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RECITALS:
A. The Township is the owner of those certain parcels of real property located in
Ardmore, Lower Merion Township, Montgomery County, Pennsylvania, more particularly
described on Exhibit “A” attached hereto and made a part hereof (collectively, the “Township
Site”).
B. Pursuant to a Request for Proposal (the “RFP”) dated June 22, 2007, the
Township solicited proposals for redevelopment of several parcels in Ardmore, Pennsylvania,
including, without limitation, the Township Site. The RFP requested, among other things, that
potential redevelopers submit proposals for a portion of the overall redevelopment encompassing
redesign and redevelopment of a train station together with commercial, residential, parking and
other uses to be proposed by potential redevelopers.
C. Dranoff presented the winning proposal and became the successful bidder in
response to the RFP, as the result of which the Township and Dranoff entered into a letter of
intent dated July 2, 2008 (the “Letter of Intent”) outlining major features of the proposed overall
redevelopment.
D. For the first phase of the overall redevelopment, Dranoff has proposed to
construct a mixed-use project integrated with a new train station and other improvements that
include retail, office and residential uses, including a “mini main street,” in part on land
identified on Exhibit ”B” attached hereto and made a part hereof (the “Amtrak Site”) owned by
National Railroad Passenger Corporation (“Amtrak”) and leased to the Southeastern
Pennsylvania Transportation Authority (“SEPTA”) and in part on the Township Site. The mini-
main street shall connect to the existing Station Avenue and is anticipated to become, at the
option of the Township, a public street. Dranoff has further proposed to construct a parking
garage (the “Garage”) to be located on the Township Site in order to provide parking for the
Project, as defined below.
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coordination. Urban Engineers, Inc., and a team of subconsultants (the “A&E Consultants”)
have been selected as the architectural and engineering consultant through this process. The
Transit Improvements, including the Garage, are collectively referred to herein as the “Public
Project,” and Dranoff’s mixed-use, retail, office and residential improvements, including the
parking located on the Amtrak Site and intended solely for use by occupants of the residential
improvements, are collectively referred to herein as the “Private Project.” The Public Project
and the Private Project are collectively referred to herein as the “Project.”
• New station building with a mixed area of retail and commuter facilities
commuter facilities including waiting and toilet rooms on the first floor and 2
floors of commercial office space above the main station;
• New low-level passenger platforms approximately 200 feet long for emergency
access to the inside tracks 2 and 3;
• New electric power and lighting to support the transit operation; and
I. The Township has entered into agreements with SEPTA and Amtrak with regard
to the Transit Improvements. Such agreements include, without limitation, (a) an Agreement
dated August 15, 2005, between the Township and Amtrak regarding the provision of services by
Amtrak and reimbursement of costs to Amtrak in relation to the Project (the “Preliminary
Engineering Agreement”); and (b) a Funding Agreement dated May 8, 2006, between SEPTA
and the Township, as amended (such agreement, as the same has previously been and may
hereafter be amended, the “Funding Agreement”), pursuant to which SEPTA has agreed, under
and subject to a Master Funding Agreement, to fund a portion of the FTA Grant No. PA-03-0385
to the Township, on a matching basis pursuant to which SEPTA would fund up to 80% of the
Public Project costs and the Township would fund up to 20% of such costs, up to a total amount
of $7,000,000.
J. The Township has engaged A&E Consultants and intends to engage such other
architects, engineers, contractors, building managers and other consultants as may be necessary
for the planning, design, development and operation of the Public Project (any such persons or
entities engaged from time to time by the Township, the “Consultants”).
K. Amtrak, SEPTA, Dranoff and the Township are engaged in discussions regarding
financing, construction and operation of the Garage and other improvements. Amtrak and
Dranoff have entered into discussions for transferring the Amtrak Site to Dranoff.
M. The Township and Dranoff desire to set forth their agreements regarding the
planning, design, development, construction and operation of the Public Project and the Private
Project.
(b) At closing under the construction financing for the Project, and as
conditions to the Township’s obligations to proceed with the Project and Dranoff’s right to draw
funds under the construction financing, Dranoff shall cause its mortgage lenders to enter into an
agreement, which shall be recorded in the Recorder’s Office, that if such lender commences an
action in foreclosure (or other action pursuant to which, if completed, will cause the mortgagor
to lose possession of or title to the Amtrak Site), the Township shall have the reasonable right to
assume the loan and complete the Project on terms reasonably acceptable to the mortgage lender
which shall include, without limitation, the assumption by the Township of all the terms,
conditions and provisions set forth in each of the documents evidencing or securing the Loan.
