Exhibit 10.11
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DEVELOPMENT AGREEMENT
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(SEMTECH)
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of
April 11, 2000 ("Execution Date"), by and between SEMTECH CORPORATION, a
Delaware corporation ("Owner"), and VOIT DEVELOPMENT CO., INC., a California
corporation ("Developer"), with respect to the following matters.
W I T N E S S E T H:
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A. Owner is the owner of approximately 13.34 acres of unimproved real
property located at the northeast corner of Mission Oaks Boulevard and Flynn
Road, in the City of Camarillo ("City"), California ("State"), which is more
particularly described on Exhibit "A" attached hereto (the "Land").
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B. As more fully set forth below in this Agreement, Owner desires to
engage Developer to undertake the process of obtaining the entitlements and
preparing preliminary development documents for approximately 219,360 square
feet of office/research and development space within three (3), two-story,
concrete tilt-up buildings, generally as depicted on the site plan attached
hereto as Exhibit "B" ("Site Plan"), which will be divided into three (3)
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phases: (i) the first phase will consist of a single, two-story concrete tilt-up
building of approximately 85,360 square feet, approximately 516 surface parking
spaces, and the ancillary improvements and landscaping depicted on the Site Plan
as "Phase 1", (ii) the second phase will consist of a single, two-story,
concrete tilt-up building of approximately 67,000 square feet, approximately 157
surface parking spaces, and the ancillary improvements and landscaping depicted
on the Site Plan as "Phase 2", and the third phase will consist of a single,
two-story, concrete tilt-up building of approximately 67,000 square feet,
approximately 226 surface parking spaces, and the ancillary improvements and
landscaping depicted on the Site Plan as "Phase 3".
C. As more fully set forth below in this Agreement, Owner desires to
engage Developer to obtain the entitlements for Phases 1, 2 and 3 and to
develop, and construct only Phase 1, i.e., Developer will not be responsible for
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developing or constructing Phase 2 or 3. For the purposes of this Agreement, the
"Project" shall refer to (i) the entitlements for Phases 1, 2 and 3, and (ii)
the development and construction of Phase 1.
AGREEMENT
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NOW, THEREFORE, incorporating the foregoing recitals, and in consideration
of the mutual covenants herein contained and of other good and valuable
consideration, the parties hereto agree as follows.
ARTICLE 1
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DEFINED TERMS
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The following capitalized terms shall have the meanings set forth below:
"Completion Date" shall mean the date on which the Architect certifies to
Owner and Developer that the work on the Project has been substantially
completed, including all tenant improvements, landscaping, driveways, except for
any punchlist items which, in the aggregate (and together with a contingency of
twenty-five percent (25%) thereof), do not exceed One
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Hundred Thousand and no/100 Dollars ($100,000.00), and a certificate of
occupancy (or its equivalent) has been issued by the City for the Phase 1
improvements which allows Owner to occupy the improvements for their intended
purpose.
"Fixed Price" shall mean the sum of Ten Million Two Hundred One Thousand
Six Hundred Sixty-Two and No/100 Dollars ($10,201,662.00), as increased or
decreased by (a) changes in the scope of work caused by Owner or City, (b)
delays in the prosecution of the work caused by Owner or City, (c) the actual
cost of the items for which an "allowance" is indicated on Exhibit "C" attached
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hereto, including, without limitation, the various fees, charges, exactions and
requirements imposed by the City in connection with obtaining the entitlements.
ARTICLE 2
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APPOINTMENT AND TERM
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2.1 Appointment. Owner hereby engages Developer to oversee, arrange,
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supervise and coordinate on behalf of Owner all planning, development and
construction services for the planning, design, permitting and construction of
the Project in accordance with the terms of this Agreement, and Developer hereby
accepts such engagement on the terms and conditions herein contained. Developer
accepts the relationship of trust and confidence established by this Agreement
and covenants with Owner to perform its obligations under this Agreement in
accordance with the customary standard of care in the industry for such work and
in furthering the interests of the Owner in the performance of the services to
be provided by Developer hereunder.
