TURNKEY CONSTRUCTION CONTRACT
Between
CAREPLEX OF CRAGGANMORE, INC.
and
THE CRAGGANMORE ASSOCIATES LIMITED PARTNERSHIP
TURNKEY CONSTRUCTION CONTRACT
This Agreement is by and between CAREPLEX OF CRAGGANMORE, INC., a Delaware
corporation, with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Contractor"), and THE CRAGGANMORE ASSOCIATES LIMITED PARTNERSHIP, a
Connecticut Limited Partnership, with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (the "Owner") and is entered into for the purpose of
reducing to a formal writing all of their understandings with respect to the
construction of a proposed assisted living facility to be comprised of 84 to 96
units ("Facility") to be located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(the "Premises").
In consideration of the undertakings of each of the parties to the other:
IT IS AGREED:
ARTICLE I
Representations
The parties make each of the following material representations:
Section 1.1 - Title to Premises. Prior to April 30, 1996, the Owner (or its
nominee) shall own good, record and marketable title in fee simple to the
Premises consisting of approximately thirteen and eight-tenths (13.8) acres of
land as more fully described in Exhibit "A". Exhibit "A" and each of the other
Exhibits referred to in this Agreement shall be incorporated into this Agreement
by such reference as if fully set forth in this Agreement. The Premises shall be
free and clear of any and all encumbrances which would impair the construction
or operation of the Facility except as set forth on Exhibit "A-1", in the
Contractor's sole and absolute discretion, and free of any hazardous wastes or
materials except as set forth on Exhibit "A-2".
Section 1.2 - Encumbrances.
(a) Owner and Contractor acknowledge that the Premises may be subject to
easements, assessments, conditions, contracts, rights, claims,
encroachments, restrictions and other encumbrances as would be
disclosed on a title report (the "Existing Encumbrances"), to physical
conditions which would be disclosed by a survey of the Premises and to
those easements, conditions, contracts, rights, licenses,
encroachments, restrictions and other
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encumbrances resulting from Contractor securing regulatory,
development and construction approvals for the Facility and
attendant site improvements. Owner and Contractor each represents to
the other that it has reviewed or shall review prior to its purchase
of the Premises the boundary survey and the topographical survey of
the Premises and has made, or shall make prior to its purchase of the
Premises a careful physical inspection of the Premises to satisfy it
as to the site characteristics and attributes in all respects. The
Owner agrees to accept the Facility subject to the Existing
Encumbrances, the mortgages described herein, to the physical
conditions which exist and as such conditions may change during the
course of construction and to those easements, conditions, contracts,
rights, licenses, encroachments, restrictions and other encumbrances
resulting from Owner securing regulatory, development and construction
approvals for the Facility and attendant site improvements, provided
that the same do not interfere with the Owner's operation of the
Facility.
(b) Concurrently with the execution of this Agreement, Owner shall provide
Contractor with copies of all engineering, architectural and any other
plans, studies and surveys, title reports, environmental assessments,
appraisals and other information regarding the Premises or the
Facility which are in Owner's possession, custody or control.
(c) The Owner represents that to the best of its knowledge the Premises
have only the apparent site and off-site conditions and problems, if
any, as set forth on Exhibit "B" which require the implementation of
the measures if any, as set forth on Exhibit "B"
(d) Commencing on the date Contractor elects to commence construction in
accordance with this Agreement, Owner shall provide Contractor with
full possession and complete control of the Premises for purposes of
performing Contractor's obligations hereunder.
Section 1.3 - Permits and Approvals.
(a) Contractor represents that it shall use its reasonable best efforts to
obtain, prior to the date of the Closing, all state, federal, county
and municipal land use approvals and permits, licenses, easements, and
sewer agreements which may be needed in order to permit the
construction and operation of the Facility on the Premises (the
"Approvals"). Contractor covenants to
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diligently use its reasonable best efforts to obtain all of the
Approvals in an expeditious manner. In the event the Contractor is
unable to obtain the Approvals, the Contractor shall have no liability
whatsoever to the Owner, or any other party and at the Owner's or the
Contractor's option, this Agreement shall be terminated without
recourse to any party thereto at law or in equity.
