HomeMy WebLinkAboutNo. 2241 approving a development agreement with gameday centers Southeastern, LLC and related matterst
RESOLUTION NO. 2241
A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION
APPROVING A DEVELOPMENT AGREEMENT WITH GAMEDAY CENTERS
SOUTHEASTERN, LLC AND OTHER RELATED MATTERS
WHEREAS, the South Bend Redevelopment Commission ( "Commission ") is the
governing body of the City of South Bend Department of Redevelopment established under the
Redevelopment of Cities and Towns Act of 1953, as amended, being Indiana Code § 36- 7 -14 -1
et seq. (the "Act "); and
WHEREAS, redevelopment and the stimulation of economic development are of benefit
to the health and welfare of the people of Indiana and the citizens of the City of South Bend,
Indiana (the "City "), are public uses and purposes for which public money may be spent and are
a public utility and benefit; and
WHEREAS, the Commission has the power and duty to investigate, study, and develop
areas within the corporate boundaries of the South Bend Redevelopment District (the "District ")
•that the Commission has determined to be blighted, stagnant or deteriorating in order to
encourage economic development and redevelopment; and
WHEREAS, the property located at 121 S. St. Joseph Street and more particularly
described at Exhibit A of the Development Agreement (as defined below) (the "Site ") is located
within the corporate boundaries of the City, the South Bend Redevelopment District (the
"District "), and the South Bend Central District Development Area (the "Area "), which Area has
been previously determined by the Commission to be an area needing redevelopment in
accordance with the Act; and
WHEREAS, evidence presented to the Commission suggests that additional parking in
the Area is needed to facilitate the redevelopment of the Area; and
WHEREAS, the Commission has awarded the development of the air -rights of the Site
above a proposed parking structure to Gameday Centers Southeastern, LLC (the "Developer ")
pursuant to a bid submitted by the Developer in which the Developer proposed constructing,
developing and equipping a condo and hotel development project containing approximately one
hundred fifty (150) condos and providing approximately one hundred (100) hotel spaces
(assuming the condo owners make them available for such purpose) (the "Condo
Development "); and
WHEREAS, the Developer now proposes constructing, developing, and equipping a (i)
privately owned and operated parking facility containing approximately three hundred fifty -nine
(359) parking spaces (the "Parking Facility ") and (ii) various ground floor retail shops and/or
restaurants totaling approximately 12,000 square feet of space, all on the Site and in the same
structure as the Condo Development (the "Retail Shops" and with the Parking Facility and the
Condo Development, the "Project "); and
WHEREAS, the Commission has previously offered the real estate and ground rights for
the Site for disposition in accordance with Indiana Code § 36-7 -14-22 and is now authorized to
execute a contract providing for the sale of the Site; and
WHEREAS, the Developer has submitted evidence that the Project will create
approximately 92 permanent jobs with an approximate payroll, including benefits, of $2,701,000
per year; and
WHEREAS, the evidence presented to the Commission suggests that market conditions
for available parking spaces around the Site are unpredictable at this time and that the size,
configuration and condition of the Site present challenges that may increase the cost of the
Parking Facility, which are risks that may make the completion of the Parking Facility portion of
the Project cost prohibitive; and
WHEREAS, in order to induce the Developer to undertake the Project, the Commission
desires to enter into a Development Agreement in the form attached hereto at Exhibit A (the
"Development Agreement ") whereby Commission undertakes certain obligations set forth
therein, and in consideration thereof, the Developer desires to undertake certain obligations with
respect to the Project and.the Site; and
WHEREAS, the Commission desires to approve the Development Agreement and the
documents contained or contemplated therein, including but not limited to a Contract for Sale of
Land for Private Development, a Deed and the other certificates and agreements attached thereto
or contemplated therein (collectively, the "Development Documents "), and to authorize the
President of the Commission (the "President ") or the Vice - President of the Commission (the
"Vice- President ") to execute, and the Vice - President or Secretary of the Commission (the
"Secretary ") to attest, the Development Documents, with such changes as such executing and
attesting officers may approve upon the advice of legal counsel;
THE COMMISSION NOW FINDS THAT:
The redevelopment of the Area, and particularly the Site, as proposed by the
Developer (i) may not be accomplished through the ordinary operations of private
enterprise; (ii) will promote a substantial likelihood of creating or retaining
opportunities for gainful employment and create additional business opportunities
in the Area; (iii) will serve a public purpose as it will benefit the public health,
safety, morals, and welfare of the City and the District and increase their
economic well -being and that of the State of Indiana (the "State "); and (iv) will
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' protect and increase property values in the City, the District and the State.
2. The Project will create approximately 92 permanent jobs with an approximate
payroll, including benefits, of $2,701,000 per year, which will significantly
improve the opportunities for gainful employment in the District and the City.
3. Market conditions for available parking spaces around the Site are unpredictable
at this time and that the size, configuration and condition of the Site present
challenges that may increase the cost of the Parking Facility, and said risks are at
a level which may make the completion of the Parking Facility portion of the
Project cost prohibitive.
4. The availability of additional parking spaces in the Area will increase the
likelihood of sustaining and creating further economic development and
redevelopment of the Area.
5. Without the Commission's involvement as contemplated by the Development
Documents, the development of the Site in its existing state, size and
configuration would not support the Project with the Parking Facility as currently
proposed, or any other project that would be likely to result in the Site's highest
and best use.
6. The Commission's involvement in the Project as described in this resolution and
• the Development Documents will best serve the interests of the City and its
citizens.
7. The Project, the Development Documents and the assistance thereof as set forth in
the Development Documents comply with applicable federal, state and local laws
under which the Project has been undertaken and is being assisted and the
Development Documents and the actions contemplated therein are authorized.
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND
REDEVELOPMENT COMMISSION AS FOLLOWS:
1. The Project, as proposed by the Developer and as contemplated in the
Development Documents, is hereby approved.
2. The Commission hereby approves the Developer Documents in the form attached
hereto as Exhibit A, including the Development Agreement, the Contract for Sale of Land for
Private Development, the Deed and the other certificates and agreements attached thereto or
contemplated therein.
3. The Commission hereby authorizes the President or the Vice - President to execute,
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iand the Vice - President or Secretary to attest, the Development Documents with such changes
either in form or in substance as such executing and attesting officers may approve upon the
advice of legal counsel with such approval to be conclusively evidenced by such execution and
attestation.
4. The staff is hereby authorized to administer the Developer Documents, and the
President, Vice - President, the Secretary, and the Director of Economic Development of the
Department of Redevelopment are each authorized to execute any administrative certificates or
documents related to the administration of the Development Documents on behalf of the
Commission.
5. The sale and transfer of the entire Site to the Developer as set forth in, and subject
to the terms, conditions and restrictions of, the Development Documents is hereby approved.
6. This Resolution shall be in full force and effect after its adoption by the South
Bend Redevelopment Commission.
•
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ADOPTED at a meeting of the South Bend Redevelopment Commission held on April
21, 2006 at 1308 County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana
46601.
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
South Bend Redevelopment Commission
ATTEST:
gnat
Gre &ory S. Downes, Secretary
Printed,Name and l itte
South Bend Redevelopment Commission
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•
DEVELOPMENT AGREEMENT
By and Between
SOUTH BEND REDEVELOPMENT
COMMISSION &
� GAMEDAY CENTERS
SOUTHEASTERN. LLC
•
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the or this "Agreement"), made on April 21,
2006, by and between the South Bend Redevelopment Commission (the "Commission "),
established under the Redevelopment of Cities and Towns Act of 1953, as amended, being
Indiana Code § 36- 7 -14 -1 et seq. (the "Act"), and having its office at 1200 County -City Building,
South Bend, Indiana, and Gameday Centers Southeastern, LLC, a Georgia limited liability
company (the "Developer"), having its principal place of business at 2555 Cumberland Parkway
Suite 200, Atlanta, Georgia 30339.
RECITALS
WHEREAS, redevelopment and the stimulation of economic development are of benefit
to the health and welfare of the people of Indiana and the citizens of the City of South Bend,
Indiana (the "City "), are public uses and purposes for which public money may be spent and are
a public utility and benefit; and
•
WHEREAS, Commission has the power and duty to investigate, study, and develop
areas within the corporate boundaries of the South Bend Redevelopment District (the "District ")
that the Commission has determined to be blighted, stagnant or deteriorating in order to
encourage economic development and redevelopment; and
WHEREAS, the site located at 121 S. St. Joseph Street and more particularly described
at Exhibit A (the "Site ") is located within the corporate boundaries of the City, the South Bend
Redevelopment District (the "District"), and the South Bend Central District Development Area
(the "Area "), which Area has been previously determined by the Commission to be an area
needing redevelopment in accordance with the Act; and
WHEREAS, the Developer proposes to construct on the Site a parking facility
containing three hundred fifty -nine (359) parking spaces, a condo and hotel development
containing approximately one hundred fifty (150) condos and approximately one hundred (100)
hotel spaces, and a ground floor retail shops and/or restaurants totaling approximately 12,000
square feet; and
WHEREAS, the Developer anticipates that the Project (as defined in Section 3.2) will
create approximately 92 permanent jobs with an approximate payroll, including benefits, of
$2,701,000 per year; and
•
•
WHEREAS, in order to induce the Developer to undertake the Project, the Commission
desires to undertake certain obligations set forth therein, and in consideration thereof, the
Developer desires to undertake certain obligations with respect to the Project and the Site; and
WHEREAS, the Commission has determined that the redevelopment of the Area, and
particularly the Site, as proposed by the Developer (i) may not be accomplished through the
ordinary operations of private enterprise; (ii) will promote a substantial likelihood of creating or
retaining opportunities for gainful employment and create additional business opportunities in
the Area; (iii) will serve a public purpose as it will benefit the public health, safety, morals, and
welfare of the City and the District and increase their economic well -being and that of the State
of Indiana (the "State "); and (iv) will protect and increase property values in the City, the
District and the State, and therefore, the Commission's involvement in the Project as described
herein will best serve the interests of the City and its citizens; and
WHEREAS, the Commission believes that the Project complies with applicable federal,
state and local laws under which the Project has been undertaken and is being assisted; and
WHEREAS, the Commission and Developer each understand and agree that certain
actions contemplated by this Agreement are required to be undertaken by persons, agencies or
entities that are not party to this Agreement and that any action by such third parties shall require
independent approval by the respective person, agency, entity or governing body thereof.
NOW, THEREFORE, in consideration of the mutual promises and obligations in this
Agreement, the adequacy of which consideration is hereby acknowledged, the Parties agree as
follows:
SECTION 1.0 DEFINITIONS.
Defined terms are indicated by initial capital letters. Defined terms shall have the
meaning set forth herein, whether or not such terms are used before or after the definitions are set
forth. The following terms are more specifically defined below:
1.1
Area Plan Commission
St. Joseph County Area Plan Commission
1.3
City
City of South Bend, Indiana
1.4
Commission
South Bend Redevelopment Commission
1.5
County
St. Joseph County, Indiana
1.6
Developer
Gameday Centers Southeastern, LLC
1.7
Effective Date
The date the Agreement is executed by the Commission or
the Developer, whichever is later as set forth at Section 2.1.
