRCO HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH
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DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER
THIS AGREEMENT MAY BE BROUGHT BY OWNER MORE THAN TWENTY-FOUR MONTHS AFTER THE
COMMENCEMENT OF THE WARRANTY PERIOD.
14. COMPLETION OF CONSTRUCTION AND FINAL PAYMENT. Upon Substantial
Completion of construction of the Building as described in Section 3 above,
Kirco shall so notify Owner. Final payment shall take place at such place as
Kirco and Owner reasonably agree at a time consistent with the requirements
described in Section 3 above. Failure by Owner to make final payment within the
time herein provided shall be a material default under this Agreement. Final
payment shall not be delayed due to the lack of completion of minor details or
Kirco's inability to complete outside cement work, grading or other similar work
due to then prevailing weather or ground conditions or other conditions beyond
the control of Kirco, provided that such incomplete items do not materially
affect Owner's ability to conduct business. In such case, Kirco shall deliver to
Owner a standard weather letter or work order setting forth the minor detail
work or other work to be completed, and an amount equal to one hundred
twenty-five percent (125%) the anticipated cost of completion of such items
shall be withheld from the final payment of the Contract Price and deposited
with Owner's title insurance company, together with the anticipated cost to
complete any landscaping included in the Contract Price if not then completed,
to be held in escrow until each type of such work shall be completed, at which
time such amount shall be paid to Kirco; provided, if the City of Southfield
requires Kirco to escrow funds or post a cash bond to secure the payment of
uncompleted landscaping, the deposit or cash bond with the City shall be
sufficient and Kirco shall not be required to deposit the cost of completing the
landscaping into escrow with the title company. Kirco shall be entitled to the
release of the escrowed funds for each type of work upon submission of written
notice to the title company from Owner that the work has been completed.
15. INTENTIONALLY OMITTED.
16. INSPECTION. At the time of Kirco's notice of Substantial
Completion, Kirco and Owner shall schedule a final inspection of the Building.
During the inspection, which shall be conducted by authorized representatives of
Kirco and Owner, Kirco and Owner shall prepare a "punchlist" of items in need of
repair or correction on Kirco's standard form and Kirco and Owner shall agree on
a reasonable time frame for completion of the punchlist items based on
prevailing circumstances. Owner's failure to schedule such an inspection within
ten (10) days after Kirco's notice of completion and delivery of a copy of a
temporary or permanent certificate of occupancy, or failure to appear at the
time scheduled for the inspection, shall constitute a waiver of Owner's right to
a final inspection and a waiver of Owner's right to have any such repairs or
corrections made prior to final payment, but such failure to inspect shall not
constitute a waiver of Owner's right to have such repairs or corrections made
after final payment.
17. POSSESSION. Except as provided in this Agreement, Kirco shall
have the exclusive possession of the Property prior to completion and final
payment for the work; provided that Owner shall have the right to enter upon the
Property to inspect the progress of the work, so long as such entry does not
interfere with Kirco's ability to perform its obligations hereunder. Kirco shall
deliver to Owner, and Owner shall accept, possession of the said Property at the
time of final payment.
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18. DEFAULT.
a. Owner's Default. In the event of default by Owner in the
performance of any of Owner's obligations hereunder, including the obligation to
make final payment of the Contract Price within the time provided in Section 14
above, and if such default shall continue for a period of ten (10) days after
written notice thereof from Kirco to Owner, or if such default is other than a
failure to make final payment and cannot be cured within ten (10) days, if Owner
shall have failed to undertake and diligently pursue the cure of such claimed
default, Kirco shall have all rights and remedies available at law or in equity
including without limitation, the right to enforce a construction lien against
the Property and, if such default is material and occurs prior to Kirco's
Substantial Completion of the work, the right to declare this Agreement
terminated, null and void. In the event Kirco does so terminate this contract,
Owner shall be liable to Kirco for all of Kirco's damages including, without
limitation, all unpaid fees and profits that Kirco would have received had this
Agreement not been terminated.
In addition to the foregoing, if Owner fails to make full payment of
the undisputed Contract Price (adjusted as provided herein) within thirty (30)
days after the date of Substantial Completion, as provided above, then Kirco
shall have the right and option, but not the obligation, to purchase the
Property from Owner, which option Owner hereby grants to Kirco, for the sum of
Thirteen Million Fifty Thousand and no/100 U.S. Dollars ($13,050,000.00 U.S.)