(b) For the sole purpose of permitting Contractor to construct the
Facility, the Owner grants to the Contractor, to the extent required
by Contractor in order that the purpose of this Agreement be
effectuated, the rights under the Approvals and any other grants of
rights, permits, approvals, or licenses, which may be necessary to
complete the performance of the Contractor's obligations hereunder;
provided, however that no transfer or assignment of any of the
foregoing shall occur which is prohibited by applicable law or the
respective terms thereof.
Section 1.4 - Documentation. The Owner shall provide or obtain construction
and permanent financing for the Premises, the Facility and the Personal Property
(as defined herein) ("Project Loan") which shall be sufficient, together with
the Owner's equity contributions (which shall in no event exceed ten percent
(10%) of the Contract Price), to pay the full amount of the Contract Price (as
defined herein). The Owner covenants that it will provide fully and in a timely
fashion all reasonable documentation required by Owner's lender in connection
with the Project Loan. Such documentation includes, but is not limited to, all
zoning and plan approvals; all utility letters indicating positive availability
of service; inventory of concessions made to any or all municipal bodies; site
plan; title binders, and all other regulatory body approvals. Owner also
covenants that it will, in a timely manner, provide whatever financial or other
information Owner's lender might reasonably require in connection with
Contractor's applications for financing for the construction of the Facility and
as required by such lender in connection with the Project Loan. Owner will use
its reasonable best efforts to pursue its application for construction and
permanent financing for the Facility.
Section 1.5 - Other Agreements. The Owner and the Contractor each
represents to the other that neither entering into this Agreement nor performing
its respective obligations hereunder will violate any other agreements or
documents by which it may be bound.
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Section 1.6 - Utility Services. Owner represents that, to the best of its
knowledge, all utility services required to construct and operate the Facility
(including public water, sewer and electricity) are currently available to the
Premises in the capacities required to operate the Facility. No work need be
performed by or on behalf of Contractor to make such utilities available to the
Premises for the construction or operation of the Facility, other than
connecting the Facility's waste disposal line to the public sanitary sewer line.
Owner represents, warrants and covenants that the public sanitary sewer line is
available for hook-up no more than one hundred (100) feet from the boundary line
of the Premises. Copies of letters from the providers of such utility services
confirming such availability are annexed hereto as Exhibit "C".
Section 1.7 - Good Standing of Contractor. Contractor represents that it is
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Contractor represents that it is empowered and authorized to
execute, deliver and perform its obligations under this Agreement, and, upon
such execution and delivery and subject to the conditions subsequent set forth
in Section 5.1, this Agreement shall be valid, binding and legal obligation of
the Contractor, enforceable in accordance with its terms and duly authorized by
a vote of its Board of Directors in compliance with its certificate of
incorporation and bylaws and all applicable laws of the State of Delaware.
Section 1.8 - Good Standing of Owner. Owner represent that it is duly
organized and validly existing under the laws of the State of Connecticut. Owner
represents that it is empowered and authorized to execute, deliver and perform
its obligations under this Agreement, and, upon such execution and delivery and
subject to the satisfaction of the conditions subsequent set forth in Section
5.1, this Agreement shall be valid, binding and legal obligation of the Owner,
enforceable in accordance with its terms and duly authorized by a vote of its
General Partner in compliance with its Limited Partnership Agreement and all
applicable laws of the State of Connecticut.
ARTICLE II
Construction of the Facility
Section 2.1 - Control of Construction. Subject to the express provisions
contained herein, it is the intention of this Agreement that Contractor shall
have sole, complete and absolute authority and discretion to decide any and all
issues pertaining to the construction of the Facility, including, without
limitation, the expenditure of funds, the incurring of costs and
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all of the other matters referred to herein; so long as the same are in
compliance with the Approvals and all applicable laws.
