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EXHIBIT 10.14
[TPI GROUP 2]
DEVELOPMENT AGREEMENT
(CLARE BRIDGE OF BRICK TOWNSHIP)
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the 31st day
of March, 1999, by and between ALTERNATIVE LIVING SERVICES, INC., a Delaware
corporation ("Developer"), and THIRD PARTY INVESTORS I, L.L.C., a Delaware
limited liability company ("Owner").
WHEREAS, pursuant to a Purchase and Sale Agreement dated as of March
31, 1999 ("Purchase Agreement"), Owner has purchased the right to acquire,
develop and own an assisted living project (the "Facility") to be located in
_____________, _____________ County, _______________, as more particularly
described on Exhibit A (the "Site"; together with the Facility, the "Project");
WHEREAS, Owner wishes to engage Developer for certain development,
design and construction services with respect to the Facility, and Developer
desires to provide such services, pursuant to the terms set forth herein; and
WHEREAS, Owner and Developer desire herein to amend and restate the
Original Development Agreement is its entirety as of said effective date.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
APPOINTMENT OF DEVELOPER AND TERM
1.1 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 Project.
1.2 Term. This Agreement shall begin upon execution by the parties and,
unless sooner terminated as provided in this Agreement, continue until the date
that the Facility is issued a certificate of occupancy (the "Term").
ARTICLE II
DUTIES AND RIGHTS OF DEVELOPER
2.1 Approval of Site. Developer has presented the Site to Owner for
approval, and Owner's execution of this Agreement evidences Owner's approval of
the Site subject to the terms and conditions of this Agreement. Developer shall
provide to Owner with respect to the Site, upon its request: (i) title and
survey information, and (ii) a Phase I environmental site assessment.
2.2 Site Development Services. If as of the date hereof, the Site is
not properly zoned for the construction and operation of the Facility, then
Developer shall seek to obtain any required rezoning for the Site to a zoning
classification (or approved special exception or similar waiver) such that the
Facility may lawfully be constructed on the Site.
2.3 Project Budget Services. Developer shall provide budgeting services
as set forth in this Section 2.3. Developer has provided to Owner a detailed pro
forma budget for the development and
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construction of the Project, 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 parties hereby specifically
acknowledge that the pro forma budget includes a line item for working
capital/operating loss reserves and a contingency amount equal to five percent
(5.0%) of all known costs relating to the development, design and construction
management services provided hereunder in respect of the Facility. Developer
hereby represents that only the direct costs and expenses incurred by it and its
affiliates in the development and construction of the Project are included in
the pro forma budget, taking into account for this purpose as an element of said
direct costs all compensation of whatever nature payable to employees or other
personnel of ALS and its affiliates attributable to time spent directly on the
development and construction of the Project (including, without limitation, any
employee benefits provided to such personnel, whether or not taxable, on a
current basis or otherwise, as compensation to said personnel). Once approved by
Owner (with any revisions thereto mutually agreed upon by Developer), such pro
forma budget shall constitute the "Development Budget" for all purposes hereof
and shall be attached hereto as Exhibit "B" and thereupon become a part hereof.
The Development Budget shall be subject to the review and approval of the
construction lender for the Project. If the construction lender requires any
revisions to the Development Budget, then Owner and Developer shall cooperate in
making such revisions which shall be subject to their mutual approval, not to be
withheld unreasonably.
2.4 Design and Construction Management Services. Developer shall
provide the following design and construction management services to Owner,
except to the extent that Owner determines such services are no longer necessary
to be provided in light of the stage of development of the Project as of the
date hereof:
a. Submit to Owner for Owner's review and approval overall design plans
and schematic drawings. After approval of such preliminary plans and drawings,
Developer shall oversee the preparation of final architectural and construction
plans, which shall be submitted to Owner for its review and approval;
b. Provide and/or coordinate with third-party architects and engineers
all necessary architectural services for the Facility, including architectural,
structural, mechanical, electrical and plumbing/fire protection engineering
services;
c. Coordinate preparation of all design development documents,
including all architectural, structural, electrical, mechanical and plumbing
plans and specifications necessary for the construction of the Facility;
d. Coordinate all civil engineering services required for the Facility
as well as all services necessary for approval, acceptance and securing
construction permits from appropriate federal, state and/or local governmental
authorities having jurisdiction over the Site;
e. 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;
f. Develop and review critical path schedules and updates and assist
the general contractor in developing the project schedule and updates;
g. Discuss and review with the general contractor its means and methods
of construction;
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h. 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;
i. Perform 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
regarding change orders, extensions of time and increases or decreases in the
contract sum;
j. Monitor and evaluate construction progress and make recommendations
to the general contractor and Owner as deemed necessary;
k. Assist in the resolution of critical issues impacting the progress
of work, and monitor architectural supplemental instructions and requirements
for information;
l. Provide quality control and the early detection of defects in
workmanship;
m. Review punch list items and assist in the close-out of the project;
and
n. Coordinate opening date for the Facility with Owner and the
Facility's managing agent (the "Manager").