(b) The Township shall have the right, but not the obligation, to inspect the
construction of the Private Project for the purpose of determining material conformity with the
Approved Plans, as defined below. In the event that the Township discovers construction that is
not substantially in accordance with the Approved Plans, and Dranoff fails to cure such failure
within thirty (30) days of receipt of written notice from the Township, provided that if such
failure is not capable of being cured within such thirty (30) day period, the time period for curing
shall be extended for up to 365 days so long as Dranoff promptly commences to cure the failure
and thereafter diligently prosecutes such cure to completion, such failure shall constitute an
Event of Default and the Township shall be entitled to exercise the remedies set forth in Section
6.3 hereof.
(i) Dranoff shall have received a title insurance policy covering the
Amtrak Site (the “Title Policy”) reasonably satisfactory to Dranoff, its lenders and its investors.
The Title Policy shall insure good and marketable title to the Amtrak Site, at regular rates.
(d) If item (c) (ii) or (c) (iii) have not been performed on or before
December 31, 2012, either the Township or Dranoff shall have the right to terminate this
(a) The parties acknowledge that the conceptual design set forth on
Exhibit “F” attached hereto and made a part hereof is consistent with their expectations as of the
date of this Agreement. Without limiting the Township’s ability to approve the plans and
specifications for the land development approvals consistent with the Pennsylvania
Municipalities Planning Code, Lower Merion Township Zoning Code and all other Laws (none
of which shall be deemed to occur under this Agreement but rather in the ordinary course
according to the Township’s practice and procedure), the Township shall have the right to
approve final plans for the Project (the “Approved Plans”); provided, however, that the
Township shall not unreasonably withhold, delay or condition its consent under this subsection
(a) so long as the design reflected in the plans is consistent with the conceptual design attached
hereto as Exhibit “F.” No approval of the design, construction documents or any other aspect of
the Private Project shall be deemed to impose any liability upon the Township, it being
understood that such review is for the Township’s own purposes and not to be construed as a
representation or warranty that the Private Project has been designed or constructed in
conformance with applicable Laws. Dranoff shall remain solely responsible to review and
approve, or cause qualified professionals to review and approve, the design and construction of
the Private Project. Further, no approvals under this Section 1.4(a) or otherwise under this
Agreement shall in any way be construed to constitute an approval of the plans and
specifications for purposes of land development, zoning, building codes, the Municipalities
Planning Code, or any other Laws for any other purpose whatsoever except for compliance with
this Agreement.
(b) In addition to all other Township approvals, the Township shall have
the right to approve, in its reasonable discretion, (i) the design of any material elements of the
Private Project visible from the exterior of the Private Project, including, but not limited to,
building exteriors, landscaping, pedestrian walkways, and public spaces, and, until completion of
the Project, (ii) (A) joint venture partners, members or shareholders (provided, however, that to
the extent that Dranoff retains Control of the Project, the Township shall not have such right;
(c) Dranoff shall consult with the Township regarding the selection of all
architects, engineers, contractors and other professionals to be engaged in connection with the
Private Project; the Township hereby approves of the following professionals: JKR Partners,
imPAct Pennsylvania Strategies, LLC, Urban Engineers, Inc., and Timothy Haahs & Associates.
1.5 Below Market Rate Housing (BMR). “BMR” will be defined by the Township
and will include residential units. Dranoff shall provide a diversity of housing types, and at least
10% of the total number of residential units shall be BMR units. Dranoff shall endeavor to work
with existing non-profit BMR organizations serving the Township.
1.6 Retail. A diversity of retail must be sought, aimed at providing stores that will
meet the everyday needs of a socio-economically diverse neighborhood. Retail uses shall be
consistent with the Ardmore Merchandizing Mix and Retail Strategy and should include
primarily independent retailers or local chains.
2.1 Schedule. In consultation with the Township, the A&E Consultants, SEPTA
and Amtrak, Dranoff shall (i) prepare and update, as required or permitted hereunder, a
development, permitting, financing, design and construction schedule for the entire Project (the
“Schedule”); and (ii) monitor and make oral reports and written reports to the Township, SEPTA
and Amtrak as reasonably required or as is reasonably necessary as to the progress of the Project
compared to the Schedule. The initial Schedule is attached hereto as Exhibit “C” and made a
part hereof. If Dranoff believes that revisions to the Schedule are necessary as the Project
progresses, Dranoff shall provide a written proposal to the Township, which proposal shall
include an explanation of the justification for the proposed changes. The Township shall review
and approve or deny such proposal in its reasonable discretion. In the event of any event which
Dranoff, despite commercially reasonable efforts, is not able to prevent, including acts of God,
terrorism, war, strikes or labor disputes unrelated to Dranoff’s activities, unavailability of funds,
fire or other casualty (such event, an “Event of Force Majeure”), but not including the loss of or
failure to obtain tenants, the Schedule shall be extended as necessary, in the Township’s
reasonable discretion; provided, however, that such extensions, cumulatively, shall in no event
exceed seven hundred thirty (730) days and provided, further, that Dranoff shall notify the
Township of the onset of any such delays.