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1.8
State
State of Indiana
1.9
Term
The Term of this Agreement commencing upon the Effective
Date and shall continue as set forth in Section 2.2.
SECTION 2.0 EFFECTIVE DATE AND TERM.
2.1 Effective Date. This Agreement shall become effective upon the date this
Agreement is executed by the Commission or the Developer, whichever is later ( "Effective
Date ").
2.2 Term. The term of this Agreement ( "Term ") shall commence upon the Effective
Date and shall continue for a period of five (5) years. The terms of this Agreement as they relate
to the Commission Purchase Option shall survive the expiration of the Agreement should the
Developer exercise said Commission Purchase Option.
SECTION 3.0 DEVELOPER'S OBLIGATIONS.
3.1 Generally. Developer acknowledges and agrees that Commission's agreement to
perform and abide by the covenants and obligations set forth in this Agreement is material
consideration of Developer's commitment to perform and abide by the covenants and obligations
of Developer contained in the Agreement.
3.2 Project Development. The Developer shall construct, develop and equip a
structure on the Site consisting of (i) a parking facility containing approximately three hundred
fifty -nine (359) parking spaces (the "Parking Facility "); (ii) a condo and hotel development
containing approximately one hundred fifty (150) condos and providing approximately one
hundred (100) hotel spaces (assuming the condo owners make them available for such purpose)
(the "Condo Development "); and (iii) ground floor retail shops and/or restaurants totaling
approximately 12,000 square feet (the "Retail Shops" and with the Parking Facility and the
Condo Development, the "Project").
3.3 Project Requirements. In completing and operating the Project, the Developer
hereby agrees to do the following:
A. Provide the Commission the opportunity to approve the design work for
the Project, including the structure's aesthetic presentation (including its
initial color, texture and style), the Project's layout (including but not
limited to the location of the entrance and exit of the Parking Facility), the
Project's compatibility with neighboring structures and streets, and its
general guidelines for signage; provided that such approval by the
Commission shall not be unreasonably withheld.
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B. Construct the Parking Facility in a manner that provides for least one
hundred twenty -five (125) parking spaces in addition to the spaces
constructed to support the Project (the "Additional Spaces "). The amount
of parking spaces necessary to support the Project as currently proposed
shall be deemed to be two hundred thirty -four (234) (the "Project
Spaces ") unless the Developer provides evidence to the Commission, to
the Commission's satisfaction, that the Developer's Project will require
less than two hundred thirty -four (234) spaces to support itself. It is the
intent of the parties that the Additional Spaces be regularly available for
uses unrelated to the Condo Development or the Retail Shops, such as
monthly parking for employees of nearby businesses, reserved parking for
individuals or for owners or tenants of nearby businesses or organizations,
or hourly, daily or event parking for any purpose. Nothing in this
paragraph shall require the Developer, after the Project's completion, to
discriminate among potential parkers based on whether their use is
affiliated with the Project provided that all of the Project Spaces have been
allocated among the potential uses of the Project as contemplated by the
Final Site Plans approved by the Commission pursuant to the Purchase
Contract (as defined herein).
C. Investigate alternatives to construct the Parking Facility in a manner to
lower the amount of Construction Costs (as defined at Section 5.5)
allocable per parking space, including expanding the Site footprint to the
north.
D. Use its best efforts to employ local contractors or subcontractors for the
construction and equipping of the Project; provided however, that this
requirement shall in no way prohibit the Developer from using non -local
contractors if such use will result in a significant savings to the Developer.
E. Refrain from seeking local public incentives for the Project other than
those incentives provided for in this Agreement.
F. Execute a Contract for Sale of Land for Private Development in the form
set forth at Exhibit B (the "Purchase Contract ").
G. Provide the necessary easements and access to allow the construction of a
tunnel between the Parking Facility and the College Football Hall of Fame
and/or Century Center.
H. Work with the Commission and the neighboring property owners to
provide a solution for the location of dumpsters servicing the properties on
the same block as the Site. (This commitment does not obligate the
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Developer to be responsible for storing the dumpsters of neighboring
property owners but requires the Developer to work in good faith with the
Commission and said neighboring property owners to make the alley west
of the Site more attractive, which may, if acceptable to the Developer,
include the storage of the dumpsters in the Parking Facility.)
3.4 Timely Completion. The Developer shall complete the Parking Facility by
December 1, 2007 and the Condo Development by February 1, 2008.
3.5 Developer's Deliveries. The Developer shall provide the Commission with the
following documentation on or before May 31, 2006:
A. Draft Design Proposals and Architectural Renderings for Commission
Approval;
B. Updated Site Plan and Project Schedule
C. Developer's Marketing Plan
D. Signage Proposals
Upon completion, this documentation shall be incorporated as exhibits to the Agreement to the
extent that such documentation is referenced herein.
The Developer shall further be responsible for providing the Commission the deliverables
required under the Purchase Contract.
3.6 Private Investment. The Developer, agrees to the private investment goal for the
Project of a minimum Twenty Five Million Dollars ($25,000,000), whether through equity, debt,
third -party investment or some combination thereof, with the final amount to depend on its
ultimate square footage and construction costs.
SECTION 4.0 COMMISSION'S OBLIGATIONS.
4.1 Generally. The Commission acknowledges and agrees that Developer's
agreement to perform and abide by the covenants and obligations set forth in this Agreement is
material consideration of Commission's commitment to perform and abide by the covenants and
obligations of the Commission contained in the Agreement.
4.2 Conveyance of Interest in Site. The Commission shall convey the Site,
including the real estate and the air - rights, to the Developer pursuant to the terms of the Purchase
Contract and this Agreement in consideration for the covenants and obligations of the Developer
set forth herein and in the Purchase Contract.
4.3 Cooperation Regarding Parking Cost. At the Developer's request, the
10 Commission will review proposals regarding the design and construction of the Parking Facility
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�! and provide any suggestions the Commission may have to lower the cost or improve the
efficiency of the Parking Facility. The Commission will further consider any proposal the
Developer provides the Commission to lower the per -space Construction Costs of the Additional
Spaces, including expanding the site to the north, with the understanding that the Commission
shall not be bound to accept any such proposals.
4.4 Commission Purchase Option. If the Developer exercises its Commission
Purchase Option (as defined in Section 5.2), the Commission shall further be obligated to the
extent and in the manner set forth in Section 5 hereof.
4.5 Zoning, Variance, Special Permits, Etc. The Commission shall continue to
assist the Developer in its efforts to seek zoning, variance, subdivision, or special permits
required to complete the Project as proposed. Should the Developer petition the Area Plan
Commission for a variance to allow the Developer to expand the Project by adding an additional
floor to the Parking Facility and up to two (2) additional floors to the Condo Development, the
Commission shall express its support for such variance in a form of a letter to the Area Plan
Commission.
4.6 Cooperation to Expedite Process. Consistent with City policy, the Commission
hereby agrees to endorse and support the Developer's efforts to expedite the Project through the
required planning, design, permitting, waiver and related regulatory processes.
is SECTION 5.0 COMMISSION PURCHASE OPTION.
5.1 Generally. It is the intent of the Developer to own, construct, develop, equip and
operate the Project in a manner exclusive of public assistance or involvement other that which is
set forth in the Purchase Contract or Sections 4.2 and 4.3 hereof. However, the market
conditions for available parking spaces around the Site are unpredictable at this time. Moreover,
the size, configuration and condition of the Site present some challenges that may increase the
cost of the Parking Facility, which in combination with the volatility of the downtown market for
parking spaces presents certain risks, which may make the completion of the Parking Facility
cost prohibitive. The Commission recognizes that additional parking downtown is needed to
further the downtown's development and redevelopment and the importance of the construction
of the Project Facility and the Additional Spaces. In order to reduce the risks associated with the
construction and operation of the Parking Facility and to induce the Developer to complete the
Project, the Commission has agreed to provide the Developer a Commission Purchase Option as
set forth in this Section.
5.2 Commission Obligation to Purchase Parking Facility. Should the Developer
determine, in its sole discretion, private ownership of the Additional Spaces is no longer viable
or advisable considering the market conditions, the Developer may elect to have the Commission
purchase the Commission Facility (as defined in Section 5.3) for the Commission Purchase Price
(as defined in Section 5.4) in accordance with the provisions of this Section 5 (the "Commission
Purchase Option "). The Developer may elect the Commission Purchase Option any time from
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the date of the Parking Facility's completion ( "Parking Facility Date
Completion " ) to the date
P
which is earlier of (i) sixty (60) days from the Parking Facility Completion Date or (ii) April 30,
2008. The completion of the Parking Facility shall be evidenced by the Parking Facility
Certificate of Completion issued by the Commission pursuant to the Purchase Contract in the
form set forth therein (the "Parking Facility Certificate of Completion "). The Developer shall
provide notice of its election to the Commission by certified mail in accordance with Section
12.10 hereof (the "Notice of Election "). The Commission shall purchase the Commission
Facility from the Developer within three (3) months of the receipt of the Developer's Notice of
Election.
5.3 Description of Commission Facility. If the Developer exercises its Commission
Purchase Option in accordance with the terms of this Agreement, the Commission shall purchase
the real estate of the Site and at least three (3) floors of the Parking Facility (approximately 215
parking spaces), which contains the Additional Spaces (at least 125 parking spaces), along with
some Project Spaces (approximately 90 parking spaces) (collectively, the "Commission
Facility "). The Commission Facility shall include any improvements thereto (expressly
excepting therefrom the Condo Development, the Retail Spaces, and any remaining portion of
the Parking Facility not within the Commission Facility and any improvements in such areas).
5.4 Calculation of Commission Purchase Price. If the Developer exercises its
Commission Purchase Option, the Commission shall pay for the Commission Facility the sum of
(i) the Construction Costs for the Additional Spaces but only to the extent that the Construction
Costs do not exceed Twenty -two Thousand and 00 /100 Dollars ($22,000.00) per space and (ii)
the Construction Costs for fifty (50) Project Spaces to the extent the Construction Costs exceed
Thirteen Thousand and 00 /100 ($13,000.00) per space but only to the extent such Construction
Costs not exceed Twenty -two Thousand and 00 /100 Dollars ($22,000.00) per space. (Example
1— Construction Costs total $22,000 per space: 125 Additional Spaces at $22,000 per space
totals $2,750,000 and 50 Project Spaces at $9,000 per space ($22,000 less 13,000) totals
$450,000 for a Commission Purchase Price of $3,200,000.) (Example 2— Construction Costs
total $20,000 per space: 125 Additional Spaces at $20,000 per space totals $2,500,000 and 50
Project Spaces at $7,000 per space ($20,000 less 13,000) totals $350,000 for a Commission
Purchase Price of $2,8500,000.) The amount of Additional Spaces used to calculate the
Commission Purchase Price shall not exceed one hundred twenty -five (125) except as provided
for in Section 5. 10, in which case the amount of Additional Spaces used to calculate the
Commission Purchase Price shall not exceed one hundred fifty (150).