2.2 Term. The term of this Agreement ("Term") shall commence on the
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Execution Date and shall terminate upon the Completion Date unless terminated
earlier pursuant to the provisions of Article 8 of this Agreement.
ARTICLE 3
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RELATIONSHIP
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Developer shall at all times be an independent contractor and not an agent
or employee of Owner. Nothing herein shall be deemed to create a partnership or
joint venture between Developer and Owner or otherwise provide Developer with
any ownership interest in all or any portion of the Project or the Land.
ARTICLE 4
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DEVELOPMENT PROCESS
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4.1 Development Documents and Schedule.
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1. Preliminary Development Documents. Developer has provided Owner with a
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complete set, and Owner hereby approves the form and content, of the Summary
of Phase 1 Drawings, Specifications and Reports (including the
Clarifications, Alternates and Allowances attached thereto) described on
Exhibit "D" attached hereto ("Concept Plans").
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2. Preliminary Project Development/Construction Schedule. Owner hereby
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approves the estimated schedule for the development and construction of the
Project in the form attached hereto as Exhibit "E" ("Preliminary Schedule").
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Developer shall endeavor to conform to
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the Schedule; however, Owner acknowledges and agrees that forces beyond
Developer's reasonable control, such as the actions or inactions of
governmental agencies, third parties, inclement weather, unavailability of
labor or materials and actions or inactions of Owner could cause delays in
the Schedule.
4.2 Development of the Project. During the Term, the Developer shall
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perform the following services.
3. Engagement and Supervision of Professionals. Developer shall, for the
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benefit of Owner, engage Poliquin Kellogg Design Group ("Architect"), South
Bay Engineering Company ("Engineer"), Coco Traffic Engineers ("Traffic
Engineer"), Earth Systems Consultants ("Soils Engineer"), Valley Commercial
Contractors, L.P. ("Contractor"), and such other engineers, designers,
experts and consultants, including, without limitation, testing and
inspection consultants and roof inspectors, as reasonably necessary or
appropriate, to provide design services for the entitlement, planning,
development and construction of the Project. Owner hereby approves the
selection of the foregoing parties, and Developer shall have the right to
replace any of such parties with similarly qualified and experienced
parties, and shall provide written notice thereof to Owner. Upon engaging
any additional consultants, Developer shall provide prior written thereof to
Owner. Owner acknowledges that Contractor is an affiliate of Developer.
Developer shall negotiate the form and execute all agreements with
consultants or other professionals providing goods or services for the
Project, and all such agreements shall provide that any insurance coverage,
representations or warranties made thereunder are made for the benefit of
Owner and Developer. Developer shall cause the parties engaged pursuant to
this Section 4.2.1 to prepare complete plans, specifications and working
drawings for the construction of the Project which are consistent with the
Concept Plans (the "Submitted Plans"), copies of which shall be delivered to
Owner. Developer shall supervise all of such architectural/engineering and
design services to assure that the Submitted Plans will be prepared and be
substantially consistent with the Concept Plans. Owner shall have ten (10)
days to provide Developer with written notice of any proposed changes to the
Submitted Plans or the corresponding specifications, and the failure to do
so shall be deemed to constitute Owner's approval thereof. To the extent
that any such changes are not consistent with, or exceed the scope of, the
Concept Plans, all additional costs thereof (including, without limitation,
entitlement, design, development, construction, professional services,
delay, overhead and the like) shall be borne by Owner and increase the Fixed
Price. Upon actual or deemed approval by Owner, the Submitted Plans shall be
referred to herein as the "Approved Plans and Specifications." The Approved
Plans and Specifications shall not be revised by Developer in any material
respect without the prior written consent of Owner.