(a) Unless otherwise approved by the Township, all new development and
redevelopment shall comply with zoning and all other applicable Township ordinances, land
development procedures, and future amendments thereto. The Project and all plans and designs
must complement the existing architecture within the Ardmore Commercial Historic District,
comply substantially with the Ardmore Storefront Design Guidelines and design standards of
zoning. The parties anticipate that if the Project is to be constructed as contemplated by this
Agreement, amendments to the Township zoning ordinance will be required. The Township and
Dranoff agree to use reasonable efforts to work cooperatively to create a project that meets
zoning and land development approval requirements. The Township recognizes that Dranoff
may request amendments to the Township’s current ordinances or waivers in order to make the
Project feasible or more compatible with a transit oriented development, and Dranoff shall have
the right to terminate this Agreement in the event that amendments to the Township’s current
ordinances which are reasonably necessary for the construction of the Project are not obtained on
or before June 30, 2012. In no event shall approval of this Agreement be construed as a
modification of, or an agreement to modify, the zoning ordinance.
(b) The Township shall, to the extent consistent with the Township’s legal
obligations, work cooperatively and expeditiously with Dranoff in securing approvals and
permits and in meeting requirements of other government entities.
2.3 Budget. Dranoff shall, in conjunction with the Township and its consultants,
prepare financial projections and financial analysis for the Transit Improvements and the Project
as a whole, and shall prepare and submit to the Township for approval, as and when reasonably
requested by the Township, proposed budgets for the Public Project and the Private Project in
such detail as the Township may reasonably request, such budgets to show all projected direct
and indirect costs for development of the Public Project and the Private Project. The Township
and Dranoff acknowledge and agree that as of the date hereof the Budget attached hereto as
Exhibit “D” and made a part hereof is approved for the Project as a whole (such budget, as
modified from time to time pursuant to the terms of this Agreement, the “Budget”). Dranoff shall
periodically update the Budget and submit it to the Township for the Township’s reasonable
approval. Before the commencement of construction on either the Private Project or the Public
(a) Dranoff shall be responsible to provide from its own resources or those
of its constituent partners or members, or to identify and, to the extent commercially feasible,
obtain from other sources the funding necessary to carry out the Project, and shall seek grant
funding from other sources. The parties recognize that governmental and private bodies may
commit grants or other financial assistance to facilitate the Project. Such assistance may include
grants from the federal, state or county government for the construction of the new Transit
Center and related infrastructure (including infrastructure to bring the station’s facilities into
compliance with the ADA); historic tax credits or low-income tax credits, as may be determined
by Dranoff to be available for various components of the Project; funding from transit agencies;
and other county, state and federal grants, loans or assistance. The Township shall cooperate, at
no out-of-pocket cost to the Township, with Dranoff’s efforts to identify and obtain such
assistance.
3.4 Services. During the term of this Agreement, Dranoff shall perform the
following services:
(a) Advise the Township of the most productive and beneficial approaches
for completion of the Public Project.
(b) Consult with and advise the Township as to the Township’s selection of
the Consultants, including a construction manager for the Public Project (the “CM”) and assist in
the negotiation of agreements with the Consultants and the CM, which shall be subject to the
Township’s reasonable approval. Dranoff understands and agrees that the design and
construction of the Public Project may be subject to certain public requirements, including,
without limitation, the Brooks Act and the Separations Act, and that various public agencies,
including, without limitation, SEPTA, Amtrak, the Federal Transit Authority, PennDOT and the
Federal Railroad Administration (the “Transit Agencies”), may require certain laws, regulations
and procedures (collectively, the “Transit Requirements”) to be followed in connection with the
Public Project or portions thereof, including, without limitation, the Transit Improvements.
(j) Review with the Township, the A&E Consultant and any other
appropriate Consultants any suggested change orders required during construction of the Transit
Improvements. No change order shall be made in any bid, contract, subcontract or purchase
order without the prior written consent of the Township and SEPTA (provided, however, that the
Township and Dranoff may establish a mechanism for field approval by Dranoff of minor
change orders).
(l) Provide all required accounting functions for the construction of the
Public Project, including, without limitation, the review and analysis of funding and payment
requests during the course of any construction.
(m) Exercise diligent efforts to cause the Public Project to be developed and
constructed in accordance with the Budget and the Schedule approved by the Township, as
amended from time to time with the Township’s reasonable written approval.