5.5 Scope of Construction Costs. Construction Costs, as used in Section 3 and
Section 5 of this Agreement shall mean the construction costs attributable to the construction of
the Parking Facility based on the costs listed in the estimate total and summary of such costs
provided the Commission and set forth at Exhibit C but shall exclude (i) any portion of
development overhead costs or other related soft costs attributable to construction, operation or
equipping of the Parking Facility or the Project as a whole, (ii) any costs related to supplemental
site work, an example of which are set forth at Exhibit D; (iii) any costs associated with
feconstructing, developing or equipping the Condo Development, which includes but is not limited
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to the costs set forth at Exhibit E; and (iv) any other costs not related to the Parkin g , Facilit Y
including the costs associated with equipping or building out the Retail Stores. Upon the
completion of the Parking Facility, the Developer shall provide a certificate from the Project
Architect under which the Project Architect (i) certifies as to the Construction Costs as described
above; (ii) provides, to the extent a cost qualifies as a Construction Cost, a verified schedule of
values regarding such cost or costs itemizing the amounts paid the contractor or contractors and
allocating them proportionally among the various aspects of the Project; and (iii) all other
supporting documentation used in its determination of the Construction Costs (the "Certificate of
Construction Costs ") in a form set forth at Exhibit C. The Commission shall review and
consider the Certificate of Construction Costs and its supporting evidence and if satisfactory
shall issue its Parking Facility Certificate of Completion determining the Construction Costs and
the Parking Facilities completing in accordance with the Purchase Contract.
5.6 Commission Obligation to Lease Commission Facility to Developer. If the
Developer exercises its Commission Purchase Option under this Section, the Commission's
purchase of the Commission Facility shall be subject to a lease agreement between the
Commission and the Developer (the "Developer Lease "). The terms of the Developer Lease
shall provide that the Commission lease the Commission Facility to the Developer for an annual
lease rental that shall not exceed One and 00 /100 ($1.00) per year for a term of approximately
twenty (20) years. The Developer Lease shall contain an option for the Developer to purchase
the Commission Facility upon the expiration of the Developer Lease at a purchase price of One
Thousand and 00 /100 ($1,000.00). The Developer Lease shall also include the other lease or
operational requirements set forth in this Section 5 and may include any provision consistent
with this Agreement.
5.7 Developer Obligations under the Lease. If the Developer exercises its
Commission Purchase Option under this Section, the Developer shall lease the entire
Commission Facility from the Commission under the terms of the Developer Lease. The
Developer Lease shall provide that the Developer be responsible for operating and maintaining
the Commission Facility, including providing for the long -term maintenance of the Parking
Facility, at all times in a high grade and reputable manner so as to help establish and maintain a
high reputation for the Parking Facility and the downtown more generally. Under the terms of
the Developer Lease, the Developer shall further be responsible for obtaining commercial
general liability insurance naming the Commission as additional insured and for obtaining
casualty and fire insurance for the Commission Facility, which casualty or fire insurance
proceeds associated with the Commission Facility shall either be used to rebuild the Commission
Facility or shall be delivered to the Commission to the extent such proceeds not exceed the
Commission Purchase Price. The Developer Lease shall further provide that the Developer be
responsible for providing for the management of the Commission Facility and for paying all
utilities for the Commission Facility and taxes and assessments levied against the Commission
Facility. The Developer shall indemnify the Commission for any loss in connection with or
arising from any use or condition of the Project and the Site or occasioned wholly or in part by
any act or omission occurring on or about the Project and the Site, except for any loss, injury or
damaged caused solely by the willful misconduct of the Commission. While the Developer may
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sublease portions of the Commission Facility in accordance with the p rovisions of this
Agreement and may contract to fulfill the Developer's obligations under the Developer Lease,
the Developer may not convey or transfer its obligations under the Lease to any other entity
without the express written consent of the Commission. The terms of the Developer Lease, any
sublease, and any operating and maintenance agreement entered into with respect to the
Commission Facility shall comply with any financing obligations associated with the
Commission's source of funding for the payment of the Purchase Price.
5.8 Use of Commission Facility. Under the terms of the Developer Lease, the
Developer may use any Project Spaces that are a part of the Commission Facility for any lawful
purpose. The Additional Spaces shall be regularly available (i) for lawful uses unrelated to the
Condo Development or the Retail Shops, such as monthly parking for employees of nearby
businesses, or reserved parking for individuals or for owners or tenants of nearby businesses or
organizations, or (ii) for hourly, daily or event parking for any lawful purpose. To the extent that
after the Project's completion, the Additional Spaces are advertised as monthly parking spaces or
as spaces available for sublease the Developer need not discriminate based on whether the
potential parker is affiliated with the Project provided that all of the Project Spaces have been
allocated among the potential uses of the Project as contemplated in the Final Site Plans
approved by the Commission in accordance with the Purchase Contract. During the term of the
Developer Lease, the Developer shall only enter into a sublease of a space in the Commission
Facility to a private individual or individuals, a for - profit business, and any other entity approved
• by the Commission in writing. A subleasee's rights under the any sublease shall not exceed the
Developer's rights under the Developer Lease. Under the terms of any sublease, the subleasee
shall be responsible for abiding by any use restrictions set forth in the Developer Lease and for
the obligations set forth in the Developer Lease with the understanding that the existence of the
sublease shall in no way convey or release the Developer from its obligations under the
Developer Lease. The Developer shall have full right to all revenues received by virtue of its use
and leasehold interest under the Developer Lease. Notwithstanding the terms set forth in this
paragraph, the Developer Lease shall provide that the Developer may not operate the
Commission Facility or receive payments for the use thereof in a manner inconsistent with the
financing obligations associated with the Commission's source of funding for the payment of the
Commission Purchase Price.
5.9 Use of Parking Facility. If the Developer exercises its Commission Purchase
Option under this Section, the Developer Lease shall provide that the Developer must offer any
Project Spaces in the Parking Facility that in practice are regularly unused for partial public
parking (such as hourly, daily or event parking or as conditional monthly parking), to the extent
practicable, and shall receive all proceeds in relation thereto. The foregoing sentence shall not
apply to spaces specifically marketed and subleased as spaces reserved for a particular owner of
a condo or an interest in the Retail Shops, whether an individual or business.
5.10 Expansion of Parking Facility. The Developer has expressed a desire to expand
the Parking Facility whether by adding an additional floor to the Parking Facility or by
• expanding the Site (and thus the Parking Facility) to the north. If the Developer expands the
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Parking Facility so as to add a significant amount of parking spaces to the Parking Facility
(which is currently estimated to contain 359 parking spaces), the amount of Additional Spaces
used to calculate the Commission Purchase Price under Section 5.4 shall be increased by at least
twenty -five (25) spaces for a total of at least one hundred fifty (150) Additional Spaces.
SECTION 6.0 [RESERVED].
SECTION 7.0 AMENDMENTS.
7.1 Amendment. This Agreement may be amended from time to time, in whole or in
part, by mutual written consent of the Parties or their successors in interest, in accordance with
this Agreement.
SECTION 8.0 COOPERATION- IMPLEMENTATION.
8.1 Upon submission by Developer of all appropriate applications and processing fees
for any required approval referenced in this Agreement, Commission shall promptly and
diligently commence and complete all steps necessary to comply with its obligation to support or
• endorse said approval.
8.2 Commission's obligations under Section 8.1 of this Agreement are conditioned
upon Developer's submission, in a timely manner, of all documents, applications, plans, and
other information necessary for the Commission to meet the obligations contained herein. It is
the express intent of Developer and Commission to cooperate and work diligently and in good
faith to obtain the approvals necessary to accomplish the Project.
SECTION 9.0 COOPERATION IN THE EVENT OF LEGAL CHALLENGE.
9.1 Cooperation. In the event of any administrative, legal or equitable action or
other proceeding instituted by any person not a party to this Agreement challenging the validity
of any provision of this Agreement, the Parties shall cooperate in defending such action or
proceeding to settlement or final judgment including all appeals. Each Party shall select its own
legal counsel and retain such counsel at its own expense, and in no event shall Commission be
required to bear the fees and, costs of Developer's attorneys nor shall Developer be required to
bear the fees and costs of Commission's attorneys.
The Parties agree that this Section 9.1 shall constitute a separate agreement entered into
concurrently with this Agreement, and that if any other provision of this Agreement, or the
Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent
jurisdiction, the Parties agree to be bound by the terms of this section, which shall survive such
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invalidation, nullification, or setting aside.
SECTION 10.0 DEFAULT; TERMINATION; ANNUAL REVIEW.
10.1 Default. Any failure by either Party to perform any term or provision of this
Agreement, which failure continues uncured for a period of Thirty (30) Days following written
notice of such failure from the other Party, unless such period is extended by written mutual
consent, shall constitute a default under this Agreement. Any notice given pursuant to the
preceding sentence shall specify the nature of the alleged failure and, where appropriate, the
manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is
such that it cannot reasonably be cured within such 30 -Day period, then the commencement of
the cure within such time period, and the diligent prosecution to completion of the cure
thereafter, shall be deemed to be a cure within such 30 -Day period. Upon the occurrence of a
default under this Agreement, the non - defaulting Party may institute legal proceedings to enforce
the terms of this Agreement or, in the event of a material default, terminate this Agreement. If
the default is cured, then no default shall exist and the noticing Party shall take no further action.
10.2 Termination. If Commission elects to consider terminating this Agreement due
to a material default of Developer, then Commission shall give written notice to Developer by
certified mail, return receipt requested, of Commission's intent to terminate this Agreement and
• this Agreement shall thereby be terminated Thirty (30) Days thereafter.
Unless otherwise agreed by the parties in writing, this Agreement shall terminate
automatically without fault or liability to either party in the event that Developer does not
commence the construction of the Project on or before April 30, 2007.
10.3 Semi - Annual Review. On or before February 1 and August 1 of each year, the
Developer shall submit to the Community & Economic Development Department of the City of
South Bend a report demonstrating Developer's good - faith compliance with the terms of this
Agreement.
10.4 Enforced Delay in Performance for Causes Beyond Control of Party;
Extension of Time of Performance. Notwithstanding anything to the contrary contained in this
Agreement, neither Party shall be deemed to be in default where delays in performance or
failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other
labor disturbances, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God,
restrictions imposed or mandated by other governmental entities enactment of conflicting state or
federal laws or regulations, new or supplemental environments regulations, or similar basis for
excused performance which is not within the reasonable control of the Party to be excused. Upon
the request of either Party, an extension of time for such cause will be granted in writing for the
period of the enforced delay, or longer as may be mutually agreed upon.
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• SECTION 11.0 NO AGENCY JOINT VENTURE OR PARTNERSHIP• CONFLICT
OF INTEREST.
11.1 No Agency, Joint Venture or Partnership. It is specifically understood and
agreed to by and between the Parties that:
(1) The Project, as described in this Agreement, is a private development;
(2) Commission has no interest or responsibilities for, or due to, third parties
concerning any improvements until such time, and only until such time, that Commission
accepts the same pursuant to the provisions of this Agreement;
(3) Commission and Developer hereby renounce the existence of any form of agency
relationship, joint venture or partnership between Commission and Developer and agree
that nothing contained herein or in any document executed in connection herewith shall
be construed as creating any such relationship between Commission and Developer.