4. Procuring Entitlements, Permits and Approvals. Immediately following the
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engagement of the Architect provided above, Developer shall process, procure
and maintain in the name of Owner all necessary entitlements and
governmental approvals for the design, development, construction, and
occupancy of the Project, including, without limitation, any special
permits, rezoning, subdivisions, variances or authorizations required by
applicable law. The parties anticipate that the entitlements for the Project
will consist of a lot line adjustment (to cause each Phase to exist on a
separate legal parcel), a mitigated negative declaration (to comply with the
California Environmental Quality Act of 1970 (CEQA)), and planned
development permit by the City. In addition, Developer shall process any
other entitlements, applications or approvals necessary for the development,
construction or occupancy of Phase 1, including, without limitation,
building permits. Developer shall maintain true and complete copies of all
such permits and authorizations and, at the request of Owner, promptly
provide copies of
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same to Owner. In addition, Developer shall make all requisite arrangements
with public and/or private utilities to ensure that water, sewer, electric,
gas and other utilities will be available to serve the Project.
5. Engagement of Contractor. Developer shall negotiate and execute all
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necessary construction and other contracts for the construction of the
Project, all of which shall be consistent with the Approved Plans and
Specifications. Owner shall be a beneficiary of any insurance coverage,
representations or warranties under the contract with the General
Contractor, including, without limitation, any equipment and material
warranties; however, Owner shall not have any liability under such
agreement. Owner shall have the right to approve any change order which
results in a material modification of the Approved Plans and Specifications.
6. Project Schedule. Following completion of the Approved Plans and
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Specifications and the issuance of the permits required for the construction
of Phase 1, if the Preliminary Schedule has changed, Developer shall prepare
and deliver to Owner a "Project Schedule" for the Project which shall set
forth the dates for starting and completing the various stages of
construction of the Project and which shall substantially conform to the
timing set forth in the Preliminary Schedule, except to the extent that
delays were caused by events beyond Developer's reasonable control.
Developer shall not voluntarily delay items on the Project Schedule that
would result in a material delay of the Completion Date without the Owner's
prior written consent. Developer shall keep Owner advised, on a monthly
basis, as to the progress of the various stages of construction under the
Project Schedule that affect the Completion Date by providing a written
report.
7. Monitoring Construction. Developer shall monitor and coordinate all
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construction work by Contractor and others engaged for the construction of
the Project. Developer shall cause the inspection of, as necessary, the
progress of the construction of the Project and verify that all materials
and labor furnished in connection therewith have been supplied or completed
in a good and workmanlike manner and that all work is performed in
substantial accordance with the Approved Plans and Specifications, free and
clear of all liens (to the extent that Developer has received funds therefor
from Owner) and in compliance with all laws and permits affecting the
Project. Developer shall confirm that such construction is being carried out
in within the time allocated under the Project Schedule. During the course
of construction of the Project, Developer shall on a monthly basis, submit
to Owner a written report on the status of the construction of the Project,
including verification that the Project Schedule is being met or an
explanation of any delays that would materially delay the Completion Date.
Upon request, Developer shall certify the foregoing in writing to Owner and,
if requested by Owner, any construction lender designated by Owner.
8. Completion of Construction. When the construction of the Project has been
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substantially completed in substantial accordance with the Approved Plans
and Specifications and a Certificate of Occupancy (or its equivalent) has
been issued for the habitable improvements included in the Project,
Developer shall obtain, on behalf of Owner, a certification to that effect
from the Architect (which shall include any outstanding issues or items
which require correction ("Punchlist"), whereupon the Project shall be
deemed substantially completed. Promptly following the Completion Date,
Developer shall complete the items on the Punchlist, and upon the completion
thereof, as certified by Architect, the Project shall be deemed complete.
Following the Completion Date, Developer shall cooperate with Owner's
efforts to enforce all warranties, representations and guarantees of the
Architect, Contractor and subcontractors, suppliers and materialmen, and all
other persons furnishing supplies,
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materials, equipment, or services in connection with the construction or
equipping of the Project, with respect to any defects in the construction of
the Project or the installation or operation of any fixture or equipment
therein.