(n) Monitor and use reasonable diligence and reasonable efforts to require
that all Consultants and the CM comply with all of the terms of their contracts and all applicable
laws, ordinances, rules, regulations and restrictions governing the construction of the Public
Project, including the Transit Requirements.
(o) Take reasonable action to assure that all material and equipment
furnished and used for permanent installations shall be new and as specified, and use reasonable
efforts to require all contractors to cause all materials or other parts of their work to be readily
available as and when required or needed in connection with the continuous and expeditious
prosecution of such work and require all contractors to ascertain that all materials and equipment
which are to be part of their work are free of any lien or security interest in favor of any other
party (except as approved by the Township) and that good title will pass on delivery.
(p) During the progress of constructing the Public Project and thereafter,
while warranties are applicable, use diligence and reasonable efforts to enforce all warranties and
to cause all defects in the construction or execution of the Public Project to be corrected.
(r) Cause all contracts and subcontracts to provide for the general security
and safekeeping of all materials, equipment and improvements located at the Project site.
(u) Take such action as may be necessary to cause the Public Project to
comply with any law, statute, ordinance, resolution, rule, regulation, order or determination by
any governmental authority or any board of fire underwriters (or other body exercising similar
functions), or any recorded restrictive covenant or deed restriction, including without limitation,
all applicable zoning ordinances and building codes, flood disaster laws, health and
environmental laws and regulations, and laws and regulations governing accessibility by the
disabled.
(w) If the Township so requests, review and advise the Township (in
conjunction with the Township’s Consultants if applicable under their respective contracts) with
respect to monthly construction applications for payment prepared by contractors,
subcontractors, architects and engineers, and advise the Township of the proper amounts
payable, and prepare such documentation as is reasonably required to monitor construction
draws.
(x) Perform such other services as are normal and customary for
experienced, first class developers to perform on projects of like kind and size as the Transit
Improvements and the Project as a whole.
4.1 Garage. The parties anticipate that if the Project is to proceed in the manner
provided in this Agreement, the above-ground portion of the Garage shall consist of at least five
hundred (500) parking spaces. The Township shall manage the portion of the Garage above
ground, and shall receive a fee for such management. Dranoff shall perform, at its expense,
maintenance of the Garage below ground (and ramps leading downward below the ground floor),
It is also expected that the Township, Amtrak and SEPTA will enter into an
agreement regarding the parking spaces to be used by Amtrak and SEPTA, and Amtrak and
SEPTA’s obligations to contribute toward reserves and operating expenses.
4.2 Traffic. To the extent not performed by the A&E consultants, and if required
as a part of the land development process, Dranoff shall conduct traffic impact studies to
determine the cumulative effect and impacts of the Project, and shall provide traffic and
pedestrian improvements to address identified traffic and pedestrian needs.
Dranoff shall incorporate traffic calming and pedestrian safety measures into its
designs for Lancaster Avenue and adjacent roadways impacted by development. Dranoff shall
identify and make appropriate provisions for delivery and trash collection vehicles during
construction, as well as after Project completion for the non-residential portions of the Private
Project. Dranoff and the Township shall engage in preplanning for parking during construction.
5.1 Fees. The Budget provides for a development fee of two and one-half percent
and a general and administrative fee of two and one-half percent of the cost of the entire Project
(collectively, the “Developer’s Fee”) to be paid from both public and private sources to Dranoff
in consideration for the services to be rendered by Dranoff relating to both the Public and Private
portions of the Project under this Agreement. The Developer’s Fee shall be paid as follows:
50% upon commencement of construction of the Public Project, and the remainder monthly over
the course of construction of the Project, in proportion to the percentage of work completed on
5.2 Expenses. Dranoff shall reimburse the Township for the Township’s third-
party professional service costs reasonably and actually incurred in connection with the land
development process outlined in this Agreement, including but not limited to costs incurred to
negotiate agreements with Dranoff, including without limitation, the Amtrak Acquisition
Agreement and this Agreement, incurred after March 1, 2008 through the date hereof. If, but
only if, neither Dranoff nor the Township terminates this Agreement prior to the earlier of the
date of execution of the Amtrak Acquisition Agreement or June 30, 2010 (as such date may be
extended by mutual agreement of the parties, the “Amtrak Agreement Deadline”), Dranoff shall
automatically without further action be further responsible for such third-party professional fees
and costs from and after the date hereof.