(the "Option Price"); provided that Kirco shall receive credit against the
Option Price for (i) the unpaid balance of the Contract Price, as the same may
be adjusted in accordance with this Agreement, and (ii) all interest, late
charges and other amounts accruing as a result of Owner's failure to timely pay
the Contract Price required to be paid by Kirco to discharge the construction
financing in full, and (iii) the amount, if any, required to be paid to pay any
unpaid costs of labor and/or materials provided to the Building and Improvements
at the request of Owner and not included within the Contract Price, whether
provided by contractors or suppliers of Kirco or those engaged directly by
Owner.
Kirco may exercise this option to purchase at any time after the
expiration of such thirty (30) day period by delivering written notice of the
same to Owner. Closing of the purchase shall take place within thirty (30) days
after delivery of the foregoing notice to Owner, on a date to be selected by
Kirco; provided, if the amount of the Contract Price owing is in dispute, and
Owner has paid Kirco the undisputed portion of the Contract Price, the purchase
shall not occur until such dispute is resolved by agreement or a final
un-appealed judgment and Owner has failed to pay the balance of the Contract
Price thereby determined within thirty (30) days after such determination.
During the pendency of the dispute, Owner shall escrow with the title company
the disputed amount less any sums actually expended by Owner to discharge
mechanic's liens or to pay for work performed on the Project due to Kirco's
default. At the closing, Owner shall deliver to Kirco a warranty deed conveying
to Kirco good and marketable fee simple title to the Property, free and clear of
all liens and encumbrances except those matters set forth on the attached
Exhibit F ("Permitted Encumbrances") and those liens and encumbrances, if any,
caused or created by Kirco during the course of Development of the Property.
Owner shall pay all transfer taxes payable with respect to the deed and shall
also pay for and cause to be issued to Kirco at closing an ALTA form of owners
policy of title insurance, without standard exceptions, in the amount of the
Option Price.
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In connection with the exercise of the foregoing option to purchase the
Property, Kirco shall also have the option to require Owner to enter into a
lease, on Kirco's standard office lease from, for the entire Building for a
period of ten (10) years on a total net basis to Kirco (i.e., Owner, as tenant
under the lease, shall be obligated to pay all of Kirco's property taxes,
insurance premiums, maintenance and repair expenses and all other costs and
expenses customarily included in operating expenses and paid by tenants in total
net leases). The base rent for the first year of the lease term shall be
determined by multiplying the total Option Price (before credits to Kirco) by a
factor of eleven hundredths (.11). Base rent shall be increased on the first day
of each lease year thereafter by one percent (1%) of the base rent for the prior
year. Base rent and all operating expenses shall be paid in equal monthly
installments in advance throughout the term, and the lease shall contain other
provisions usual and customary for a lease of an office building.
b. Kirco's Default. If, following the commencement of
construction of the Building by Kirco pursuant to this Agreement, (i) Kirco
ceases work on the Building and other Improvements on the Property for a period
of fifteen (15) consecutive work days or thirty (30) days in the aggregate,
unless delayed by changes requested by Owner and stated in a signed change
order, weather conditions which cause a work stoppage of greater than eighteen
(18) days in the aggregate, strikes, fires and other casualties which damage the
Building, acts of God, war, insurrection, actions of terrorists or foreign
insurgents pursuant to Section 6 above, and if Kirco fails to re-commence the
work within five (5) days after Owner's written notice of default to Kirco; or
(ii) if Kirco fails to Substantially Complete construction by September 30,
2004, unless delayed by changes requested by Owner and stated in a signed change
order, weather conditions which cause a work stoppage of greater than eighteen
(18) days in the aggregate, strikes, fires and other casualties which damage the
Building, acts of God, war, insurrection, actions of terrorists or foreign
insurgents (the "Default Deadline"), then Owner shall have the right, but not
the obligation, to enter upon the Property, and Owner itself or through a new
general contractor take over the construction of the Building and other
Improvements and, for the purpose of completing the work, take possession of all
materials, equipment, tools, appliances and supplies belonging to or under the
control of Kirco and used or designated to be used in connection with the
development of the Property, and may finish the work by whatever method it may
deem expedient including having Kirco's contractors, subcontractors and
suppliers continue to perform under their contracts with Kirco or, if any of
Kirco's contractors, subcontractors or suppliers fails or refuses to perform
under their contracts for Owner, entering into a contracts with replacement
contractors, subcontractors and/or suppliers to complete the work. If Owner does
so proceed to take over the work, Owner shall pursue the work to completion and,
upon completion, the costs incurred by Owner in completing the work plus fifteen
percent (15%) of the costs so incurred shall be deducted from the balance of the
Contract Price. If the costs incurred by Owner to complete the work are less
than the balance of the Contract Price, the balance of the same shall be paid to
Kirco up to the total amount of Kirco's "general conditions" costs and out of
pocket costs and fees and the balance, if any, shall be retained by Owner. If
the costs incurred by Owner to complete the work plus fifteen percent (15%) of
such costs are greater than the balance of the Contract Price, the difference
shall be paid by Kirco to Owner upon completion of all of the work.