Section 2.2 - Architectural Services. As a condition precedent to this
Agreement, the Contractor shall have reviewed, approved and adopted all drawings
and plans for the Facility prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Architect")
("Basic Plans"). A true, accurate and complete copy of the Basic Plans is
attached hereto as Exhibit "D". The parties acknowledge that the Architect has
or will be retained by the Contractor. The Contractor will be responsible for
payment of the architectural fees due to the Architect, pursuant to the contract
with respect to the Facility dated July 24, 1995 as amended (said contracts and
amendments herein collectively, the "Architectural Contract"). The Owner
represents and warrants to the Contractor that a true, accurate and complete
copy of the Architectural Contract is attached hereto as Exhibit "E". The
Contractor shall not be responsible to the Owner, or any other party for any
errors, omissions, breaches or failures thereof, or any damages resulting from
the acts or omissions of the Architect. At the Contractor's option, the Owner
shall assign to the Contractor all of its right, title and interest in the
Architectural Contract and any and all architectural, engineering and other
contracts with respect to the Facility free of any claims other than outstanding
amounts owed under the Architectural Contract. In no event shall the Contractor
be obligated to assume any of said contracts.
Section 2.3 - Other professionals and Limited Assumed Obligations. The
Owner represents that it has not engaged any architects or any engineers,
lawyers, consultants, accountants, or other professionals with respect to the
Facility other than the Architect which Owner shall be obligated to pay. The
Owner neither assumes nor shall be obliged for any debts, liabilities or
obligations of Owner or related to the Premises or the Facility other than
payments due to the Architect under the Architectural Contract.
Section 2.4 - Plans and Specifications. The Contractor shall direct
Architect to prepare as promptly as possible, but, in any event, within thirty
(30) days after the execution of this Agreement, final plans, specifications and
a site plan (the "Final Plans") based on the Basic Plans. Such Final Plans shall
include without limitation the details set forth on Exhibit "D".
Section 2.5 - Construction. The Contractor shall construct the Facility
substantially in accordance with the Final Plans, subject to field changes and
minor design changes. All work shall be done in a good and workmanlike manner
and in accordance with the Executive Office of Health and Human Services
Standards, the Approvals, if any, and all applicable laws. The structure
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shall be designed as an assisted living facility to be licensed for the bed
complement described above and shall be constructed in accordance with the
requirements in effect on the date of this Agreement of federal, state and local
governmental agencies having jurisdiction of the Facility, including Life Safety
Code requirements imposed by the Federal Department of Health and Human
Services.
Section 2.6 - Personal Property.
(a) Exhibit "F" contains a representative list of the kinds of personal
property needed for the Facility (the "Personal Property"). Contractor
will furnish the specific items of Personal Property required for the
Facility, within the FFE Allowance. The allowance for the Personal
Property is Four Hundred Eighty-Seven Thousand dollars ($487,O00),
(the "FFE Allowance"), which FFE allowance shall be included in the
Contract Price (as defined below).
(b) In the event that the cost of the Personal Property furnished pursuant
to subsection (a) above shall exceed the FFE Allowance any such excess
shall be an increase adjustment to the Contract Price.
(c) In order to reduce the risk that the Personal Property will be
delivered prior to the Closing contemplated herein, Owner covenants
that it shall select such Personal Property as soon as practicable but
not later than approximately six (6) months prior to the estimated
date of Physical Completion.
Section 2.7 - Changes. Owner agrees that the Contractor shall also have
the right to make changes in the Final Plans and in the Personal Property if
required by any federal, state or local governmental authority having
jurisdiction or if required due to the unavailability of any construction
material or Personal Property. Owner shall be notified of any such changes or
substitutions in the Personal Property but Contractor shall have final authority
to make all decisions with respect to such changes; provided that such changes
result in construction, space, design, personal property, equipment and interior
and exterior design comparable in overall design and quality to that shown on
the Final Plans.
Section 2.8 - Commencement of Construction. Construction of the Facility
will start on or prior to the date which is 30 days after the satisfaction of
the last of the conditions set forth in Section 5.1 to be satisfied, or as soon
thereafter as weather and ground conditions permit but not later than June 30,
1996.
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Section 2.9 - Continuity of Construction. Construction, once undertaken,
shall proceed in a continuous and reasonably expeditious manner until Physical
Completion, as such term is defined in Section 2.10, is achieved, which shall
not occur later that eighteen (18) months after the completion of the foundation
for the Facility. Any delays caused by acts of God, fire, accident, casualty,
cessation of activity due to refusal to work by labor, or any other cause not
attributable to the failure of the Contractor to use reasonable care and due
diligence, however, shall be excused by the Owner, provided that Contractor
shall use its reasonable best efforts to minimize any such delays and shall
resume construction at the earliest possible time.