(a) Except as provided in the last sentence of this subsection (a), Dranoff
shall not be required to reimburse the Township for expenses that are reimbursed under the FTA
Grant No. PA-03-0385 or that are the responsibility of the Township to provide “matching”
funds under such agreement or under a Matching Engineering and Design Grant. The term
“Matching Engineering and Design Grant,” as used in the preceding sentence, shall mean any
grant or subsidy related to the Project, other than a loan which requires repayment, that requires
matching funds and that covers engineering or design, but the term “Matching Engineering and
Design Grant” does not include grants and subsidies to the extent covering fees and costs of
inspections, reports and investigations related to the Project. If the Reimbursement Date, as
hereinafter defined, occurs, the Township shall be reimbursed on the Reimbursement Date (or
reasonably promptly thereafter if the expense is incurred after the Reimbursement Date)
obligations required to be funded by such matching funds.
(b) Dranoff shall be entitled to the benefit of any special rates or fee
arrangements obtained by the Township. Dranoff shall pay amounts due at the earlier of (a) the
first construction closing or construction draw on financing of the Private Project following
delivery of professional services (the “Reimbursement Date”), or (b) termination of this
Agreement by Dranoff or termination of negotiations under this Agreement by Dranoff, except
that Dranoff shall not be liable for any such costs, expenses or fees if this Agreement, or
negotiations hereunder, is terminated by Dranoff (i) by reason of Dranoff’s unwillingness to
grant or agree to a request or demand of the Township which is unreasonable in the context of
this Agreement, (ii) because the Township unreasonably takes an action or refuses to take an
action reasonably required for fulfillment of this Agreement or for performance or construction
of the Project; or (iii) because the Township is in default. This Section 5.2 shall survive the
termination of this agreement and execution and delivery of the Amtrak Acquisition Agreement.
The Township shall pay directly all consultants and the CM, and except as otherwise specifically
set forth herein Dranoff shall be responsible for all expenses incurred by Dranoff in connection
with the performance of its obligations hereunder.
(e) If, prior to the Reimbursement Date, funds from grants or subsidies not
required to be repaid are received by the Township that (i) are not prohibited from being used to
pay for the expenses that are required to be reimbursed by Dranoff under this Section 5.2
(“Reimbursable Expenses”) and (ii) are available to be used (“Eligible Funds”), the Township
shall have the right to use such Eligible Funds for Reimbursable Expenses. If Eligible Funds are
not used to pay Reimbursable Expenses previously incurred or ascertainable in amount at the
time the grant funds become available for use, Dranoff’s obligations under this Section 5.2 shall
nevertheless be reduced dollar for dollar by the amount of Eligible Funds that were not used to
pay Reimbursable Expenses. In no event shall the dollar for dollar reduction under this
subsection (e) result in a reduction of Dranoff’s obligations under this Section 5.2 that is, in the
aggregate, less than zero.
5.3 Project Manager. Dranoff shall from time to time designate an individual,
subject to the Township’s approval, as the “Project Manager” having direct responsibility for the
Project and the Transit Improvements. If any person so designated as Project Manager shall
cease to be an employee of Dranoff for any reason, Dranoff, subject to the reasonable approval
of the Township, shall promptly designate a replacement who shall, in any event, have a good
business reputation and substantial experience in the development of commercial properties
similar in product type and quality to the Public Project and who can devote to the Public Project
such amount of time as shall be required to be spent by the Project Manager to complete the
Public Project and the Project as a whole at the times required by the Schedule, as extended in
accordance with the provisions hereof. Dranoff shall cause each of its employees to devote so
much of their time and effort to the Transit Improvements as is necessary for Dranoff to perform
its obligations as required hereby throughout the term of this Agreement.
5.4 Owner’s Representative. Dranoff understands and agrees that the Township,
SEPTA and Amtrak, individually or together, may retain the services of an owner’s
representative, engineer, inspector or other agent skilled at reviewing design and construction
(each, an “Owner’s Rep”). Upon notice from the Township, SEPTA or Amtrak, Dranoff shall
interact with such appointed Owner’s Rep on such basis as the appointing body shall designate.
6.1 Term. The term of this Agreement shall continue from the date hereof until
performance of all the obligations of Dranoff hereunder has been completed or the earlier
termination by either party in accordance with the terms hereof. Performance of Dranoff’s
obligations under this Agreement shall not be considered completed until such time as (a) all
permits, including final certificates of occupancy, have been issued for the Public Project and the
Private Project, (b) the Township has received a certificate of completion from the A&E
Consultants for the Public Project certifying that the Public Project has been completed
substantially in accordance with the terms of this Agreement, and (c) all final lien releases have
been received by the Township or other security posted reasonably acceptable to the Township
so that all liens are released from the Project.