9. Legal Actions. Developer shall not have any obligation to institute,
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commence and prosecute on behalf of Owner any legal actions, proceedings or
arbitrations in connection with the construction of the Project or to defend
or cause the defense of Owner in connection with any legal action,
proceedings or arbitrations commenced against Owner, except at Owner's sole,
additional expense. All such legal actions, and any and all decisions with
respect to the prosecution and defense of such actions, shall be made by
Owner with counsel approved by Owner.
10. Construction Financing. Developer shall assist Owner, if requested by
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Owner, in complying with the reasonable terms of any construction and
development financing for the Project obtained by Owner.
4.3 Employees. Developer shall employ such employees as shall be
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necessary or appropriate to enable Developer at all times to oversee, arrange,
supervise, coordinate and provide the required services to the Project pursuant
to this Agreement. Such employees shall be deemed to be the employees of
Developer, and Developer shall indemnify, defend and save Owner harmless from
and against all claims made by such employees based on job related illness or
injury. The foregoing indemnity shall survive the termination of this Agreement.
All matters pertaining to the employment, training, conduct, supervision,
compensation, promotion and discharge of such employees shall be the
responsibility of Developer and Developer shall comply with all applicable laws
and regulations having to do with worker's compensation, social security,
unemployment insurance, hours of labor, wages, working conditions and safety and
similar matters with respect to such employees. Developer hereby designates
Timothy F. Regan as project manager and Developer's representative (the
"Developer Representative") for the Project. The Developer Representative shall
not be replaced without the Owner's prior written consent, which shall not be
unreasonably withheld or delayed. Owner shall have the right to require
Developer to replace the Developer Representative, or any other employee of
Developer providing services hereunder, if Owner has reasonable objections to
any such individual. Owner hereby designates Gary Stanulis as the "Owner
Representative". Owner shall have the right to replace the Owner Representative
by providing written notice thereof to Developer. The Developer Representative
shall have the authority to bind Developer; and the Owner Representative shall
have the right to bind Owner.
4.4 Lender and Legal Compliance. Developer shall be responsible for
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the planning and development of the Project in compliance with all terms and
conditions in any private covenants, conditions and restrictions (CC&Rs), ground
leases, initial space leases, mortgages, other security instruments or similar
encumbrances affecting the Project which are disclosed to Developer by Owner in
writing before the commencement of work.
4.5 Owner Information. Developer shall make the Developer
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Representative and its other personnel available at reasonable times for
communications with Owner and will keep Owner advised of matters affecting the
Project and will provide regular updates regarding the status of the Project on
a basis reasonably acceptable to Owner.
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ARTICLE 5
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DEVELOPER'S AUTHORITY
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Developer shall have only the power and authority expressly delegated to it
hereunder. Developer shall not be permitted to execute any agreement or change
orders on behalf of, or in the name of, Owner unless Owner specifically
authorizes such action by Developer.
ARTICLE 6
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INSURANCE
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During the Term, Owner and Developer shall each procure and maintain, or
caused to be maintained, on behalf of the Owner, insurance coverage in the form,
amount and manners specified on Exhibit "F" attached hereto.
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ARTICLE 7
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OWNER'S RIGHT TO INSPECT
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Owner shall have the right, at its sole cost and expense, during normal
business hours, to examine the books and records maintained by Developer
pertaining to the performance of Developer's services under this Agreement.
ARTICLE 8
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TERMINATION
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8.1 Termination. Either Owner or Developer shall have the right to
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terminate this Agreement at any time for any default by the other party in the
performance of its duties hereunder (including all exhibits hereto) or under any
of the documents executed and delivered from time to time by Owner or Developer,
if:
11. in the event such default is a monetary default, such default continues for
a period of ten (10) days after notice is given to the defaulting party,
12. in the event such default is a nonmonetary default, such default continues
for a period of thirty (30) days after notice is given to the defaulting
party if such default can reasonably be cured within such period, otherwise,
it shall be sufficient if such party commences the cure thereof within such
30-day period and diligently prosecutes it to completion, or
13. any party hereto makes an assignment for the benefit of creditors, or if a
receiver, trustee, custodian, guardian, liquidator or similar agent is
appointed with respect to such party, or if a petition is filed by or with
the consent of any party hereto under any Federal or state law concerning
bankruptcy, insolvency, reorganization, arrangement, or relief from
creditors, or if such a petition is filed against such party and such
petition is not dismissed within 90 days thereafter.