Section 2.10 - Completion of Construction.
(a) For the purposes of this Agreement, the terms "Physical Completion" or
"Physically Completed" shall mean the date on which the building and
improvements described and set forth in the Final Plans have been
completed and the Facility shall have been approved for temporary or
permanent occupancy by the local building inspector, and by the State
Fire ▇▇▇▇▇▇▇▇ in the event his approval is required. Physical
Completion shall be deemed to have been achieved notwithstanding that
any of such officials or agencies have issued a Punch-List listing
items requiring completion or correction, so long as such Punch-List
does not prevent or prohibit occupancy.
(b) Contractor will use its reasonable best efforts to notify Owner at
least ninety (90) days prior to the time Owner estimates that the
Facility will be Physically Completed, whereupon Owner will diligently
proceed to fulfill all other conditions necessary for licensure and
Owner will apply in a timely manner for all licenses and permits
necessary to commence operation of the Facility. After such notice
from Contractor, Owner, to the extent necessary to perform necessary
administrative activities may, so long as he does not interfere with
completion of construction, enter upon the Premises in an effort to
coordinate initial licensure with Physical Completion.
Section 2.11 - Owner's Noninvolvement. Owner shall have access to the
construction site while construction is in progress, but it shall have no
authority over Contractor, and
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shall not be empowered to interfere or become involved with construction or
require changes thereto, provided, however that Owner's management agent shall
have the right to view the construction in progress and shall have access to the
site for the purpose of equipping the Facility and preparing the Facility for
operation.
Section 2.12 - Punch-List. If, at any time after the Facility has been
Physically Completed, there exist any items requiring completion or correction,
then the Contractor agrees to use all reasonable diligence to complete or
correct the items so that each conforms to the Final Plans. The parties shall
make a Punch-List of the items requiring completion or correction. Each item on
the Punch List shall be assigned a reasonable value based upon the reasonable
cost of completion or correction of the same or such other value as may be
required by Owner's lender ("Punch-list Amount"). The Contractor shall give
its written undertaking to complete each such item within ninety (90) days after
transfer of title, further agreeing to permit Owner to complete any such items
at Contractor's expense if Contractor has failed to complete the same within the
ninety (90) day time period.
Section 2.13 - Work and Warranties. Upon completion of construction,
landscaping and installation of Personal Property, Contractor will assign to
Owner, in addition to any warranties created by law, all warranties and
guarantees received from designers, the Architect, subcontractors and suppliers
of equipment and furnishings, to the extent assignable. Contractor will agree to
remedy any defect in construction caused by poor workmanship or materials which
are brought to its attention by written notice within a period of one (1) year
from the date of the issuance of the Certificate of Occupancy. Aside from the
foregoing, Owner hereby waives and Contractor hereby disclaims all other express
and implied warranties of every kind or nature with respect to the Facility and
the Personal Property, including, without limitation, waiving all IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 2.14 - Subcontractors. Contractor agrees to indemnify and save
Owner harmless from claims for payment by any subcontractor who furnishes
materials or supplies or performs labor or services in the prosecution of the
work pursuant to this Agreement. Contractor reserves absolute discretion on the
selection of subcontractors.
Section 2.15 - Financing Arrangements.
(a) Owner will obtain a commitment for the Project Loan for construction
and permanent financing for the Facility which shall be sufficient,
together with the Owner's equity contributions, to pay the full amount
of the
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Contract Price. This Agreement may be terminated by the
Contractor-or-the Owner in its sole and absolute discretion and
without further recourse to any party in the event that the closing
and funding of the construction loan financing with respect to the
Facility pursuant to the Project Loan (with all conditions precedent
to such closing either satisfied or irrevocably waived by the lender)
shall not have occurred by April 30, 1997.