11.2 Conflict of Interest; Commission Representatives Not Individually Liable. No
member, official, or employee of the Commission shall have any personal interest, direct or
indirect, in the Agreement, nor shall any such member, official, or employee participate in any
decision relating to the Agreement which affects his personal interests or the interests of any
corporation, partnership, or association in which he /she is, directly or indirectly, interested. No
member, official, or employee of the Commission shall be personally liable to the Developer, or
any successor in interest, in the event of any default or breach by the Commission or for any
amount which may become due to the Developer or successor or assign or on any obligations
under the terms of the Agreement. No partner, employee or agent of Developer or successors of
.them shall be personally liable to Commission under this Agreement.
SECTION 12.0 MISCELLANEOUS.
12.1 Severability. If any term or provision of this Agreement, or the application of
any term or provision of this Agreement to a particular situation, is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this
Agreement, or the application of this Agreement to other situations, shall continue in full force
and effect unless amended or modified by mutual consent of the parties. Notwithstanding the
foregoing, if any material provision of this Agreement, or the application of such provision to a
particular situation, is held to be invalid, void or unenforceable, Commission may, in
Commission's sole and absolute discretion, terminate this Agreement by providing written notice
of such termination to Developer.
12.2 Other Necessary Acts. Each Party shall execute and deliver to the other all such
other further instruments and documents as may be reasonably necessary to accomplish the
feProject contemplated by this Agreement and to provide and secure to the other Party the full and
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0 complete enjoyment of its rights and privileges hereunder.
12.3 Waiver of Jury Trial. The parties acknowledge that disputes arising under this
Agreement are likely to be complex and they desire to streamline and minimize the cost of
resolving such disputes. In any legal proceeding, each party irrevocably waives the right to trial
by jury in any action, counterclaim, dispute or proceeding based upon, or related to the subject
matter of this Agreement. This waiver applies to all claims against all parties to such actions and
proceedings. This waiver is knowingly, intentionally and voluntarily made by both parties.
12.4 Attorneys' Fees. In the event of any litigation, mediation or arbitration between
the Parties regarding an alleged breach of this Agreement, neither Party shall be entitled to ' any
award of attorneys' fees.
12.5 Recordation. This Agreement or a Memorandum of Agreement may be recorded
in the office of the St. Joseph County Recorder subsequent to its execution.
12.6 Equal Employment Opportunity. The Developer, for itself and its successors
and assigns, agrees that during the construction of the Project:
(a) The Developer will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, or national origin.
• The Developer agrees to post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provisions of this
nondiscrimination clause.
(b) The Developer will state, in all solicitations or advertisements for
employees placed by or on behalf of the Developer, that all qualified applicants
will receive consideration for employment without regard to race, color, religion,
sex, or national origin.
12.7 Recitals. The Recitals set forth above are a part of this Agreement for all
purposes.
12.8 Titles of Articles and Sections. Any titles of the several parts,. sections, and
paragraphs of this Agreement are inserted for convenience or reference only and shall be
disregarded in construing or interpreting any of its provisions.
12.9 Counterparts. This Agreement may be executed in counterparts, all of which
shall be deemed originals.
12.10 Notices and Demands. A notice, demand, or other communication under the
Contract by either party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered personally,
and
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(a) in the case of the Developer, is addressed to or delivered
personally to the Developer as follows:
Mr. Gary B. Spillers
Gameday Centers Southeastern, LLC
2555 Cumberland Parkway, Suite 200
Atlanta, Georgia 30339
and
b) in the case of the Commission is addressed to or delivered personally to:
or at sucn orner aaaress with respect to either such party as that party may from time to time
designate in writing and forward to the other as provided in this Section.
12.11 Governing Law. This Agreement shall be interpreted and enforced according to
the laws of the State of Indiana.
12.12 Corporate Authority. The undersigned persons executing and delivering this
Agreement on behalf of the Developer represent and certify that they are the duly authorized
partners of Developer and have been fully empowered to execute and deliver this Agreement and
that all necessary partnership action has been taken and done by Developer.
12.13 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon any person, firm, or corporation other than the
parties hereto and their respective successors or assigns, any remedy or claim under or by reason
of this Agreement or any term, covenant, or condition hereof, as third -party beneficiaries or
otherwise, and all of the terms, covenants, and conditions hereof shall be for the sole and
exclusive benefit of the parties herein.
12.14 Assignment. Developer shall not assign its rights under this Agreement without
the prior written consent of the Commission. Notwithstanding the foregoing, the Developer
may, without written consent of the Commission, assign this Agreement and its rights hereunder
to an entity that: (a) is affiliated with and controlled by the Developer, (b) delivers to the
Commission a written agreement in which it assumes the obligations of the Developer under this
Agreement and in which the Developer guarantees the entity's performance under this
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With a copy to:
South Bend Redevelopment Commission
City Attorney
1200 County -City Building
City of South Bend, Department of Law
227 West Jefferson Boulevard
1400 County -City Building
South Bend, Indiana 46601
227 West Jefferson Boulevard
South Bend, Indiana 46601
or at sucn orner aaaress with respect to either such party as that party may from time to time
designate in writing and forward to the other as provided in this Section.
12.11 Governing Law. This Agreement shall be interpreted and enforced according to
the laws of the State of Indiana.
12.12 Corporate Authority. The undersigned persons executing and delivering this
Agreement on behalf of the Developer represent and certify that they are the duly authorized
partners of Developer and have been fully empowered to execute and deliver this Agreement and
that all necessary partnership action has been taken and done by Developer.
12.13 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon any person, firm, or corporation other than the
parties hereto and their respective successors or assigns, any remedy or claim under or by reason
of this Agreement or any term, covenant, or condition hereof, as third -party beneficiaries or
otherwise, and all of the terms, covenants, and conditions hereof shall be for the sole and
exclusive benefit of the parties herein.
12.14 Assignment. Developer shall not assign its rights under this Agreement without
the prior written consent of the Commission. Notwithstanding the foregoing, the Developer
may, without written consent of the Commission, assign this Agreement and its rights hereunder
to an entity that: (a) is affiliated with and controlled by the Developer, (b) delivers to the
Commission a written agreement in which it assumes the obligations of the Developer under this
Agreement and in which the Developer guarantees the entity's performance under this
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•
t
Agreement and, if the Developer exercises the Commission Purchase Option, the Developer
p P � p
Lease, and (c) provides the Commission evidence demonstrating its ability to complete the
Project and abide by the terms of this Agreement and the Developer Lease, should the
Commission Purchase Option be elected.
12.15 Further Assurances. The parties agree that they will each take any action and
execute and deliver any document reasonably required to carry out the intents and purposes of
this Agreement. Without limitation, this shall include the furnishing of any Exhibit called for to
be attached hereto or included herewith, and the failure to attach any such Exhibit to this
Agreement at the date of execution shall not void this Agreement so long as all required Exhibits
are supplied on or before June 30, 2006, with the exception of the Certificate of Construction
Costs, which may be added and recorded as an Exhibit if finalized by December 31, 2007.
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0 IN WITNESS WHEREOF, the Parties hereby execute this Agreement on the date first
written above.
ATTEST:
Gregory S. Downes, Secretary
South Bend Redevelopment Commission
0 STATE OF INDIANA
)SS:
ST. JOSEPH COUNTY )
1]
COMMISSION:
CITY OF SOUTH BEND, BY ITS
DEPARTMENT OF REDEVELOPMENT
Marcia I. Jones, President
South Bend Redevelopment Commission
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared Marcia I. Jones and Gregory S. Downes, known to me to be President and Secretary,
respectively, of the South Bend Redevelopment Commission and acknowledged the execution of
the foregoing Agreement.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal on April 21, 2006.
Notary Public
My Commission Expires: Residing in St. Joseph County, Indiana
(Signature Page of Development Agreement)
•
DEVELOPER:
GAMEDAY CENTERS SOUTHEASTERN, LLC
Gary B. Spillers, President & CEO
STATE OF INDIANA )
)SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for said County and State; personally
appeared Gary B. Spillers, known to be the President & CEO of Gameday Centers Southeastern,
LLC, and acknowledged the execution of the foregoing Agreement.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal on April _, 2006.
, Notary Public
My Commission Expires: Residing in St. Joseph County, Indiana
This instrument was prepared by: Shawn E. Peterson, Assistant City Attorney, City of South Bend. 1400 County -City Building, South Bend, N
46601
(Signature Page of Development Agreement)
EXHIBIT A
Leizal Description for the Site
A parcel of land being a part of the Lots 38, 39 and 40 in the Original Plat of
South Bend as shown on the recorded Original Plat of the Town, now City of
South Bend recorded March 28, 1831 in Plat Book "A ", page 13 in the Office of
the Recorder of St. Joseph County, Indiana, and being more particularly described
as follows:
Beginning at the Southeast corner of said Lot 40; thence South 89°
55' 00" West along the South line of said Lot 40, a distance of
129.42 feet to the East Right -Of -Way Line of DeRue Court (A
Public Service Drive); thence North 0° 00' 00" East Along said
East Right -Of -Way Line, a distance of 198.09 Feet to the South
line of Lot AA in Hall of Fame & Chocolate Cafe Minor
Subdivision as shown on Instrument Number 0365811; thence
North 89° 57' 28" East along said South line, a distance of 128.57
feet to the Northeast corner of said Lot 38; thence South 0° 14' 39"
East along the East line of said Lots 38, 39 and 40, a distance of
i 198.00 feet to the place of beginning.
•
•
•
Iwo
Form of Contract for Sale of Land for Private Development
•
CONTRACT FOR SALE OF LAND FOR PRIVATE DEVELOPMENT
THIS CONTRACT FOR SALE OF LAND FOR PRIVATE DEVELOPMENT (this or the
"Contract "), made on April 21, 2006, between GAN EDAY CENTERS SOUTHEASTERN, LLC, a
limited liability company organized under the laws of the State of Georgia and having its principal
place of business at 2555 Cumberland Parkway, Suite 200, Atlanta, Georgia 30339 (the
"Developer ") and the SOUTH BEND REDEVELOPMENT COMMISSION, the governing body of
the City of South Bend, Indiana, Department of Redevelopment, established and operating under
Indiana Code § 36- 7 -14 -1 et seq., as amended (the "Act "), having its office at 1200 County -City
Building, South Bend, Indiana (the "Commission ").
RECITTALS:
WHEREAS, the Commission has investigated areas within the corporate boundaries of the
City of South Bend, Indiana (the "City ") and has prepared and approved the South Bend Central
District Development Plan ( "Plan ") to develop the area known as the South Bend Central District
Development Area, a copy of which Plan and amendments thereto have been recorded in the St.