6.2 Dranoff Default. The following shall be deemed to be events of default (each,
an “Event of Default”):
(a) Dranoff fails to observe or perform any of its obligations under this
Agreement, and such failure is not cured within thirty (30) days after the date of a notice from
the Township (provided, however, with respect to any matter not curable by the payment of
money which is not reasonably capable of being cured within such thirty (30) day period, the
time period for curing shall be extended to 365 days (if the reason such cure is delayed is for
reason other than Force Majeure) and 730 days (if the reason such cure is delayed is Force
Majeure, to run concurrently with any Force Majeure delay under Section 2.1) so long as
Dranoff promptly commences to cure the failure and thereafter diligently prosecutes such cure to
completion; if a default by Dranoff under this Agreement causes material adverse consequences
to the Township and such material adverse consequences are not eliminated by reason of Dranoff
curing its default, then such default shall not be deemed to have been cured;
(b) Dranoff commingles any funds intended to be used for the Public
Project with any funds of Dranoff, or uses funds intended to be used for the Public Project for
purposes unrelated to the Public Project;
(c) Dranoff suspends or discontinues business for more than sixty (60)
consecutive days with respect to all of the obligations of Dranoff herein and Dranoff does not
resume business within thirty (30) days (or 730 days if because of Force Majeure) after the date
of a notice from the Township;
(f) Any fraud, gross negligence or willful misconduct against the Township
or the Transit Agencies is perpetrated by Dranoff; or
(g) The Project, or any milestone on the Schedule, has not been completed
as set forth in the Schedule, as the same may be extended hereunder, and such failure is not cured
within thirty (30) days after the date of a notice from the Township; provided, however, that such
milestones may be extended as more fully set forth in Section 2.1 hereof.
(c) Exercise the Township’s rights under the Option as the same are
specified and limited under Section 1.1(a);
(d) Discontinue payments of the Developer’s Fee, unless and until the
Event of Default is cured to the reasonable satisfaction of the Township;
The exercise by the Township of any one or more of the remedies allowed
under this Agreement shall not preclude the simultaneous or later exercise by the Township of
any or all other remedies allowed under this Agreement. No other action against Dranoff, for
damages or otherwise, shall be permitted hereunder, and the Township’s remedies against
Dranoff shall be strictly limited to the remedies provided in clauses 6.3(a) through (e) above.
6.4 Township Default and Dranoff’s Remedies. In the event that the Township
fails to perform any of its obligations under this Agreement and such failure is not cured within
thirty (30) days after the date of a notice from Dranoff (provided, however, with respect to any
matter which is not reasonably capable of being cured within such thirty (30) day period, the
time period for curing shall be extended to one hundred twenty (120) days so long as the
Township promptly commences to cure the failure and thereafter diligently prosecutes such
6.5 Termination. Upon termination of this Agreement for any reason, Dranoff
shall deliver to the Township, to the extent in Dranoff’s possession or control, all agreements and
guarantees from contractors and suppliers and other documents relating to the construction and
development of the Public Project, all books, records, accounts and files for the Public Project,
all operating and maintenance agreements relating to the Public Project, all permits relating to
the Public Project, all other property of the Township in Dranoff’s possession, and such other of
Dranoff’s operating records and ancillary documents related to the development, construction or
management of the Public Project, together with a quitclaim assignment to the Township, with
no right of reliance, of all right, title and interest of Dranoff, if any, in and to such items.
7.1 Insurance.
(a) Dranoff shall take out and carry at its own cost and expense during the
entire term of this Agreement, property damage (with respect to the Private Project) and general
public liability insurance (with respect to the entire Project) with required limits to protect both
Dranoff and the Township from liability. Dranoff shall insure payment of compensation to its
employees in accordance with the Worker’s Compensation Laws of the Commonwealth of
Pennsylvania.
(d) All insurance coverage which Dranoff is required to provide for the
Agreement shall be maintained in full force and effect from the date required hereunder until the
termination of this Agreement.
(e) All policies shall provide for a minimum of thirty (30) days prior
written notice to the Township Finance Department, Purchasing Division, before cancellation or
material change by the insurance company writing the policy. If such notice is not provided for
within the basic terms of the policy, it shall be provided by endorsement or notation in the
certificate.
(f) Dranoff shall have all liability policies other than Worker’s
Compensation and Professional Liability designated “additional insured required” written or
endorsed to include the following as additional insureds: Township of Lower Merion and
AMTRAK. SEPTA is to be listed on the insurance certificate as an “Additional Insured” on all
applicable liability coverage excluding Workers Compensation with respect to this project and
the “Named Insured” on Railroad Protective Liability Coverage.
(g) All policies wherein the parties designated in subparagraph (g) above
are included as additional named insureds shall contain a waiver of liability for the payment of
premiums covering these additional insureds.