(b) The Owner and Contractor also contemplate that the Premises and
Facility, together with all fixtures, furnishing, equipment, and
articles of personal property now owned or hereafter acquired by the
Owner which are or may be attached to or used in connection with the
Premises or Facility, together with any and all replacements thereto
and substitutions therefor or, and all proceeds thereof; and all
present and future rents, issues, leases, and profits of the Premises
and Facility will serve as security for the payment obligations to any
lenders relating to the Project Loan or otherwise, and that the Owner
will be the principal obligor for the repayment of all financial
obligations thereunder after the transfer of title to Owner. Owner
therefore, agrees to execute and deliver all commitments, promissory
notes, mortgages, collateral assignments, guaranties and all other
instruments, agreements, documents, certificates, affidavits, and
other writings required to be executed by any lender in connection
with such financing.
ARTICLE III
Closing
Section 3.1 - Date of Closing. The delivery of possession of the Premises
and Facility to the Owner and payment of the Contract Price shall take place
contemporaneously within three (3) working days after Physical Completion of the
Facility but in no event later than the date established in Section 2.9.
Section 3.2 - Contract Price.
(a) The price to be paid by the Owner to the Contractor for the
construction and furnishing of the Facility and for the Premises shall
be Nine Million, One Hundred Sixty-Six Thousand Two Hundred
Eighty-Four Thousand Dollars ($9,166,284) plus the costs incurred as
the result of any unforeseen site conditions and selection of
furniture, fixtures and equipment in excess of the FFE Allowance (the
"Contract Price").
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(b) In addition to the Contract Price, if the Closing does not take
place within three (3) working days after Physical Completion due to
delays incurred through the fault of or through circumstances under
the control of the Owner, the Owner shall pay to the Contractor
interest, payable monthly in arrears, on the Contract Price accruing
from the date which is three (3) days after Physical Completion to the
date of which is three (3) days after delivery of possession of the
Facility pursuant to Section 3.1; such monthly interest shall be
computed at a rate equal to the Prime Rate as announced by Fleet Bank,
N.A. from time to time plus two percent (2%) per annum.
Section 3.3 - Payment of Contract Price. At the time of transfer of title,
the balance of the Contract Price not paid via Contractor's requisitions under
the construction financing for the Facility shall be paid by the Owner to the
Contractor by wire transfer, certified check or other mutually acceptable means
less any Punch-list Amount or retainage required by Owner's lender.
Section 3.4 - Form of Conveyance and Status of Title. The Facility and
Personal Property shall be conveyed by warranty ▇▇▇▇ of sale. The Facility and
Personal Property may be subject to the mortgages and security interests
described in Section 2.15.
ARTICLE IV
Additional Responsibilities of Parties
Section 4.1 - Contractor's Responsibilities. In addition to its obligations
elsewhere expressed in this Agreement, the Contractor shall have the following
responsibilities:
(a) To obtain and pay for necessary building permits and the Certificate
of Occupancy;
(b) To pay for all labor and material set forth in the Final Plans (except
as otherwise expressly set forth herein) and to pay for the Personal
Property to be provided;
(c) The Contractor shall at all times, commencing with the date upon which
construction begins, carry the following types of insurance with an
insurance carrier or carriers acceptable to the Owner's lender:
(i) ▇▇▇▇▇▇▇'▇ compensation insurance fully covering all persons
engaged in the performance of this Agreement, in accordance with
applicable law.
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(ii) Public liability insurance covering death or bodily injury with
limits of not less than $300,000 for one person and $1,000,000
for any one accident or disaster; and property damage coverage
limits of not less than $100,000; all of which insurance shall
name the Owner as an additional insured.
(iii) "Builders Risk" insurance against damage or destruction by fire
and full extended coverage, including vandalism and malicious
mischief, covering all improvements to be erected hereunder and
all materials for the same which are on or about the Premises, in
an amount equal to the full insurable value of such improvements
and materials; such insurance to be payable to the Owner, the
Contractor and Owner's lender as their interests may appear, with
standard mortgage endorsement to Owner's lender or its assigns as
mortgagee.
The Contractor shall furnish to the Owner and Owner's lender if
required by such lender, duplicate policies of insurance as set
forth in Subparagraphs (i), (ii), and (iii) hereof. Each of such
policies shall, if the insurance carriers so permit, contain a
provision to the effect that they may not be canceled except upon
ten days prior written notice to the Owner and Owner's lender.