2.5 Expenses. Owner shall provide any and all funds needed for
Developer to perform the development, design and construction management
services, as set forth in the Development Budget, and Owner shall be solely
responsible to all third-parties (i.e., engineers, attorneys and consultants) as
set forth in the Development Budget. Notwithstanding the foregoing, Developer
shall be authorized to advance, on Owner's behalf, all funds needed for
Developer to perform the development, design and construction management
services hereunder. Owner shall reimburse Developer for all Project Costs
(hereinafter defined) incurred in conjunction with the development and
construction of the Project. Developer acknowledges that all Project Costs
incurred prior to the Owner's acquisition of the Site were paid to Developer at
the closing of the Purchase Agreement, with the exception of any adjustment with
respect to the "Estimated Expenses" component of the Purchase Price paid by
Owner for the Facility pursuant to Section 2 of that certain Agreement for
Purchase and Sale of even date herewith (the "Purchase Agreement"). For purposes
of this Agreement, "Project Costs" means all such items of cost and expense
incurred by Developer in connection with the development, construction and
leasing-up of the Project, including without limitation (i) all items of cost
that Developer would normally capitalize as a component of the cost of a project
together with related preopening and start-up costs and losses; (ii) Developer's
direct cost (including costs of employees assigned to such project) associated
with performing market research, development and construction management
services, professional fees paid to third parties, and amounts paid under
construction contracts (including costs related to the general conditions of a
construction projection; (iii) to the extent Developer shall advance funds
toward the development, construction or leasing-up of the Project, the
Developer's imputed construction period interest; (iv) fees and expenses related
to debt financing for the Project; (v) contingency reserves and (vi) the
Development Fee (hereinafter defined); but only to the extent such items of cost
and expense are not payable pursuant to the Management Services and Consulting
Agreement between Owner and Developer relating to the management of the Project.
Project Costs incurred by the Developer shall be paid by Owner to Developer
within ten (10) days of Developer submitting its invoice to Owner detailing
same.
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2.6. Guarantee of On-Budget Completion. As soon as practicable after
execution hereof, Developer will provide Owner a guaranty of on-budget
completion, reasonably acceptable in form to Owner, related to the aggregate
Project Costs actually incurred for the Project and the seven (7) other projects
acquired by Owner from Developer pursuant to the Purchase Agreement and with
respect to which Developer has entered into a development agreement with Owner
similar to this Agreement (the "Other Projects"), which guaranty shall include
commercially customary exclusions and mechanisms by which Owner and Developer
may approve project change orders for the Project and such other projects.
ARTICLE III
DEVELOPER'S COMPENSATION
3.1 Development Fee. For the development, design and construction
management services provided pursuant to this Agreement, Developer shall be paid
a fee equal to seven percent (7%) of the Development Budget (the "Development
Fee"), which shall be deemed earned by Developer and payable by Owner as
follows:
(1) Upon completion of market approval, Site zoning and
permitting and closing of the Site acquisition (land closing), an
amount (the "Initial Payment") equal to five percent (5%) of the then
projected aggregate Project Cost based on the Development Budget (or if
such budget is not then finalized, as estimated in good faith by
Developer); and
(2) Upon the issuance of a certificate of occupancy for the
Facility, a final payment equal to (a) seven percent (7%) of the
aggregate Project Costs actually incurred in connection with the
Project less (b) the Initial Payment already paid pursuant to clause
(1) of this Section 3.1.
Current estimates of the Development Fee payable at the above-respective times
are set forth on Exhibit "C" hereto (along with similar estimates for the Other
Projects).
ARTICLE IV
TERMINATION
4.1 Termination Upon Opening. This Agreement shall terminate on the
date the Facility is issued a certificate of occupancy, unless sooner terminated
pursuant to the provisions hereof, provided that Owner's obligation to pay the
Development Fee and Developer's guaranty obligation (if any) under Section 2.6
shall survive such termination.