Joseph County Recorder's Office; and
WHEREAS, the Commission and the Developer have entered into a Development
Agreement dated April 21, 2006 (the "DevelopmentAgreement "), pursuant to which the Developer
has committed to construct, develop and equip a structure consisting of (i) a parking facility
containing approximately three hundred fifty -nine (359) parking spaces; (ii) a condo and hotel
development containing approximately one hundred fifty (150) condos and providing approximately
one hundred (100) hotel spaces (assuming the condo owners make them available for such purpose);
and (iii) ground floor retail shops and/or restaurants totaling approximately 12,000 square feet
(collectively, the "Project "), all on the Site (as defined below); and
WHEREAS, pursuant to the Development Agreement, the Commission has offered to
transfer, and.the Developer is willing to accept, the property commonly described as 121 S. St.
Joseph Street, South Bend, Indiana 46601 and more particularly described at Exhibit A of this
Contract (the "Property ") to provide for the development of the Project on the Property in accordance
with the Plan, the Site Plans (as defined herein), the Development Agreement, and this Contract; and
WHEREAS, the Commission believes that developing the Project on the Property in
accordance with the Development Agreement and this Contract is in the best interest of the health,
safety and welfare of the City and its residents and complies with the public purposes and provisions
isof the Act and applicable federal, state and local laws under which the development has been
undertaken and is being assisted; and
• NOW, THEREFORE, in consideration of the mutual promises and obligations in this
Contract, the parties agree as follows:
SECTION I. SALE OF PROPERTY.
Subj ect to all of the terms of this Contract and the Development Agreement, the Commission
agrees to sell and the Developer agrees to purchase the Property for the sum of One and 00 /100
Dollars ($1.00) (the "Purchase Price ").
SECTION II. CONVEYANCE OF PROPERTY.
A. Form of Deed. Subject to the terms of this Contract and the Development Agreement,
the Commission shall convey to the Developer title to the Property by quit claim deed in'the form set
forth at Exhibit B (the `Deed"). In addition to the other conditions, covenants and restrictions in this
Contract and the Development Agreement, such conveyance and title shall be subject to:
1. Building and use restrictions in the Plan (and its covenants) and this Contract;
2. Applicable building codes and zoning ordinances; and
• 3. Any and all other covenants, restrictions, easements and reservations of
record.
B. Time and Place of Closing on Sale of the Property. Subject to the terms and
conditions of this Contract and the Development Agreement, the Commission shall deliver the Deed
and possession of the Property to the Developer on August 31, 2006 or earlier if the parties mutually
agree in writing. Conveyance shall be made at the offices of City of South Bend Department of
Redevelopment or at such other location designated by the Commission. Fees for closing services
provided by the title company shall be borne by the Commission. The Developer shall accept the
conveyance and pay the Purchase Price to the Commission at that time and place.
Prior to closing and as a condition precedent thereto, Developer must provide to the
Commission evidence satisfactory to the Commission of a binding commitment by a financial
institution for financing of the Project.
C. Apportionment of Current Taxes. The Commission shall bear the portion of the
current taxes (if any) on the Property which are a lien on the date of delivery of the Deed to the
Developer.
D. Recordation of Deed. The Commission shall promptly record the Deed in the St.
Joseph County Recorder's Office and shall pay the costs for recording the Deed.
•
E. Title Insurance. The Commission shall furnish the Developer a title insurance policy
which insures the Developer's title in a sum equal to the Twenty Thousand and 00 /100 Dollars
($20,000.00) and subject only to those items provided for in the Contract.
F. Condition Precedent to Closing. Prior to, and as a condition precedent to closing, the
Commission shall provide to Developer an ALTA Land Survey of the Property.
SECTION III. FAITHFUL PERFORMANCE GUARANTEE
A. Amount. Within seven (7) days of executing this Contract, the Developer shall
deliver to the Commission a faithful performance deposit ( "Deposit ") in the form satisfactory to the
Commission in the amount of Twenty Thousand and 00 /100 Dollars ($20;000.00) as security for
performing its obligations under this Contract.
B. Retention by Commission. If before the issuance of a Certification of Completion as
provided in Section VI of this Contract, the Developer defaults in its obligations under this Contract
and fails to cure such defect as this Contract provides, then the Commission may exercise any and all
rights it may have pursuant to the Deposit without any reduction, offset, or recoupment, as liquidated
damages. Exercise of these rights shall be in addition to any other remedies and shall not waive any
other right under this Contract or other laws.
C. Return to Develo er. Upon pon issuing the Project Certificate of Completion upon
completion of redevelopment as required by this Contract, the Commission shall return the Deposit
to the Developer.
SECTION IV. NATURE OF IMPROVEMENTS; TIME FOR COMMENCEMENT
AND COMPLETION.
A. Nature of Improvements. The construction of Project on the Property shall be
substantially of the same size, scope and nature as specified in the Development Agreement, which
reflects plans and specifications set forth in the advertisement for bids on the air - rights to the
Property, in its bid to the Commission for disposition and development of the air - rights to the
Property, and in the documents submitted to the Commission subsequent to the awarding of the air -
rights to the Property pertaining to the development of the ground- rights to the Property. In awarding
the bid of the air - rights of the Property to the Developer and in executing the Development
Agreement, the Commission relied upon all representations, descriptions, discussions, drawings and
other representations by the Developer of the Project. Those matters are incorporated into this
Contract by reference together with the air - rights bid packet of the Developer as well as the narrative
description of the Project submitted with the air- rights bid, as amended, and the plans and
•
specifications submitted to the Commission in relation to the development of the Project and a copy
of all of which are attached to this Contract as Exhibit C (the "Site Plans ").
B. Time for Construction. Construction of the Project on the Property shall begin by
April 30, 2007. The Project shall qualify for the award of a certificate of occupancy from the
Building Commissioner of the City of South Bend, Indiana, by May 31, 2008.
SECTION V. TIME FOR CERTAIN OTHER ACTIONS.
A. Time for Submitting Plans for Design Development Review. The Developer shall
submit for approval by the Department of Redevelopment the Site Plan, in final form, detailing
building materials, construction, and landscaping which must be approved prior to the
commencement of construction. The approved final Site Plan (the "Final Site Plan ") shall be
recorded as an addendum to this Contract for Sale of Land in the form set forth at Exhibit D and
serve the Commission in its determination that Developer has completed the Parking Facility (as
defined in the Development Agreement) and Project and is entitled to the Parking Facility Certificate
of Completion or the Project Completion Certificate, respectively, as provided in Section VI. The
Director of Economic Development with the Department of Redevelopment may approve the Final
Site Plan provided that such Final Site Plan is substantially similar to the Site Plans approved by the
Commission.
B. Time for Submitting Financial Commitment. Prior to closing on the sale of the
Property, the Developer shall submit to the Commission evidence satisfactory to the Commission of
binding commitments for financing the Project.
SECTION VI. COMPLETION.
A. Certificate of Completion. Upon the Developer's completion of the Parking Facility
under this Contract and the Development Agreement and in substantial accordance with the Final
Site Plan, the Developer shall provide the Commission a Certificate of Construction Costs from the
Project Architect setting forth the Construction Costs (as defined in the Development Agreement) for
the Parking Facility and the documentation in support thereof. Upon receipt of the Certificate of
Construction Costs and a letter from the Developer attesting to the completion of the Project, the
Commission shall furnish the Developer with a Parking Facility Certificate of Completion (the
"Parking Facility Certificate of Completion ") upon determining that the Parking Facility has been
completed substantially in accordance with the Final Site Plan. Promptly after the Developer
completes the remainder of the Project and in substantial accordance with the Final Site Plan, the
Commission shall furnish the Developer with a Project Certificate of Completion (the "Project
Certificate of Completion "). These Certificates shall be issued in the form set forth at Exhibit E and
shall be a conclusive determination of satisfaction and termination of all covenants, requirements,
obligations and the like in the Contract and Deed, except the covenants of Section VII of the
40
Contract and Section III of the Deed, with respect to the respective portion of the Project. After the
issuance of the Project Certificate of Completion by the Commission, neither the Commission nor
any other party shall thereafter have or be entitled to exercise any rights, remedies, or controls
otherwise available with respect to the Property as a result of a default in or breach of any provisions
of the Contract or the Deed by the Developer or any successor in interest or assign, unless:
a. the Developer, any lessee, or any other successor in interest or assign defaults
or breaches the covenants of Section VII of the Contract or Section III of the
Deed, and
b. the right, remedy or control relates to such default or breach.
B. Form of Certification. Each Certification provided for in this Section shall be in such
form as to be recordable in the St. Joseph County Recorder's Office.
C. Refusal or Failure to Provide Certification. If the Commission refuses or fails to
provide Certification within thirty (30) days after the Developer's written request, the Commission
shall provide the Developer with a written statement indicating how the Developer failed to comply
with the provisions of this Contract and giving the measures necessary, in the Commission's opinion,
for the Developer to take in order to obtain such certification.
• SECTION VII. RESTRICTIONS UPON USE OF PROPERTY.
A. Agreements of Developer. The Developer agrees and the Deed shall state that the
Developer and its successors and assigns shall:
Devote the Property only to uses under the Plan; and
2. Not discriminate on the basis of race, color, creed, sex or national origin in
the sale, lease, rental, use or occupancy of the Property.
B. Enforceability of Covenants. The parties agree and the Deed shall expressly state that
the covenants in this Section shall be covenants running with the land and, except only as otherwise
specifically provided in the Contract, shall be binding for the benefit of and shall be enforceable by:
the Commission;
2. its successors and assigns;
3. the City of South Bend;
4. any successors in interest to the Property.
is
The covenants shall be enforceable against:
the Developer;
2. its successors and assigns;
3. every successor in interest to the Property; and
4. any party in possession or occupancy of the Property.
The parties further agree that the covenants in subsection VII(A)(1) shall remain in effect
from the date of the Deed until December 31, 2027. The covenants in subsection VII(A)(2) shall
remain in effect without limitation as to time but shall bind the Developer, each successor in interest
to the Property, and each parry in possession only for the time that the party or successor shall have
title to, an interest in, or possession of the Property.
The terms "uses specified in the Plan" and "land use" shall include the land and all buildings,
housing and other requirements or restrictions of the Plan pertaining to such land uses and
improvements to the Property.
C. Beneficiaries of Covenants. The parties also agree that the Commission and its
successors and assigns shall be deemed beneficiaries of the covenants in this Section.
The Deed shall state that the covenants shall run in favor of the Commission for the entire
period the covenants shall be in force and effect, regardless of whether the Commission has at any
time been, or is the owner of any land or interest in any land in favor of which such covenants relate.
If the above covenants are breached, the Commission shall have all of the rights and remedies
to which they or any other beneficiary of the covenant may be entitled.
SECTION VIII. PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER
A. Representations as to Development. The Developer represents and agrees that its
purchase of the Property and its other undertakings under this Contract are and will be used for
development of the Property and not for speculation in land holding. The Developer further
recognizes that:
1, in view of the importance of the development of the Property to the general
welfare of the City,
2. the substantial financial and other public assistance that has been made
is
available by law and by the federal and local governments for the purpose of
making such development possible, and
3. the fact that a transfer in ownership of the Developer is for practical purposes
a transfer or disposition of the Property then owned by the Developer;
the qualifications and identity of the Developer and its members, shareholders, and/or partners are of
particular concern to the City and the Commission. The Developer further recognizes that it is due to
such qualifications and identity that the Commission is entering into this Contract with the
Developer, and in so doing is further willing to accept and rely on the obligations of the Developer
for the faithful performance of all undertakings and covenants.