(d) At Closing, Contractor shall deliver to Owner, at Owner's option:
(i) duly executed waivers of mechanic's liens signed by each
subcontractor which provided labor or materials on the project;
or
(ii) reasonable proof of payment or proof of a provision for payment
to such contractors; or
(iii) an indemnification to Owner with respect to same.
Section 4.2 - Owner's Responsibilities. In addition to his obligations
elsewhere expressed in this Agreement, the Owner shall have the following
responsibilities:
(a) To cooperate and assist in obtaining commitments for financing the
contemplated construction, including the furnishing of financial
statements, providing an appraisal of the Premises and Facility and by
execution
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of applications, notes, mortgages, assumption agreements and other
documents reasonably necessary to effectuate such financing or the
financing of the Personal Property.
(b) To pay for all professional and other staff personnel required for the
operation of the Facility in sufficient time to permit licensure by
the Department at the date of physical completion.
(c) To pay to Contractor, in addition to the Purchase Price, the costs for
correcting unusual site conditions. Such payment shall be made on the
basis of the actual costs of Owner in correcting the same plus fifteen
percent (15%) of such costs to cover Contractor's overhead expenses
and shall be due and payable upon the transfer of title to the Owner.
For the purpose of this Agreement, the term unusual site conditions
shall include, without limitation any of the following which have not
been noted in the Basic Plans or otherwise disclosed in the due
diligence materials:
(i) unusual soil or water conditions requiring extraordinary
preparation, i.e., piles, curtain drains, retaining walls,
blasting or riprap;
(ii) tying in of water or other utility services (other than the
sanitary sewer) beyond the boundary lines of the Premises;
(iii) holding tanks and pumps for the water system or the sprinkler
system;
(iv) water purification or filter system;
(v) leaching field; and
(vi) any requirement imposed upon Contractor by governmental agencies
having jurisdiction, if not provided for in the Final Plans,
because of reasons other than errors or omissions in such Final
Plans, such as requirements imposed as conditions of the granting
of any of the Approvals.
(d) Owner shall be solely responsible for the removal of any hazardous
wastes and materials, if any, from the Premises at Owner's sole cost
and expense and not as part of the Contract Price.
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Section 4.3 - Indemnification. The Contractor hereby agrees to indemnify
and hold the Owner harmless from all liabilities, claims, and demands for
personal injury or property damage arising out of or caused by any act or
omission of Contractor, its subcontractors, agents, or employees, or arising in
or about the Premises at any time from the date of this Agreement until transfer
of title. The Contractor further covenants to use proper care and caution in the
performance of its work hereunder so as not to cause damage to any adjoining or
adjacent property, and the Contractor shall indemnify and hold the Owner
harmless from any liabilities, claims, or demands for damage to such adjoining
or adjacent property.
ARTICLE V
Contingencies
Section 5.1 - Required Occurrences. This Agreement and the undertakings of
Contractor shall, at the election of Owner be contingent upon the occurrence of
each of the following:
(a) Approvals. All of the Approvals and current utility availability
letters shall have been obtained by October 31, 1996.
(b) Title. An owner's title insurance policy commitment and Class A-2
survey, satisfactory to the Contractor in its sole discretion, shall
have been obtained by the Owner which confirms that there are no
exceptions or conditions which would render title to the Premises
unmarketable or which will prohibit or restrict the construction or
operation of the Facility or which would prevent an institutional
lender from closing a construction or permanent mortgage loan for the
Facility in the usual course of its business.
(c) Additional Due Diligence Regarding the Premises. The Contractor shall
have received due diligence information concerning the Premises,
satisfactory to the Contractor in its sole discretion, including,
without limitation, soil tests and utility service confirmations to
the extent not currently available.
(d) Purchase of the Premises. The Owner shall have purchased good record,
marketable fee simple title to the Premises as set forth in Section
1.1 by April 30, 1996.
(e) Construction Financing. The Owner shall have received construction
financing in the full amount of the Contract Price by April 30, 1997.
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Section 5.2 - Failure of Contingencies. In the event that any one or
more of the contingencies set forth in this Article is not satisfied, waived or
deferred by the parties in writing, within the period of time set forth above,
then, upon Notice, either party may terminate this Agreement. In such event,
neither party shall have further responsibility or liability to the other.
Contractor reserves the right, at its option, to waive or defer any one or more
of the conditions precedent.