In the event of litigation or other enforcement proceedings between the
parties as a result of any default or alleged default by either party hereunder,
the prevailing party shall also be entitled to receive from the other party all
costs and expenses incurred,
13
including attorneys' fees, in connection with the enforcement of this Agreement,
as well as costs and attorneys' fees incurred in the collection of such amounts.
19. NOTICES. The notices required or referred to in this Agreement
shall be sufficient if personally delivered or sent by first class mail, return
receipt requested with postage prepaid, by facsimile with confirmation of
receipt or by recognized overnight courier service to the parties at the
addresses shown above or at such other address as either party shall designate
in writing to the other. If mailed, delivery shall be deemed complete on the
earlier of the date on which the notice is receipted for in writing or the
second business day following the date of mailing. Notice to Kirco shall be
addressed to the attention of A. Xxxxxxx Xxxxxxx, President. In addition, a copy
of all notices to Kirco shall be sent to Kirco's attorney, X. Xxxxxxx Green,
Esquire, at Butzel Long, 000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000, and Notice to Owner shall be addressed to Owner at 00000
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: General Counsel,
and a copy of all notices to Owner shall be sent to Owner's attorney, Xxxxxx X.
Xxxxxxx, Esquire, at Xxxxxxxx Xxxxxxx and Xxxxxx, 00000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxx Xxx, Xxxxxxxx 00000. Failure to provide a copy of any notice to the
attorney for the addressee shall not invalidate notice otherwise properly
served.
20. AUTHORIZED REPRESENTATIVES. Any consent, approval,
authorization or other action required or permitted to be given or taken under
this Agreement by Owner or Kirco, as the case may be, shall be given or taken by
one or more of the authorized representatives of each. For purposes of this
Agreement: (1) the authorized representatives of Owner shall be: Xxxxxx X.
Xxxxx, Xxxxxx X. Xxxxxx, Xxxxx Xxxxxx or Xxxxxxx Xxxxx and (2) the authorized
representatives of Kirco shall be any one or more of the following: A. Xxxxxx
Xxxxxxx XX and Xxxxxxxx Xxxxx III. Either party hereto may from time to time
designate other or replacement authorized representatives to the other party
hereto. The written statements and representations of any authorized
representative of Owner or Kirco shall be binding upon the party for whom such
person is an authorized representative, and the other party hereto shall have no
obligation or duty whatsoever to inquire into the authority of any such
representative to take any action which he proposes to take.
21. KIRCO'S COMPLETION OBLIGATIONS. Upon the completion of the
work and final payment of the Contract Price, Kirco shall execute and/or deliver
to Owner and shall be otherwise responsible for the following:
a. A xxxx of sale for any personal property included within the
Plans and Specifications that does not otherwise become affixed to the Property
b. All written warranties from any manufacturer to be assigned to
Owner pursuant to this Agreement, to the extent Kirco has received the same from
the manufacturers prior to closing, together with an assignment of the same to
Owner, and any manufacturer's warranty received by Kirco after final payment
shall be delivered upon receipt along with an assignment of the same by Kirco to
Owner;
c. Waivers of lien from Kirco and from contractors of Kirco, and
for any subcontractor or supplier that has served on Kirco a notice of
furnishing, as follows: Final unconditional lien waivers for work that has been
completed and paid for prior to final payment, final conditional lien waivers
for work that has been completed prior to final
14
payment but which has not been fully paid for prior to final payment, partial
unconditional lien waivers to the extent of payment prior to final payment for
work that has not been completed prior to final payment, and such other
information and assurances as may be required by the title company to issue its
policy of title insurance to Owner and/or Owner's Mortgage lender without the
standard construction lien exception;
d. A Final Payment statement and such other documents or
activities as shall be reasonably requested by Owner or required by the title
company in order to issue the final policy of title insurance to Owner's
Mortgage lender; and
e. The "punchlist" and/or Kirco's other standard completion
inspection documents pertaining to incomplete or defective inspection items to
be completed by Kirco, to the extent the inspection has been completed prior to
final payment, completion of Kirco's standard work letter or work order for
punchlist items, and escrow of funds for the completion of punchlist items,
subject to the limitations on Kirco's obligation to escrow funds as set forth in
Section 14 above, and execution of an appropriate escrow agreement with respect
to those funds.
f. Obtaining a certificate of occupancy sufficient to permit
occupancy of the Building, and the subsequent issuance a final certificate of
occupancy upon completion of any items required by the municipality for the
issuance of the final certificate of occupancy.