B. Prohibition Aszainst Transfer of Interest. The Developer agrees that any transactions
with respect to the equity of the Developer, including any increased capitalization, merger, transfer
or transfers of ownership of the outstanding stock of the Developer, or otherwise, which results in
the ownership by persons who are not presently members or shareholders of the Developer of 50% or
more of the outstanding equity of the Developer at any time prior to the date of issuance of a Project
Certificate of Completion, will constitute a violation of this Contract unless the Commission has
given prior written approval to such transfer or transfers, which approval will not be unreasonably
withheld.
C. Prohibition Against Transfer of Property or Assignment of Contract. The Developer
represents and agrees for itself, its successors and assigns, that except for security for obtaining
financing needed to enable the Developer to make the improvements under this Contract; and except
for any other purpose authorized by this Contract, the Developer has not made or will not make prior
to receiving the Project Certificate of Completion:
(a) any total or partial sale, assignment, conveyance, or lease; or
(b) any trust or power; or
(c) any transfer in any other mode or form, with respect to the Contract or the
Property or any part thereof, any interest therein; or
(d) any contract or agreement to do any of the above
without the express written approval of the Commission, which approval shall not be unreasonably
withheld.
D. Approval of Qualifications Prior to Transfer. The Commission may require as
conditions precedent to any approval of transfer or assignment any and all information regarding the
qualifications, financial responsibility, legal status, experience, background, and any and all other
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information it deems necessary or desirable in order to achieve and safeguard the purposes of the
Act, the Plan, the Development Agreement and this Contract.
E. No Transfer of Developer's Obligations. Absent specific written agreement by the
Commission to the contrary, no transfer or approval by the Commission thereof shall relieve the
Developer or any other party bound in any way by the Contract or otherwise with respect to the
construction of the improvements and completion of the Project from any of its obligations with
respect thereto.
F. Information as to Interest. The Developer agrees that during the period between
execution of this Contract and the Commission's issuance of the Project Certificate of Completion,
the Developer will promptly notify the Commission of any and all changes in the ownership of stock
or partnership interest, or any other act or transaction involving or resulting in any change in the
ownership of such interest in the Developer or the relative distribution thereof, of which it or any of
its officers have been notified or otherwise have knowledge or information, and which results in the
ownership of 50% or more of all outstanding equity of the Developer by persons who are not
presently shareholders or members of the Developer.
SECTION IX. MORTGAGE FINANCING; RIGHTS OF MORTGAGEES.
A. Limitation Upon Encumbrance of Property. Prior to the Commission's issuing a
Project Certificate of Completion, the Developer shall not:
1. engage in any transaction creating any encumbrance upon the Property,
whether by express agreement or operation of law; or
2. allow any encumbrance to be made on the Property, except for obtaining
funds needed to make the improvements constituting the Project.
Before securing any financing by mortgage or similar lien instrument with regard to any part of the
Property, the Developer shall notify the Commission. The Developer shall promptly notify the
Commission of any encumbrance that has been attached to the Property, whether by the Developer's
voluntary act or otherwise. For any mortgage financing made under this Contract, the Property may,
at the Developer's option, be divided into several parts if such subdivision:
in the Commission's opinion is not inconsistent with the purpose of the Plan,
the Project and this Contract; and
2. is approved in advance in writing by the Commission.
It is understood, and the Commission agrees and consents to, any division necessary to sale, lease or
use of the various aspects of the Project, including portions of the Parking Facility and each Retail
Store and each condo in the Condo Development; provided that the Developer not transfer
ownership of or allow a lien or mortgage to be imposed upon said divided parcels until the
Commission issues its Project Certificate of Completion, or with respect to the Parking Facility, the
Commission issues its Parking Facility Certificate of Completion and the Developer elects or waives
its Commission Purchase Option under the Development Agreement.
Any subdivision under this section must also be approved by any other local government agencies
whose action is required for such subdivision under local or state law.
B. Mortgagee Not Obligated to Construct. Notwithstanding any of the provisions of this
Contract any mortgage holder authorized by the Contract shall not be obligated by this Contract to
construct or complete the Project or to guarantee such construction or completion. No covenants or
provisions in the Deed shall be construed so to obligate such holder unless the holder assumes
ownership of the Project. Nothing in this Contract shall be construed to permit or authorize any such
holder to use the Property in any manner not provided for or permitted in the Plan or this Contract or
to construct any improvements other than those provided for or permitted in the Plan or this
Contract.
C. Copy of Notice of Default to Mortgagee. Whenever the Commission delivers a notice
or demand to the Developer with respect to any breach or default under this Contract the
Commission shall at the same time forward a copy of such notice or demand to each holder of any
mortgage authorized by the Contract at the last address of such holder as shown in the records of the
Commission.
D. Mortgagee's Option to Cure Defaults. After any breach or default referred to in
subsection C, above, each such holder shall have the right at its option:
to cure or remedy such breach or default to the extent that it relates to the part
of the Property covered by its mortgage; and
2. to add the cost of doing so to the mortgage debt and the lien of its mortgage.
Such holder shall not undertake or continue the construction beyond the extent necessary to conserve
or protect those improvements or construction already made without first having expressly assumed
the obligation to complete the construction on the property.
This assumption shall be made by written agreement pursuant to terms and conditions
satisfactory to the Commission. Any holder who properly completes the Project shall be entitled to
request a Certificate of Completion under the same terms and conditions provided for the Developer
under Section VI.
E. Commission's Option to Pay Mortgage Debt or Purchase Property. In any case, where
after default or breach by the Developer or any successor in interest under the Contract, any
mortgage holder of any part of the Property:
has, but does not exercise, the option to complete the improvements relating
to the part of the Property covered by its mortgage or for which it has
obtained title, and such failure continues for a period of sixty (60) days after
the holder has been notified or informed of the default or breach; or
2. begins construction but does not complete such construction within the
period as agreed upon by the Commission and such holder (which period
shall in any event be at least as long as the period prescribed for such
construction or completion in the Contract), and such default shall not have
been cured within sixty (60) days after written demand by the Commission so
to do,
the Commission shall have the option of paying to the holder the amount of the mortgage debt and
securing an assignment of the mortgage and the debt secured under it, and every mortgage instrument
made prior to the Commission's issuance of the Project Certificate of Completion of construction
with respect to the Property by the Developer or successor in interest shall so provide. In the event
ownership of any part of the Property has vested in such holder by way of foreclosure or action in
lieu of foreclosure, the Commission shall be entitled, at its option, to a conveyance of any part of the
Property (as the case may be) upon delivering to such holder an amount equal to the sum of
the mortgage debt at the time of foreclosure or action in lieu of
foreclosure, less all appropriate credits, including those resulting from
collection and application of rentals and other income received during
foreclosure proceedings;
ii. all expense with respect to the foreclosure;
the net expense, if any, exclusive of general overhead, incurred by
such holder in and as a direct result of the subsequent management of
the Property;
iv. the costs of any improvements made by such holder; and
V. an amount equivalent to the interest that would have accrued on the
aggregate of such amounts had all such amounts become part of the
mortgage debt and such debt had continued in existence.
F. Commission's Option to Cure Mortgage Default. Prior to the Commission's issuance
of the Project Certificate of Completion, if the Developer or any successor in interest defaults or
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breaches any of its obligations under any mortgage or other instrument creating an encumbrance or
lien upon any part of the Property, the Commission at its option may cure such default or breach. If
this occurs, the Developer or successor in interest shall reimburse the Commission for all costs
incurred by the Commission in curing such default or breach. Such reimbursement shall be in
addition to and without limitation upon any other rights or remedies to which the Commission is
entitled. Any such lien shall be subject always to the lien (including any lien contemplated, because
of advances yet to be made) of any then existing mortgages on the Property authorized by the
Contract, including any lien contemplated, because of advances yet to be made.
G. Mortgage and Holder. For the purposes of this Contract, the term "mortgage" shall
include a deed of trust or other instrument creating an encumbrance or lien upon any part of the
Property as security for a loan to construct and otherwise finance the Project; the term "holder" in
reference to a mortgage shall include any insurer or guarantor of any obligation or condition secured
by such mortgage or deed of trust, including, but not limited to, the Federal Housing Commissioner,
the Administrator of Veterans Affairs, and any successor in office of either such official.
SECTION X. REMEDIES.
A. In General. Except as otherwise provided in the Contract, upon any default in or
breach of the Contract by either party or any successor to such party, such party (or successor), upon
written notice from the other, shall proceed immediately to cure or remedy such default or breach
within thirty (30) days after receiving the notice. If action is not taken or not diligently pursued, or
the default or breach is not cured or remedied within a reasonable time, the aggrieved party may
institute proceedings necessary or desirable in its opinion to cure and remedy the default or breach,
including, but not limited to, proceedings to compel specific performance by the party in default or
breach of its obligations.
B. Termination by Developer Prior to Conveyance.
1. If the Commission does not tender conveyance or possession of the Property
in the manner and condition and by the date provided in the Contract, and any such failure is
not cured within forty -five (45) days after the date of written demand by the Developer, the
Contract shall be terminated at the option of the Developer, by written notice to the
Commission, and, except for return of the Deposit, neither the Commission nor the
Developer shall have any further rights against or liability to the other under the Contract:
2. If the Developer furnishes evidence reasonably satisfactory to the Commission
that, after and despite reasonably diligent effort for a period of one hundred twenty (120)
days after the date of this Contract, it has been unable to obtain mortgage financing for the
Project on a basis and on terms that would generally be considered satisfactory by builders or
contractors for construction of the nature and type of the Project, the Developer shall, after
having submitted such evidence and if so requested by the Commission, continue to make
diligent efforts to obtain such financing for a period of sixty (60) days after such request. If
the Developer fails to obtain financing after efforts listed above, then the Contract shall, at
the option of the Commission or the Developer, be terminated by written notice thereof to the
other parry, and neither the Commission nor the Developer shall have any further rights
against or liability to the other under the Contract excepting that the Commission will retain
the Deposit as provided under Section III herein.
C. Termination by Commission Prior to Conveyance. In the event that:
a. prior to conveyance of the Property to the Developer and in violation of the
Contract:
i. the Developer (or successor in interest) assigns or attempts to assign
the Contract or any rights therein or the Property, or
ii. there is any change in the ownership of the Developer or with respect
to the identity of the parties holding an ownership interest in the
Developer or the degree thereof, which the Commission reasonably
has refused to approve; or
b. the Developer does not submit reasonably satisfactory architectural and site
plans, or evidence of necessary equity capital and mortgage financing, in
satisfactory form and in the manner and by the dates respectively provided in
the Contract therefor; or
C. the Developer does es not pay the Purchase Price and take title to the Property
upon tender of conveyance by the Commission pursuant to the Contract,
then the Contract and any rights of the Developer in the Contract and the Property shall, at the option
of the Commission, without need of the consent of the Developer, be terminated: Provided, however,
that with respect to any default or failure referred to in subdivisions (a), (b), or (c) of this Section
X.C. a period of thirty (3 0) days shall be given to cure such failure or default after the date of written
demand by the Commission shall be given to cure such failure or default.