ARTICLE VI
Additional Covenants of Owner
Section 6.1 - Indemnification by Owner. Owner hereby indemnifies and
defends the Contractor against any claims for unpaid fees or costs associated
with the Premises or the Facility incurred by or on behalf of Owner or
Contractor as a result of any claim by any broker. The parties acknowledge that
no broker was responsible for procuring the transactions set forth in this
Letter, nor any part thereof, and each party will indemnify and defend the other
from any and all claims, actual or threatened, for a commission or other
compensation by any third person with whom such party has had dealings.
Section 6.2 - Confidentiality. Owner, its partners, affiliates, agents,
servants and employees (including outside counsel) hereby agree:
(a) To maintain in the strictest confidence the identity of the
Contractor; the contents of this Agreement; the negotiations between
the parties on the terms of this Agreement; and any of the
Contractor's proprietary information, including without limitation,
financial information, projects, copies of leases, real estate
appraisals, and other information regarding the Facility and the
business affairs and operations of the Contractor which any of said
parties obtain from the Contractor in the course of negotiations for
the transactions contemplated hereby (the "Confidential Information");
(b) Not to disclose, without the Contractor's prior written consent
(except to the extent disclosure is required by applicable law or
regulation), any Confidential Information except to such parties' own
agents, servants and employees (including outside counsel), bankers,
consultants and other advisors to whom disclosure is necessary in
order to effectuate the transactions contemplated hereby; and
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(c) To comply therewith for a period of two (2) years commencing on
the date of this Agreement.
Section 6.3 - Provision of Further Information. The Contractor agrees to
supply complete financial information and any other data required in connection
with the construction or permanent financing for the Facility and to execute,
and cause to execute, any and all documents which are required by the terms
thereof.
ARTICLE VII
Concluding Provisions
Section 7.1 - Entire Agreement. All prior understandings, letters of
intent, and agreements between the parties are merged in and superseded by this
Agreement (including all Exhibits hereto), which together with the Owner's
partnership agreement and the management agreement between the Owner and its
management agent fully and completely expresses their understanding with respect
to its subject matters.
Section 7.2 - Representations. None of the parties shall be bound by any
promises, representations, or agreements except as herein expressly set forth.
Section 7.3 - Amendments. This Agreement may not be amended, waived,
modified, altered or changed in any respect whatsoever except by a further
agreement, in writing, executed by each of the parties and consented to by the
Owner's limited partner.
Section 7.4 - Joint Effort. The preparation of this Agreement has been a
joint effort of the parties, and the resulting document shall not be construed
more severely against one of the parties than the other.
Section 7.5 - Brokers. Each of Owner and Contractor represents and warrants
to the other that no broker or finder has acted on its behalf in connection with
this Agreement or the transactions contemplated hereby or referred to herein;
and agrees to indemnify and hold and save the other harmless from any claim or
demand for commission or other compensation by any broker, finder or similar
agent claiming to have been employed by or on behalf of such party.
Section 7.6 - Assignment. Contractor shall have no right to assign his
rights nor delegate his obligations under this Agreement to another entity or
person without the prior written consent of Owner except that the Contractor
shall have the right to assign this Agreement to, merge with or consolidate with
an
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"Affiliate" (defined herein as defined in the Securities and Exchange Act of
1934 and the regulations thereunder) in connection with a public offering.
Section 7.7 - Notices. All notices which may be given to any of the parties
hereunder shall be in writing and shall be hand delivered or sent by registered
or certified mail, return receipt requested, or by Federal Express, and postage
prepaid as follows:
(a) In the event that notice is directed to Owner, it shall be sent to it
at the address set forth above and a copy therefore sent to The
Cragganmore Associates Limited Partnership, c/o CareMatrix
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
President, with a copy to C.A. Moffie, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or at such other
address or addresses Owner shall from time to time designate by notice
to Contractor.
(b) In the event that notice is directed to Contractor, it shall be sent
to CarePlex of Cragganmore, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇ III, Esq.
at the same address; or at such other address or addresses as
Contractor shall from time to time designate by notice to Owner.
The effective date of any such notice shall be the earlier of actual receipt by
the addressee or three (3) days after such notice is properly deposited for
mailing.