(k) If Dranoff fails to maintain any of the insurance required under this
Agreement, then, in addition to any other remedies available hereunder, at law or in equity, the
Township may purchase such insurance, on behalf of Dranoff, in which event Dranoff shall
reimburse the Township for the cost of such insurance, upon demand.
(m) To the extent not prohibited under the Township’s risk management
policy, Dranoff shall be named as an additional insured under the Township’s liability policy for
the Public Project.
(n) To the extent not prohibited under the Township’s risk management
policy, by Amtrak and SEPTA, the parties will use commercially reasonable efforts to minimize
premiums under the required insurance policies which may include single policies of insurance
for the entire Project with an appropriate allocation of premiums.
7.2 Waiver of Subrogation. The Township and Dranoff waive all rights against
each other and their agents and employees for damages caused by fire or other perils to the
Transit Improvements to the extent of insurance proceeds actually received in connection with
such casualty, together with the amount of any deductible payments to be made with respect to
such policies. The insurance policies shall provide such waivers of subrogation by endorsement
or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that
person or entity would otherwise have a duty of indemnification, contractual or otherwise, did
not pay the insurance premium directly or indirectly and whether or not the person or entity had
an insurable interest in the property damaged.
7.3 Casualty. The Township and Dranoff shall promptly notify each other of any
fire or other damage to any part of the Project. In the event of any serious damage to any part of
the Project, Dranoff shall telephone the Township and comply with the Township’s insurance
requirements. The Township and Dranoff shall telephone each other immediately if either party
has knowledge that any hazardous substances or other contaminants are released on, about, under
or in the immediate vicinity of the Project other than such substances as are commonly used or
required by the plans and specifications to be used, provided such use does not violate any
applicable law. Dranoff shall not settle any losses, complete loss reports or adjust losses on
behalf of the Township or meet with any federal, state or local regulatory agency without the
prior written consent of the Township. The Township and Dranoff shall notify each other
promptly of any personal injury or property damage occurring to or claimed by any tenant or
third party on or with respect to any part of the Project. Dranoff shall promptly forward to the
Township upon receipt copies of any summons, subpoena or other like legal document served
7.4 Indemnity. To the fullest extent permitted by law, Dranoff shall indemnify and
hold harmless the Township, its agents and employees from and against any and all claims,
demands, actions, fines, penalties, liabilities, losses, taxes, damages, injuries and expenses
(including, without limitation, reasonable attorneys’ fees and costs at the pretrial, trial, and
appellate levels) in any manner related to, arising out of or resulting from:-
(a) any failure of Dranoff to perform its obligations under this Agreement,
to the extent arising from the fraud, bad faith, willful misconduct or gross negligence of Dranoff
and provided such failure was not caused by events beyond the reasonable control of Dranoff or
Dranoff ‘s affiliates;
(b) any acts of Dranoff beyond the scope of its authority under this
Agreement;
(c) any acts or omissions of Dranoff in connection with the Private Project;
(d) any injury, damage or death to Dranoff, its officers, directors, partners,
employees, agents and other representatives; or
In addition, Dranoff shall execute, and shall require all persons working on its
behalf, including but not limited to its employees, agents, servants, contractors, and
subcontractors’ employees, on Amtrak property to execute the “Indemnity from Contractors
Performing Design or Engineering Functions,” in form and subject agreed upon between Amtrak
and Dranoff (and such other instruments as shall make Dranoff, not the Township, responsible
for any environmental indemnities required by the Transit Authorities). So long as funds are
available and SEPTA consents, the Township shall make funds from the FTA Grant No. PA-03-
0385 available to Dranoff to be used in connection with any risk fees or deductibles incurred by
Dranoff in connection with such indemnification.
The rights and obligations of indemnity described in this Section 7.4 shall not
be exclusive and shall be in addition to such other rights and obligations as may be otherwise
available at law or in equity.
The Township recognizes that the RFP solicited development proposals for property in
Ardmore that is not the subject of this Development Agreement, and that Dranoff’s response to
ARTICLE 9. MISCELLANEOUS.
9.1 The Township agrees to work with Amtrak to relocate property lines of the
Township Site and the Amtrak Site so that the Private Project is located entirely on the Amtrak
Site and the Public Project is located entirely on the Township Site. Any such lot line relocation
shall be in accordance with all applicable laws and regulations, and shall not result in a
diminution of the total land area owned by the Township.