In the event of any default or failure referred to in the Development Agreement or in
subdivisions (a) (b) or (c) of this Section X.C., which remains uncured by the Developer after notice
and opportunity to cure have been provided by the Commission, the Deposit shall be retained by the
Commission as liquidated damages and as its property without any deduction, offset, or recoupment
whatsoever. Other than the foregoing, neither the Developer (or successor in interest) nor the
Commission shall have any further rights against or liability to the other under the Contract.
D. Revestina Title in Commission upon Happening of Event Subsequent to Conveyance
to Developer. If subsequent to conveying any part of the Property to the Developer and prior to the
issuance of a Project Certificate of Completion regarding the Project by the Commission:
1. the Developer (or successor in interest) shall default in or violate its
obligations with respect to the construction of the Project, including the
nature and the dates for the beginning and completion thereof, or shall
abandon or substantially suspend construction work, and any such default,
violation, abandonment, or suspension shall not be cured, ended, or remedied
within three (3) months (six (6) months, if the default is with respect to the
date of completion of the construction) after written demand by the
Commission so to do; or
2. the Developer (or successor in interest) shall fail to pay real estate taxes or
assessments on the Property when due, or shall place thereon any
encumbrance or lien unauthorized by the Contract, or shall cause any levy or
attachment to be made, or any materialmen's or mechanics' lien, or any other
unauthorized encumbrance or lien to attach, and such taxes or assessments
are not paid, or the encumbrance or lien removed or discharged or provision
reasonably satisfactory to the Commission made for such payment, removal,
or discharge, within ninety (90) days after written demand by the
Commission so to do; or
3. there is, in violation of the Contract, any transfer of any part of the Property,
or any change in the ownership or distribution of the stock or controlling
interest of the Developer, or with respect to the identity of the parties in
control of the Developer or the degree thereof as provided in Section VIII,
and such violation shall not be cured within sixty (60) days after written
demand by the Commission to the Developer,
then the Commission shall have the right to re -enter and take possession of the Property and to
terminate and revest in the Commission the estate conveyed by the Deed to the Developer. The
intent of this provision, together with other provisions of the Contract, is that the conveyance of the
Property to the Developer shall be made upon, and that the Deed shall contain, a condition
subsequent to the effect that the event of any default, failure, violation, or other action or inaction by
the Developer specified in this paragraph D the Developer's failure to remedy, end, or abrogate such
default, failure, violation, or other action or inaction, within the period and in the manner stated in
such subdivisions, the Commission at its option may declare a termination in favor of the
Commission of the title, and of all the rights and interest in and to the Property conveyed by the
Deed to the Developer, and that such title and all rights and interests of the Developer, and any
assigns or successors in interest to and in the Property, shall revert to the Commission; provided, that
such condition subsequent and any revesting of title as a result thereof in the Commission:
I . shall always be subject to and limited by, and shall not defeat, render invalid,
or limit in any way, (i) the lien of any mortgage authorized by the Contract,
and (ii) any rights or interests provided in the Contract for the protection of
the holders of such mortgages; and
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2. shall not apply to individual parts of the Properly, if any, (or in the case of
parts leased, the leasehold interest) on which the construction thereon has
been completed under the Contract and for which a Project Certificate of
Completion has been issued as provided in Section VI.
In addition to, and without in any way limiting the Commission's right to reentry as provided
for in the preceding paragraph, the Commission shall have the right to retain the Deposit, as provided
in Section III hereof, without any deduction, offset or recoupment whatsoever, in the event of a
default, violation or failure of the Developer as specified in the preceding paragraph.
E. Resale of Reacquired Property-, Disposition of Proceeds. Upon the revesting in the
Commission of title to the Property or any part thereof as provided in paragraph D above, the
Commission shall, pursuant to its responsibilities under State law, use its best efforts to resell the
Property or part thereof (subject to such mortgage liens and leasehold interests as 'set forth in
paragraph D above) as soon and in such manner as the Commission shall find feasible and consistent
with the objectives of State law and of the Plan to a qualified and responsible party or parties (as
determined by the Commission) who will assume the obligation of making or completing the
construction of the Project in its stead or of another project as shall be satisfactory to the
Commission and in accordance with the uses specified for such Property or part thereof in the Plan.
Upon such resale of the Property, the proceeds shall be applied:
1. First, to reimburse the Commission, on its own behalf or on behalf of the
City, for all costs and expenses incurred by the Commission, including but
not limited to:
a. salaries of personnel, in connection with the recapture, management,
and resale of the Property or part thereof, but less any income derived
by the Commission from the Property or part thereof in connection
with recapture such management or resale;
b. all taxes, assessments, and water and sewer charges with respect to
the Property or part thereof, or, in the event the Property is exempt
from taxation or assessment or such charges during the period of
ownership thereof by the Commission, an amount, if paid, equal to
such taxes, assessments, or charges, as determined by the appropriate
assessing officials, as would have been payable if the Property were
not so exempt;
C. any payments made or needed to be made to discharge any
encumbrances or liens existing on the Property or part thereof at the
time of revesting of title in the Commission or to discharge or prevent
from attaching or being made any subsequent encumbrances or liens
• due to obligations, defaults, or acts of the Developer, its successors or
transferees;
d. any expenditures made or obligations incurred in making or
completing the construction or any part thereof on the Property or part
thereof;
e. and any amounts otherwise owing the Commission by the Developer
and its successor or transferee; and
2. Second, to reimburse the Developer, its successor or transferee, up to the
amount equal to:
a. the sum of the Purchase Price paid by it for the Property (or allocable
to the part thereof) and the cash actually invested by the Developer in
construction on the Property or part thereof, less
b. any gains or income withdrawn or made by the Developer from the
Contract or the Property.
Any balance remaining after such reimbursements shall be retained by the Commission as its
property.
F. Other Rights and Remedies of Commission; No Waiver by Delay. The Commission
shall have the right to institute such actions or proceedings as it may deem desirable for effectuating
the purposes of this Section X. This would include the right to execute and record or file among the
public land records in the office in which the Deed is recorded a written declaration of the
termination of all the right, title, and interest of the Developer, and (except for such individual parts
upon which construction has been completed under the Contract and for which a Project Certificate
of Completion as provided in Section VI is to be delivered, and subject to such mortgage liens and
leasehold interests as provided in Section X, paragraph D hereof) its successors in interest and
assigns, in the Property, and the revesting of title in the Commission. Any delay by the Commission
in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under
this Section X shall not operate as a waiver of such rights or to deprive it of or limit such rights in
any way. This provision intends that the Commission should not be constrained, so as to avoid the
risk of being deprived of or limited in the exercise of the remedy provided in this paragraph because
of concepts of waiver, laches, or otherwise, to exercise such remedy at a time when it may still hope
otherwise to resolve the problems created by the default involved; nor shall any waiver in fact made
by the Commission with respect to any specific default by the Developer under this paragraph be
considered or treated as a waiver of the Commission's rights to any other defaults by the Developer
under this paragraph or with respect to the particular default except to the extent specifically waived
in writing.
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G. Enforced Delay in Performance for Causes Beyond Control of Party. For the purposes
of any of the provisions of the Contract, neither the Commission nor the Developer, as the case may
be, nor any successors in interest, shall be considered in breach of or in default in its obligations with
respect to the preparation of the Property for the Project, or the beginning and completion of
construction, or progress in respect thereto, in the event of enforced delay in the performance of such
obligations due to unforeseeable causes beyond its control and without its fault or negligence. These
include, but are not limited to, acts of God, acts of the public enemy, acts of the federal government,
acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes,
and unusually severe weather, or delays of subcontractors due to such causes. The purpose and
intent of this provision is that in the event of the occurrence of any such enforced delay, the time or
times for performance of the obligations of the Commission with respect to the preparation of the
Property for development or of the Developer with respect to construction of the Project as the case
may be, shall be extended for the period of the enforced delays as determined by the Commission but
at least an additional thirty (30) days: Provided, That the party seeking the benefit of the provisions
of this paragraph shall, within ten (10) days after the beginning of the enforced delay, have first
notified the other party thereof in writing and of the cause or causes thereof, and shall have requested
an extension for the period of the enforced delay.
H. Rights and Remedies Cumulative. The rights and remedies of the parties to the
Contract, whether provided by law or by the Contract, shall be cumulative. The exercise by either
party of any one or more of such remedies shall not preclude the exercise, at the same or different
times, of any other such remedies for the same default or breach or of any of its remedies for any
other default or breach by the other party. No waiver made by either such party with respect to the
performance, manner or time thereof, any obligation of the other party, or any condition to its own
obligation under the Contract shall be considered a waiver of any rights of the party making the
waiver with respect to that particular obligation of the other party or condition to its own obligation
beyond those expressly waived in writing and to the extent thereof, or a waiver of any respect in
regard to any other rights of the party making the waiver or any other obligations of the other party.
I. Party in Position of Surety With Respect to Obligations. The Developer, for itself, its
successors and assigns, and for all other persons who are or who shall become liable upon or subject
to any obligation or burden under the Contract, whether by express or implied assumption or
otherwise, hereby waives, to the fullest extent permitted by law, any and all claims or defenses
otherwise available on the ground of its or their being or having become a person in the position of a
surety, whether real, personal, or otherwise or whether by agreement or operation of law, including,
without limitation on the generality of the foregoing, any and all claims and defenses based upon
extension of time, indulgence, or modification of terms of contract.
SECTION XI. MISCELLANEOUS.
A. Conflict of Interest; Commission Representatives Not Individually Liable. No
member, official, or employee of the Commission shall have any personal interest, direct or indirect,
•
. in the Contract, nor shall any such member, official, or employee participate in any decision relating
to the Contract which affects his personal interests or the interests of any corporation, limited
liability company, partnership, or association in which he /she is, directly or indirectly, interested. No
member, official, or employee of the Commission shall be personally liable to the Developer, or any
successor in interest, in the event of any default or breach by the Commission or for any amount
which may become due to the Developer or successor or assign or on any obligations under the terms
of the Contract.
B. Recordation. This Contract shall be recorded in the office of the St. Joseph County
Recorder immediately prior to the closing on the Project unless one of the parties thereto records this
Contract on its own accord.
C. Equal Employment Opportunity. The Developer, for itself and its successors and
assigns, agrees that during the construction of the Project:
The Developer will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. The
Developer agrees to post in conspicuous places, available to employees and
applicants for employment, . notices setting forth the provisions of this
nondiscrimination clause.
2. The Developer will state, in all solicitations or advertisements for employees
placed by or on behalf of the Developer, that all qualified applicants will
receive consideration for employment without regard to race, color, religion,
sex, or national origin.
D. Provisions Not Merged With Deed. None of the provisions of the Contract are
intended to or shall be merged by reason of any Deed transferring title to the Property from the
Commission to the Developer or any successor in interest, and any such Deed shall not be deemed to
affect or impair the provisions and covenants of the Contract.
