REAL ESTATE DEVELOPMENT AGREEMENT
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Summary
A Real Estate Development Agreement is used to spell out the terms related to buying, developing and managing specific real property and improvements thereon. The terms of the Real Estate Development Agreement will require substantial forethought related to analysis of zoning restrictions, compliance with state and local laws and ordinances, licensing and permitting, contractor and sub- contractor procurement, improvement schedules and marketing programs. In addition, advance commitments from tenants and/or buyers may be required to ensure the maintenance of necessary funding.
0bject
Describe the subject property. If not already owned by the parties, how will the subject property be purchased? What kind of development is contemplated? Are the parties planning a commercial office building, shopping center, residential apartments or condos? The nature of the development will have major repercussions on the way the agreement is structured.
Type of Company
What kind of business form will be utilized to carry out the operations of the joint venture? What will the distribution of ownership be? What are the capital contributions? Who will serve what executive roles?
Services Rendered
Who will be responsible for due diligence and assuring compliance? Who will be responsible for locating contractors, marketing the project, or managing the property? The parties will invariably make use of third-parties to effectuate the development. Contractors, brokers, lawyers, accountants, engineers and architects. The fees for these third-parties vary widely and the parties should have a clear understanding in the Agreement as to how these third-parties will be chosen and how their fees will be negotiated.
Financial
How will the venture be financed? Will the project require additional funding? Will the parties use the Company as a platform for a private placement or public offering? Will construction loans be utilized? What kind of commitments will be required in order to qualify for lender financing?
Covenants, Representations & Warranties
Transfers
What rights and obligations does a partner have following early exit from the joint venture? Include Rights of First Refusal and Buy-Sell provisions.
Compliance with Applicable Law
Compliance with all applicable laws, regulations, rules and orders of governmental authorities is imperative because non-compliance could have a material adverse effect on the business affairs or financial condition of the Company.
No Restrictive Covenants
No party should enter into any agreement which would impair or inhibit the Company's ability to conduct its business as contemplated herein or otherwise frustrate the Joint Venture.
Organization
Each party should have all requisite authority to enter into the Joint Venture Agreement and to consummate the transactions contemplated.
Consents
Each party represents and warrants that it will use all commercially reasonable efforts to obtain any and all approvals or consents of, and to make all notices and filings with, all governmental authorities necessary for the parties to enter into this Joint Venture Agreement and for the Company to conduct its Business as contemplated hereby, including, without limitation:
Exclusivity
The Company should be the exclusive vehicle for the parties to pursue their business project or agenda.
Indemnification
Each party should agree that they will hold harmless and indemnify the Company and other partners from all costs and expenses associated with defending any action from a violation of the Agreement.
Termination
The Agreement terminates when the business contemplated by the agreement is complete or: or a party declares bankruptcy, receivership, or it dissolves; or all the parties voluntarily agree to terminate it.
Restrictive Covenants
Such restrictive covenants offer the Company statutory remedies for violation and often prevent a Partner from unfairly competing against it or disclosing its confidential business information. As always, ensure any such restrictive covenant is within statutory parameters.
Mediation and Arbitration
Mediation and Arbitration should always specify a location in Client's jurisdiction (preferably, in the same county where they run their business). Mediation is a non-binding way to settle the dispute quickly and amicably. If unable to settle in mediation, arbitration is first option available. Arbitration is the preferred alternative to litigation because of speed, cost, and ability to maintain low profile (no info is publicly available).
Governing Law
Always stipulate that the contract will be governed under whatever law the Client ordinarily conducts business. Always make sure that venue and jurisdiction are as convenient to client as possible.
No Modification or Waiver
No modifications except those specifically agreed upon by the parties in writing. Any waiver of a term or provision will not act as a waiver of any other provision.
Notices
Notices should always list the current and best addresses where each party may contact the other for whatever reason.
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