22. OWNER'S COMPLETION OBLIGATIONS. Upon the completion of the
work and final payment of the Contract Price, Owner shall execute and/or deliver
to Kirco and shall be otherwise responsible for the following:
a. Payment in full of the Contract Price, plus or minus the net
of price adjustments, and any other sums Owner is required to pay at final
payment pursuant to the terms of this Agreement; and
b. The Final Payment statement and such other documents or
activities as shall be reasonably requested by Kirco or required by the title
company.
23. BROKERAGE FEES. Kirco and Owner each represent to the other
that they have not dealt with any real estate brokers in connection with this
transaction, and each party agrees to indemnify and hold the other party
harmless from any liability for any brokerage fees or commissions which may
become due and payable to any broker, with whom the indemnifying party has
dealt.
24. NO ASSIGNMENT. Owner shall not assign, set over or transfer
this Agreement or any of Owner's rights or interest hereunder without the prior
written consent of the Kirco, and at Kirco's option any such purported
assignment shall be void and of no effect. The foregoing notwithstanding, Owner
may assign this contract without Kirco's consent to a person or entity who
purchases or makes a Mortgage loan secured by the Property, provided that the
creditworthiness of such assignee is acceptable to Kirco and such assignee
expressly assumes Owner's obligations hereunder, and provided further that Owner
shall not be relieved of any liability or obligation to Kirco hereunder in the
event of such an assignment. Kirco's rights and obligations hereunder shall not
be assignable; provided Kirco may delegate its duties to an entity owned by or
under common control with Kirco.
15
25. ENTIRE AGREEMENT. This Agreement, together with the
attachments hereto, constitutes the entire agreement between Kirco and Owner and
supersedes any and all prior written or oral agreements and any contemporaneous
oral agreements between the parties. No amendment or modification of this
Agreement shall be effective or binding upon the parties hereto unless set forth
in writing and signed by all of the parties hereto.
26. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, representatives,
successors or permissible assigns.
27. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
28. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
29. AUTHORIZATION. Both Owner and Kirco, and the undersigned on
behalf of the respective parties, hereby represent and warrant that the
undersigned are duly authorized to enter into this Agreement on behalf of their
respective parties and to consummate all transactions contemplated pursuant to
the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
WITNESSES: OWNER:
MEADOWBROOK INSURANCE GROUP,
INC., a Michigan corporation
By: __________________________________
Its: _________________________________
KIRCO:
KIRCO DEVELOPMENT LLC, a
Michigan limited liability company
By: __________________________________
Its: _________________________________
16
EXHIBIT A
TO
DEVELOPMENT AGREEMENT BETWEEN
KIRCO DEVELOPMENT LLC
AND
MEADOWBROOK INSURANCE GROUP
LEGAL DESCRIPTION
17
EXHIBIT B
TO
DEVELOPMENT AGREEMENT BETWEEN
KIRCO DEVELOPMENT LLC
AND
MEADOWBROOK INSURANCE GROUP
PRELIMINARY PLANS
[SEE ATTACHED]
18
EXHIBIT C
TO
DEVELOPMENT AGREEMENT BETWEEN
KIRCO DEVELOPMENT LLC
AND
MEADOWBROOK INSURANCE GROUP
SCOPE OF WORK
[SEE ATTACHED]
19
EXHIBIT D
TO
DEVELOPMENT AGREEMENT BETWEEN
KIRCO DEVELOPMENT LLC
AND
MEADOWBROOK INSURANCE GROUP
SITE PLAN
[SEE ATTACHED]
20
EXHIBIT E
TO
DEVELOPMENT AGREEMENT BETWEEN
KIRCO DEVELOPMENT LLC
AND
MEADOWBROOK INSURANCE GROUP
PLANS AND SPECIFICATIONS
[TO BE ATTACHED]
21
EXHIBIT F
TO
DEVELOPMENT AGREEMENT BETWEEN
KIRCO DEVELOPMENT LLC
AND
MEADOWBROOK INSURANCE GROUP
PERMITTED ENCUMBRANCES
[SEE ATTACHED]
22