14. Notwithstanding the foregoing, neither party shall have any cure period with
respect to a breach caused by such party's fraud or intentional misconduct.
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8.2 Remedies. In addition to terminating this Agreement based on the
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default of a party hereunder, the non-defaulting party shall have the right to
recover the actual damages caused thereby, but not any special, speculative,
consequential or punitive damages; provided, however, that in no event shall
Developer's liability exceed Four Hundred and Ten Thousand and no/100 Dollars
($410,000.00) except to the extent of Developer's gross negligence or willful
misconduct. For the purposes of this Article VIII, the parties hereto hereby
agree that Developer's failure to require any party performing services under
this Agreement to maintain commercially reasonable levels and types of insurance
shall be deemed to constitute gross negligence by Developer. The termination of
this Agreement shall not relieve any party of any of its obligations theretofore
accrued under this Agreement prior to the effective date of such termination.
ARTICLE 9
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COOPERATION
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Should any claims, demands, suits or other legal proceedings be made or
instituted by any person against Owner which arise out of any of the matters
relating to any part of the Project or this Agreement, Developer shall give
Owner all pertinent information in its possession and reasonable assistance in
the defense or other disposition thereof.
ARTICLE 10
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DELAYS
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Neither party shall be liable for its failure to perform its obligations
hereunder due to accident, unusual difficulty or inability in obtaining services
or supplies from sources usually used, inclement weather (or resulting
unfavorable site conditions), labor difficulties, the other party's failure to
perform its obligations hereunder, the actions or inactions of the City or any
subdivision thereof, the actual or potential existence on the Property of any
hazardous substances or any other causes beyond such party's reasonable control.
Either party claiming any such delay shall provide notice of such claim promptly
after the occurrence of the event causing such delay. In the case of a
continuing delay, only one claim shall be required. Each such claim shall
provide an estimate of the probable impact of such delay on the Project.
ARTICLE 11
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CONSENT; APPROVAL
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Whenever in this Agreement the consent or approval of any party is
required, such consent or approval shall be in writing only, shall not be unduly
delayed and shall only be effective if given by a duly authorized officer or
agent for the party granting such consent or approval.
ARTICLE 12
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NOTICES
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All notices and other communications provided for herein shall be in
writing and shall be sent to the address set forth below (or such other address
as a party may hereafter designate for itself by notice to the other parties as
required hereby) of the party for whom such notice or communication is intended:
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If to Owner: Semtech Corporation
652 Mitchell Road
Newbury Park, CA 91320
Attn: Mr. John D. Poe and
Mr. David G. Franz, Jr.
If to Developer: Voit Development Co., Inc.
21700 Oxnard Street
Suite 1010
Woodland Hills, CA 91367
Attn: Mr. Robert G. Lumley
Any such notice or communication shall be sufficient if sent by registered or
certified mail, return receipt requested, postage prepaid; by hand delivery; by
overnight courier service; or by telecopy, with an original by regular mail.
Any such notice or communication shall be effective upon receipt at the
appropriate address.
