Common use of Duties of the Developer Clause in Contracts

Duties of the Developer. 3.1 The Developer shall assist Owner in its efforts to cause the Improvements to be completed in a timely manner in accordance with the requirements of the Project Schedule, the Development and Construction Budget, and the Approved Plans. The services that the Developer shall perform, or cause to be performed, include, but are not limited to, the following: (i) The Developer shall assist the Owner in the selection of, negotiation of contracts with, and review of the services of, all architects, engineers, designers and other experts and consultants (collectively, the “Consultants”) necessary for the provision of architectural, engineering, design and other services for the Project, including the preparation of detailed plans, specifications, completion schedules, budgets and drawings (herein, as approved in writing by the Owner called the “Approved Plans”). (ii) The Approved Plans, the Development and Construction Budget (as defined herein) and the Project Schedule (as defined herein) shall each be approved in writing by Owner. (iii) The Development and Construction Budget shall set forth in reasonable detail the steps necessary to accomplish the completion of the Project in accordance with the Approved Plans and shall set forth the overall Project Completion Cost. The Development and Construction Budget described in this Section 3.1(a) shall be referred to herein as the “Development and Construction Budget.” The Developer shall assist Owner in preparing the Development and Construction Budget and in creating a schedule to be approved in writing by the Owner, based upon the Approved Plans and the Development and Construction Budget, setting forth anticipated project milestones and the target Completion Date (the “Project Schedule”). (b) The Developer shall assist the Owner in the selection of contractors (the “Contractors”) for the Project, and in the negotiation of maximum fixed price construction contracts as determined by Owner (the “Construction Contracts”) for the Project, and Developer shall assist the Owner in supervising and coordinating the services of the Contractors. (c) The Developer shall assist Owner in its efforts to administer and use all reasonable efforts to enforce all obligations of the Contractors, the Consultants, and other contractors under their respective contracts and shall advise Owner of any non-compliance by these parties on a timely basis. Developer shall maintain appropriate records with respect thereto. (d) The Developer shall monitor all development and construction work as it progresses, shall review the work of subcontractors and materialmen by the Contractors, the Consultants, testing agents, and other consultants and review their inspection reports, shall assist Owner in its efforts to expedite completion of the Project as economically and as efficiently as possible, but in conformity with the Approved Plans, the Construction Contract and other contract documents, the Development and Construction Budget, and the Project Schedule. (e) The Developer shall assist Owner in its efforts to require the Contractors, or other relevant contractors, to correct any defects in the construction of the Project, or in the installation, quality, or operation of any items, equipment, or fixtures therein. (f) The Developer shall hold periodic meetings not less frequently than once every two weeks, with the Owner and any of its respective representatives, to review the progress of development and completion of the Project. (g) The Developer shall consult with the Consultants and the Contractors and, in connection therewith, shall review conceptual designs and plans and specifications during development, and, after consultation with Owner, advise on site use and improvements, and provide recommendations on relative construction feasibility and factors relating to cost, all for the purpose of assisting Owner in its efforts to keep the progress of the development of the Project within the costs and timetable established by the Development and Construction Budget and the Project Schedule and for the purpose of assisting Owner in its efforts to obtain and maintain the quality of the construction of the Project established by the Approved Plans. (h) The Developer shall use reasonable efforts to (singly, or with the assistance of the Consultants or the Contractors) assist the Owner in its efforts to obtain all necessary approvals, licenses, permits, certificates, and authorizations from all governmental authorities having jurisdiction over the Project in connection with the development and the completion and occupancy of the Project; and, Owner shall cooperate with Developer in connection with any necessary requirements applicable to Owner and related to obtaining such items. (i) The Developer shall, in conjunction with the Consultants and the Contractors, obtain and provide the Owner with information in connection with any potential or anticipated Force Majeure and any proposed change, revision, supplementation, or updating of the Approved Plans, Development and Construction Budget, or Project Schedule. Such information shall, among other things, include updating estimates of the cost of development and timing of the completion of the Project, including a trade payment breakdown, and shall indicate, on a cash basis, the anticipated sources of funds to finance such development and completion and the anticipated dates when such funds will be required. Any and all change orders, regardless whether or not resulting from any such proposed revisions, shall only be effective with the written approval of the Owner. (j) The Developer shall prepare and update, or assist the Owner in preparing and updating, cash flow projections and capital and income and expense budgets for the Project, which shall include proposed revisions and updates if reasonably necessary. All capital and income and expense budgets and all cash flow projects, together with all revisions and updates thereto, shall be subject to the written approval of Owner. (k) The Developer shall promptly advise the Owner, of any known delays or anticipated delays in meeting the Project Schedule or the Development and Construction Budget and the reasons therefore. (l) The Developer shall consult with the Owner regarding recommended insurance coverages and the terms of any policies. Owner shall procure and maintain in effect, or cause to be procured and maintained in effect, at all times during the course of construction, on behalf of the Owner and any lender, worker’s compensation insurance, comprehensive general liability insurance in all risk form, property damage insurance, and fire and extended coverage insurance carried in builder’s risk form on a completed value basis, all of which insurance shall be effected under valid and enforceable policies, from such insurers, in such forms, and in such amounts as shall be approved by the Owner, naming Developer as an additional insured. The Developer shall also assist the Owner in its attempts to require the Consultants and the Contractors to carry errors and omissions coverage acceptable to the Owner in addition to such Builder’s Risk all risk coverages required, naming Developer as an additional insured. (m) The Developer shall promptly notify the Owner of any suit, proceeding, or other action commenced or taken against or threatened all or any portion of the Project or against the Owner of the Developer which may in any way be related to the Project or any portion thereof. 3.2 The Developer shall assist the Owner in its efforts to place Eighteen Million Dollars ($18,000,000) in financing, on terms and conditions satisfactory to Owner, for the Project (the “Financing”). (a) The Developer shall assist Owner in its efforts to locate the Financing from commercial banks and other lending institutions (“Project Financing”) and/or from the Commonwealth of Pennsylvania in a manner more particularly described in that certain letter from the Department of Community and Economic Development to Owner dated October 16, 2009 (“Public Financing”). (b) The Developer shall assist Owner in its efforts to deliver to Owner commitments for the Financing (the “Commitments”) on or before December 31, 2009. (c) The amount of the Financing may be amended with the written consent of the parties; such consent shall not be unreasonably withheld where the reason for such amendment is to reflect actual or projected deviations from the projected costs associated with developing the Property and building the Facility and any and all activities associated therewith and such amendment will not materially impact the dates of Factory Access or issuance of a Certificate of Occupancy. 3.3 The Developer shall use reasonable efforts to accomplish the completion of the Project in accordance with the Approved Plans and at a cost within the Development and Construction Budget on or before the dates set forth in the Project Schedule. 3.4 Neither party shall be liable for damages or have the right to terminate this Agreement for any delay or default to the extent caused by an event of Force Majeure. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost because of the event of Force Majeure. Notwithstanding the foregoing, Owner may terminate this Agreement without any further obligation to Developer if the Commitments are not received on or before December 31, 2009, provided however, to the extent negotiations with a specific lender began prior to December 31, 2009, are actively and continuously occurring with the consent and participation of Owner, then such date shall be extended during the period of such active and continuous negotiation and Owner’s right to terminate shall expire if Commitments are received as a result of such active and continuous negotiation.