9.2 This Agreement shall supersede and replace the Letter of Intent.
9.3 It is understood and agreed that nothing contained in this Agreement or the
performance hereof shall be construed as creating any employment relationship whatsoever
between the Township and employees of Dranoff. Therefore, none of Dranoff or any of its
respective employees is or shall be deemed to be employees of the Township. Dranoff agrees to
indemnify, reimburse, defend and hold the Township harmless from and against all costs and
expenses (including, without limitation, all court costs and reasonable attorney’s fees) properly
incurred or paid by the Township in enforcing this Agreement against Dranoff (whether or not
litigation is commenced) or in appearing in any bankruptcy, reorganization receivership or
similar proceeding of Dranoff as permitted hereunder. All communications, notices and
exchanges of information contemplated herein or required or permitted to be given in connection
with this Agreement shall be in writing, and shall be deemed to have been given and to be
Each party hereto shall have the right, by giving not less than five (5) days prior written notice to
the other parties hereto, to change any address of such party for the purpose of notices under this
Section.
9.4 This Agreement and the exhibits attached to it contain the entire agreement of
the parties with respect to the subject matter of this Agreement, and supersede all prior
agreements and understandings with respect thereto, including, without limitation, the RFP or the
LOI. There have been no representations made by either party or understandings made between
the parties with respect to the subject matter of this Agreement other than those set forth in this
Agreement and the exhibits attached to it.
9.5 This Agreement may not be modified except by a written instrument duly
executed by the parties hereto.
9.6 Failure by either party to enforce any of the provisions of this Agreement for
any length of time shall not be deemed a waiver of its rights set forth in this Agreement. Such a
waiver may be made only by an instrument in writing signed by the party sought to be charged
with the waiver.
9.7 Time is of the essence with respect to all provisions of this Agreement, subject
to the provisions of Section 2.1 hereof.
9.8 If any term or provision of this Agreement, or the application thereof to any
person or circumstance shall, to any extent be held invalid or unenforceable by a court of
competent jurisdiction, the remainder of this Agreement, or the application of such term or
provision to any Person or circumstance other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall
be valid and be in force to the fullest extent permitted by law.
9.10 This Agreement shall bind and inure to the benefit of the parties hereto and
their successors and permitted assigns.
9.11 This Agreement may not be assigned by either party hereto without the prior
written consent of the other party; provided, however, that Dranoff shall have the right to assign
this Agreement, with prior written notice to the Township, to an entity that assumes this
Agreement of which Dranoff or Carl Dranoff has Control. If this Agreement is assigned,
9.12 The Township shall not unreasonably delay acting upon written requests
requested to the extent such requests are capable of being granted by Township administrative
staff and do not require the approval of the Board of Commissioners, any committee thereof, or
any other administrative body of the Township other than Township staff consisting of, or under
the control of, the Township Manager.
9.13 If any date for the performance of any obligation by the parties or for the
delivery of any instrument or notice falls on a Saturday, Sunday, or federal holiday, then
compliance with such obligation or delivery shall be deemed acceptable on the next business day
following such Saturday, Sunday, or federal holiday.
9.14 This Agreement shall be governed, interpreted, construed, and enforced under
the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws rules.
9.15 The individuals executing this Agreement on behalf of each of the respective
parties represent and warrant that the execution and performance of this Agreement by such
party has been duly authorized by all applicable laws and regulations and all necessary corporate
action, and that this Agreement constitutes the valid and binding obligation of such party,
enforceable in accordance with its terms.
9.16 Dranoff acknowledges and agrees that the Township does not have any
authority to bind any third party, including, without limitation, SEPTA or Amtrak. Dranoff shall
not have a right to bring a claim against SEPTA or Amtrak under this Agreement. The
Township shall have no liability for any action or inaction of SEPTA or Amtrak, and neither
SEPTA nor Amtrak shall have any liability for any action or inaction of one another or the
Township.
By:
Name:
Title:
________________________________
By:
Name:
Title:
Milestone Date
Making of initial application for Land Development Approvals March 31, 2011
Closing on Amtrak Property Acquisition Within the time period
required by the
Amtrak/Dranoff
Agreement of Sale, as the
same may be extended by
Amtrak
Commencement of Construction of Project December 31, 2012
Substantial Completion of Construction of Project Four Years from the
Commencement of
Construction
Except for the date set forth for closing under the Amtrak Agreement of Sale as set forth above,
the dates set forth in this Schedule are subject to extension by reason of Events of Force Majeure
as set forth in Section 2.1 hereof.
Notwithstanding the above, nothing shall preclude the Township’s rights under this Agreement
to terminate this Agreement or to require performance of Dranoff’s obligation to pay
Reimbursable Expenses which Dranoff owes to the Township pursuant to this Agreement if the
Amtrak Agreement of Sale is not executed and delivered on or before June 30, 2010, as more
fully provided in Sections 1.1(c) and 5.2 hereof.