Section 7.8 - Arbitration. Any dispute or controversy arising between the
parties involving the interpretation or application of any provisions of the
Agreement, or arising out of this Agreement, or concerning the construction of
the proposed Facility or the furnishing thereof shall be submitted to and
determined by arbitration in accordance with the rules of the American
Arbitration Association then in effect.
Section 7.9 - Captions. The captions of this Agreement are for convenience
and reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision hereof.
Section 7.10 - Successors. This Agreement shall be binding upon the parties
hereto, their respective heirs, executors, administrators, successors, and
assigns.
Section 7.11 - Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original.
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Section 7.12 - Severability. The invalidity or unenforceability of one or
more of the phrases, sentences, provisions, clauses, Sections or Articles
contained in this Agreement shall not affect the validity or enforceability of
the remaining portions so long as the material purposes of this Agreement can be
determined and effectuated.
Section 7.13 - Effective Date. This Agreement shall be deemed to be
effective as of the date set forth below.
Section 7.14 - No Offer. The delivery of an unexecuted copy of this
Agreement shall not be deemed an offer. No rights are to be conferred upon any
party until this Agreement has been executed and delivered to each party.
Section 7.15 - Governing Law. This Agreement shall be governed by the laws
of the State of Connecticut.
Dated this 3rd day of October, 1996 and executed under seal.
Witness: THE CRAGGANMORE ASSOCIATES
LIMITED PARTNERSHIP
By: CarePlex of Southington, Inc.
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
--------------- --------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ III
/s/ [ILLEGIBLE] Its General Partner
--------------- Duly Authorized
CAREPLEX OF CRAGGANMORE, INC.
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------- -------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ [ILLEGIBLE] Its President
--------------- Duly Authorized
-17-
EXHIBIT A
to
Turnkey Construction Contract
Legal Description
(See attached)
EXHIBIT A
PROPERTY DESCRIPTION
[ILLEGIBLE] two continguous parcels of land, with the buildings thereon,
situated in the Town of Southington, County of Hartford and State of
Connecticut, and more particularly bounded and described as follows:
FIRST PIECE: A certain piece or parcel of land, containing thirteen (13)
acres, more or less, with all buildings and improvements thereon, located on
the southerly side of Mulberry Street in the Village of Milldale, Town of
Southington, County of Hartford and State of Connecticut, bounded and described
as follows, to wit:
NORTHERLY by the highway, Mulberry Street, 100.3 feet and by land, now or
formerly, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in part by each;
EASTERLY by land now or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and by land now
or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, partly by each;
SOUTHERLY by the Quinnipiac River; and,
WESTERLY by land now or formerly of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇; and
a certain piece or parcel of land situated on the southerly side of Mulberry
Street, in the Town of Southington, County of Hartford and State of
Connecticut, being shown as lot No. 1 on a map entitled, "MAP OF PROPERTY OF
▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Mulberry and South Main Streets, Southington, Conn., Nov.
2, 1940, Scale 1"=50', Mackenzie and ▇▇▇▇▇▇ Engineers and Surveyors, being
bounded:
NORTHERLY by the highway, Mulberry Street, 60 feet;
EASTERLY and
SOUTHEASTERLY by land of Bealda ▇. ▇▇▇▇▇▇, a distance of 275 feet, more or less.
Excepting therefrom a portion of said premises conveyed to ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇ by warranty deed dated July 30, 1968 and recorded in
volume 223, page 19 of the Southington Land Records.
SECOND PIECE: All of that certain piece or parcel of land with all buildings and
improvements theron, situated in the Town of Southington, County of Hartford and
State of Connecticut, bounded and described as follows:
NORTHERLY by Mulberry Street, 111 feet;
EASTERLY by land now or formerly of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 250 feet, more or
less;
NORTHERLY again by lands now or formerly of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, each in part:
EASTERLY again by lands now or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, each in
part;
SOUTHWESTERLY by land now or formerly of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, being an uneven
line;
SOUTHERLY by land now or formerly of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and,
WESTERLY by land now or formerly of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Excepting therefrom a portion of said premises conveyed to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ by warranty deed dated April 15, 1970 and recorded in volume 234
page 726 of the Southington Land Records.