ARTICLE 13
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COMPENSATION
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13.1 Fixed Fee. Owner shall pay the Fixed Fee for the Project, plus
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any additional costs resulting from changes to the Submitted Plans that exceed
the scope of the Preliminary Plans or any delays of the Project Schedule caused
by Owner and/or the actions or inactions of the City. The Fixed Fee shall be
paid as follows: (a) prior to commencement of construction, Owner shall promptly
pay Developer the sum of Ten Thousand and no/100 Dollars ($10,000.00) per month
(for not more than five (5) months), plus the actual costs incurred by Developer
in connection with the Project, and (b) during construction, Owner shall
promptly reimburse Developer for the actual costs incurred by Developer in
connection with the Project, plus four and one-quarter percent (4.25%) of the
construction cost thereof (as more particularly indicated on Exhibit "C"
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attached hereto). The balance of the Fixed Fee, if any, shall be paid within
three (3) business days after the Completion Date, except for the amount of the
Punchlist, if applicable, which (together with the twenty-five percent (25%)
contingency therefor) shall be paid promptly upon the completion of each item
(as certified by the Architect), provided, however, that Developer shall not
request disbursement on account of the Punchlist more often than once per month.
13.2 Late Fee. Subject to excused delays pursuant to Article 10,
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Developer shall be liable to Owner for the following amounts (and for no other
costs associated therewith) as the result of the failure to achieve the
Completion Date: (a) One Thousand Five Hundred and no/100 Dollars ($1,500.00)
per day for each day from the thirty-first (31st) day through the sixtieth
(60th) day of delay, plus (b) Two Thousand no/100 Dollars ($2,000.00) per day
for each day from the sixty-first (61st) day through the ninetieth (90th) day of
delay. Any such late fee shall be offset against the Fixed Fee; provided,
however, that in no event shall the total late fee exceed One Hundred Five
Thousand and no/100 Dollars ($105,000.00).
ARTICLE 14
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INDEMNIFICATION
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The Developer shall indemnify, defend and hold harmless the Owner against
all claims, costs and expenses, including, without limitation, reasonable
attorneys' fees, incurred by the
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Owner and arising out of any failure of the Developer to perform any of its
obligations under this Agreement, any acts of the Developer which constitute
willful misconduct of the Developer or are beyond the scope of the Developer's
authority hereunder, or the gross negligence of the Developer.
ARTICLE 15
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ASSIGNABILITY
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The services to be performed by Developer under this Agreement are personal
to Developer and Developer shall not assign its rights or obligations under this
Agreement without the prior consent of Owner given or withheld in Owner's sole
discretion. Owner shall be permitted to assign its rights under this Agreement.
ARTICLE 16
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MISCELLANEOUS
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16.1 Entire Agreement. This Agreement contains the entire agreement
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between the parties respecting the matters herein set forth and supersedes all
prior agreements between the parties hereto respecting such matters.
16.2 Bind and Inure. Subject to Article 15 hereof, the rights, duties
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and obligations of the parties to this Agreement shall be binding upon and inure
to the benefit of the respective successors and permitted assigns of such
parties.
16.3 Amendment. This Agreement may not be amended or modified except
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by an instrument in writing and signed by all parties hereto.
16.4 Governing Law; Waiver of Jury Trial. This Agreement shall be
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governed and construed in accordance with the laws of the State. Each party
hereto waives the right of trial by jury in any action brought in connection
with this Agreement.
16.5 Headings. The headings used in this Agreement are for
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convenience only and are not to be considered in connection with the
interpretation or construction of this Agreement.
16.6 No Waiver. The failure of any party to seek redress for
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violation of, or to insist upon the strict performance of, any covenant,
agreement, provision or condition of this Agreement shall not constitute a
waiver thereof nor prevent any subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation.
16.7 Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be an original of this Agreement, but all of
which, taken together, shall constitute one and the same agreement.
16.8 Other Interests. Any party may, individually or with others, be
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engaged with respect to, or possess an interest in, any other projects and
ventures of any kind or nature, whether or not competitive with the Project, and
the other parties shall not, by virtue of this Agreement, have any rights to any
such project or any income, profits or compensation derived therefrom.
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16.9 Authority. Each party hereto has the authority to enter into
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this Agreement and be bound by its terms.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
OWNER DEVELOPER
SEMTECH CORPORATION VOIT DEVELOPMENT CO., INC.
a Delaware corporation a California corporation
By:________________________________ By:_________________________________
Its:_______________________________ Its:________________________________
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