4.2 Termination for Default. In the event that either Owner or
Developer is in default under any material term or condition of this Agreement
or any other agreement between the Owner and Developer 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 ten (10) days' written notice; provided, however, that Owner may
cancel and terminate this Agreement immediately upon written notice to ALS in
connection with the sale of the Facility to a third party by reason of a
financing default of ALS as set forth in Section 3.c of the Purchase Rights and
Financing Agreement dated as of March 31, 1999, so long as Owner first repays
all indebtedness to Developer set forth in such provision as a condition to such
termination and otherwise fulfills any other conditions set forth therein. 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.
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4.3 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.
4.4 Suspension of Performance. If development of the Facility
contemplated under this Agreement is suspended for any reason described in
Section 5.4 below, including, without limitation, any cause beyond the
reasonable control of the parties hereto, then upon written notice by the Owner
to Developer (the "Notice of Suspension"), Owner may at its option (i) terminate
this Agreement without further liability to either party or (ii) suspend
Developer's performance of its obligations under this Agreement for a period of
ninety (90) days. Owner may terminate such suspension and re-commence
development of the Facility by written notice to Developer whereupon Developer
shall re-commence performing its obligations under this Agreement within thirty
(30) days of receipt of such notice.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 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.
5.2 Proprietary Information. Any and all architectural, structural,
engineering or other construction drawings, designs, systems and methodologies
furnished by Developer or its agents to Owner in connection with the design or
construction of, or otherwise integrated in, the Facility ("Proprietary
Information") are proprietary and are the property of Developer. Owner shall not
use any Proprietary Information or cause to have any such Proprietary
Information disseminated to any third party without the written consent of
Developer; provided, however, that with respect to any such Proprietary
Information provided to Owner or integrated in the Facility, the Developer
hereby grants to Owner a non-exclusive, perpetual, transferable license to use
such Proprietary Information solely in conjunction with the ownership and/or
operation of the Facility at the Site. 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 5.2. 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 5.2.
5.3 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 Owner and 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 Owner, which objectives
include, without limitation, the maximization of profit and the development and
operation of the Facility as a high-quality commercially successful assisted
living community.
5.4 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,
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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.
5.5 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 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.
5.6 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.
5.7 Indemnification.
a. Owner and Developer each agree that the other shall be and is
indemnified, defended, exonerated, and held harmless of, from and against any
claim, loss, cost, damage, expense or other liability arising out of performance
or failure to perform under this Agreement, excepting only liability
attributable to negligence, willful misconduct or willful, wanton or reckless
failure by the other 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.
5.8 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.
5.9 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 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.
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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:
If to ALS:
ALTERNATIVE LIVING SERVICES. INC.
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: 414/000-0000
Fax: 414/000-0000
With a copy to:
Xxxxxx & Xxxxxx LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxx, Esq.
Telephone: 404/000-0000
Fax: 404/000-0000
If to Owner:
Third Party Investors I, L.L.C.
c/x XxXxxxxx Investments, Inc.
000 Xxxxx Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: 616/000-0000
Fax: 616/000-0000
With a copy to:
Xxxxx & Xxxxx
000 Xxxxxx, X.X., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telephone: 616/000-0000
Fax: 616/000-0000
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.
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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 State of Wisconsin without regard to conflict of laws
principles, and shall be enforced in the state and federal Courts located in the
State of Wisconsin. 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.
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 xxxxx. 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.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute and deliver this Agreement as of the date first above
written.
DEVELOPER:
ALTERNATIVE LIVING SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Title: Senior Vice President
OWNER:
THIRD PARTY INVESTORS I, L.L.C.
By: /s/ Xxxx Xxxxxxx
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Title: Authorized Agent
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Exhibit C
Development Fees
(TPI Group 2)
NJ NJ FL AZ AZ CA
Brick Ocean Xxxxxxxx Cape Coral Scottsdale I Scottsdale II Bakersfld I
Clare Bridge Sterling House Clare Bridge Clare Bridge Crossings Sterling Cottage
Development Fee
5% Fee - At Land Closing 295,445 192,599 189,080 - - 194,154
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2% Fee - At Certificate 118,178 77,039 75,632 - - 77,662
of Occupancy
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TOTAL DEVELOPMENT FEE 413,623 269,638 264,712 XXX XXX 271,815
=======================================================================================================================
CA NV
Bakersfld II Tropicana TOTAL
Sterling House Clare Bridge
Development Fee
5% Fee - At Land Closing 165,907 291,218 1,328,403
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2% Fee - At Certificate 66,363 116,487 531,361
of Occupancy
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TOTAL DEVELOPMENT FEE 232,270 407,705 1,859,764
================================================================================
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EXHIBIT LIST
Exhibit A - Description of Site
Exhibit B - Development Budget
Exhibit C - Development Fee