E. Titles of Articles and Sections. Any titles of the several parts, sections, and
paragraphs of the Contract are inserted for convenience or reference only and shall be disregarded in
construing or interpreting any of its provisions.
F. Counterparts. This Contract may be executed in counterparts, all of which shall be
deemed originals.
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G. Notices and Demands. A notice, demand, or other communication under the Contract
by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or
certified mail, postage prepaid, return receipt requested, or delivered personally, and
in the case of the Developer, is addressed to or delivered personally to the
Developer as follows:
Company
Gameday Centers Southeastern, LLC
2555 Cumberland Parkway, Suite 200
Atlanta, Georgia 30339
ATTN: Gary B. Spillers, President
ii. in the case of the Commission is addressed to or delivered personally to the
Commission as follows:
South Bend Redevelopment Commission
1200 County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
ATTN: President
With copy to
City Attorney
Department of Law
City of South Bend, Indiana
1400 County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
or at such other address with respect to either such party as that party may from time to time
designate in writing and forward to the other as provided in this Section.
H. Governing Law. This Contract shall be interpreted and enforced according to the laws
of the State of Indiana.
I. Corporate Authori ty. The undersigned person executing and delivering this Contract
on behalf of the Company represents and certifies that he is the duly authorized officer of the general
manager of the Company and has been fully empowered, by proper action by said general manager
and the Company to execute and deliver this Contract and that all necessary corporate action has
been taken and done by the Company and its general manager.
The undersigned persons executing and delivering this Contract on behalf of the Commission
represent and certify that they are the duly authorized officers of the Commission and have been fully
empowered, by proper action by the Commission to execute and deliver this Contract and that all
ISnecessary corporate action has been taken and done by Commission.
WEXHIBIT A
Legal Description of Property
A parcel of land being a part of the Lots 38, 39 and 40 in the Original Plat of South
Bend as shown on the recorded Original Plat of the Town, now City of South Bend
recorded March 28, 1831 in Plat Book "A ", page 13 in the Office of the Recorder of
St. Joseph County, Indiana, and being more particularly described as follows:
Beginning at the Southeast corner of said Lot 40; thence South 89°
55' 00" West along the South line of said Lot 40, a distance of 129.42
feet to the East Right -Of -Way Line of DeRue Court (A Public Service
Drive); thence North 0° 00' 00" East Along said East Right -Of -Way
Line, a distance of 198.09 Feet to the South line of Lot AA in Hall of
Fame & Chocolate Cafe Minor Subdivision as shown on Instrument
Number 0365811; thence North 89° 57' 28" East along said South
line, a distance of 128.57 feet to the Northeast corner of said Lot 38;
thence South 0° 14' 39" East along the East line of said Lots 38, 39
and 40, a distance of 198.00 feet to the place of beginning.
•
•
0 EXHIBIT B
Form of Deed
•
40
•
MAIL DEED TO: MAIL TAX BILL TO: AUDITOR'S RECORD
City of South Bend Department Gameday Centers Southeastern, LLC Transfer No. _
of Redevelopment 2555 Cumberland Parkway, Suite 200 Taxing Unit _
227 W. Jefferson, Suite 1200 Atlanta, Georgia 30339 Date
South Bend, IN 46601 Lake Forest, IL 60045 Tax Key No.
QUIT CLAIM DEED
(Private Redevelopment)
THIS INDENTURE WITNESSETH, that the City of South Bend, Department of
Redevelopment, in St. Joseph County, Indiana ( "Grantor "), conveys and quit claims to
Gameday Centers Southeastern, LLC ( "Grantee "), for and in consideration of One and
00 /100 Dollars ($1.00), the receipt of which is hereby acknowledged, the following
described real estate in the City of South Bend, St. Joseph County, Indiana ( "Real Estate "):
See attached Exhibit A
SECTION I. This Deed is subject to the covenants, conditions, restrictions, and
provisions of the Contract for Sale of Land for Private Redevelopment entered into
between the Grantor and the Grantee dated April 21, 2006, a copy of which was recorded
on , 2006, as Document No. , in the Office of the
Recorder in St. Joseph County, Indiana ( "Agreement ").
The Grantee may not convey this Real Estate, or any part thereof, without the
consent of the Grantor until the Project Certificate of Completion, as described in the
Agreement, releasing the Grantee from the obligations of the Agreement as to this Real
Estate, or such part thereof then to be conveyed, has been placed on record. This
provision, however, in no way prohibits conveyance of the Real Estate incidental to a
judicial foreclosure sale nor prevents the Grantee from mortgaging this Real Estate in order
to obtain funds for the purchase of Real Estate hereby conveyed and for erecting
improvements thereon in conformity with the Economic Development Plan for the South
Bend Central District Development Area ( "Plan") and applicable provisions of the Zoning
Ordinance of the City of South Bend, Indiana.
The terms and covenants of the Agreement pertaining to the redevelopment of the
Real Estate and to the improvements shall be deemed covenants running with the land.
. It is specifically agreed that the Grantee shall promptly begin and diligently
prosecute to completion the redevelopment of the Real Estate through the construction of
the improvements thereon, as provided in the Agreement, and as represented to the Grantor
in public documents of the Grantor, including but not limited to the bid proposal submitted
to the Grantor by Grantee ( "Project "). Such construction shall be begun no later than April
• 30, 2007, and qualify for a certificate of occupancy from the Building Commissioner of the
1
City of South Bend by May 31, 2008.
Promptly after completion of the Project, the Grantor will furnish the Grantee with
an appropriate instrument so certified. Such certification by the Grantor shall be (and it
shall be so provided in the certification itself) a conclusive determination of satisfaction
and termination of all covenants, requirements, obligations and the like in the Agreement,
and in this Deed, except the covenants of Section VII of the Agreement and Section III
herein for the limited time set forth therein. All certifications provided for herein shall be
in such form as will enable them to be recorded with the Office of the Recorder of St.
Joseph County.
SECTION II. In the event the Grantee herein, prior to the recording of the
Certificate of Completion hereinabove referred to, shall:
(a) default in or violate any obligations with respect to the construction of the
improvements provided for in this Deed and the Agreement, or abandon or
substantially suspend construction work, and any default, or violation,
abandonment, or suspension is not cured, ended, or remedied within three
(3) months (six (6) months if the default is with respect to the date for the
completion of the improvements) after written demand by the Grantor so to
do; or
(b) fail to pay real estate taxes or assessments on the Real Estate or any part
thereof when due, or shall place thereon any encumbrance or lien not
authorized by the Agreement with the Grantor, or shall suffer any levy or
attachment to be made, or any materialmen's or mechanic's liens or any
other unauthorized encumbrances or lien to attach, and such taxes or
assessments are not paid or the encumbrance or lien removed or discharged,
or provisions satisfactory to the Grantor made for such payments, removal
or discharge, within ninety (90) days after written demand by the Grantor so
to do; or
(c) in violation of the Agreement or of this Deed, transfer the Real Estate or
any part thereof, or if there is any change in the ownership or partnership
interests, or to the identity of the parties in control of the Grantee or either
of them or the degree thereof, and such violation is not cured within sixty
(60) days after written demand by the Grantor;
then the Grantor shall have the right to re -enter and take possession of the Real Estate and
to terminate and revest in the Grantor the estate conveyed by this Deed to the Grantee, its
assigns or successors in interest. Such reversion of title shall, however, be subject to the
lien of any outstanding mortgage authorized by the Agreement.
2
•
SECTION III. The Grantee agrees for itself and its successors and assigns to or of
the Real Estate any part thereof, hereinabove described, that the Grantee and such
successors and assigns shall
(a) devote the Real Estate to, and only to, and in accordance with the uses
specified in the Plan;
(b) not discriminate upon the basis of race, sex, color, religion, or national
origin in the sale, lease or rental or in the use or occupancy of the Property
or any improvements erected or to be erected thereon, or any part thereof.
It is intended and agreed that the above and foregoing agreements and covenants
shall be covenants running with the land; and that they shall, in any event, and without
regard to technical classification or designation, legal or otherwise, and except only as
otherwise specifically provided in this Deed, be binding, to the fullest extent permitted by
law and equity, for the benefit and in favor of, and enforceable by, the Grantor, its
successors and assigns, and the City, and any successor in interest to the Real Estate, or
any part thereof, and the owner of any other land or any interest in such land in the Airport
Economic Development Area which is subject to the land use requirements and restrictions
of the Plan, and the United States (in the case of covenant in clause (b)) against the
Grantee, its successors and assigns, and every successor in interest to the Real Estate, or
any part thereof. It is further intended and agreed that the agreement and covenant
provided in clause (a) shall remain in effect until December 31, 2027 (at which time such
agreement and covenant shall terminate) and the agreements and covenants provided in
clause (b) shall remain in effect without limitation as to time; provided, however, that such
agreements and covenants shall be binding on the Grantee itself, each successor in interest
to the Real Estate, and every part thereof, and each party in possession or occupancy,
respectively, only for the period as such successor or party shall have title to, or an interest
in, or possession or occupancy of, the Real Estate or part thereof. The terms "uses
specified in the Plan" and "land use" referring to provisions of the Plan, or similar
language, in this Deed shall include the land and all buildings, housing, and other
requirements or restrictions of the Plan pertaining to such land.
SECTION IV. In amplification, and not in restriction, of the provisions of this
Deed, it is intended and agreed that the Grantor and its successors and assigns shall be
deemed beneficiaries of the agreements and covenants provided herein, and the United
States shall be deemed a beneficiary of the covenants in clause (b) of Section III hereof,
both for and in their own right, and also for the purposes of protecting the interest of the
community and the other parties, public or private, in whose favor or for whose benefit
these agreements and covenants have been provided. Such agreements and covenants shall
run in favor of the Grantor and the United States, for the entire period during which such
agreements and covenants shall be in force and effect, without regard to whether the
Grantor or the United States has at any time been, remains, or is an owner of any land or
3
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interest therein to, or in favor of, which such agreements and covenants relate. The Grantor
shall have the right in the event of any breach of any such agreement or covenant, and the
United States shall have the right in the event of any breach of the covenant provided in
clause (b) of Section III hereof, to exercise all rights and remedies,. and to maintain any
actions or suits at law or in equity or other proper proceedings to enforce the curing of such
breach of agreement or covenant, to which it or any other beneficiaries of such agreement
or covenant may be entitled.
SECTION V. This Deed is also given subject to:
(a) Easements, Restrictions, and Agreements of record.
(b) Covenants, Conditions, and Restrictions contained in the Plan.
(c) Provisions of the zoning ordinances of the City of South Bend, Indiana,
insofar as they affect this real estate.
In the event any of the terms, conditions, obligations or restrictions herein conflict with
those contained in the Agreement, the terms, conditions, obligations and restrictions of the
Agreement, when read together as a whole, shall prevail.
SECTION IV. Grantor certifies under oath that no Indiana Gross Income Tax is due
or payable in respect to the transfer made by this deed.
(remainder of this page is intentionally left blank)
11
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11
IN WITNESS WHEREOF, the Grantor has caused this Deed to be duly executed in
its behalf by its duly authorized officers on .2006.
CITY OF SOUTH BEND DEPARTMENT
OF REDEVELOPMENT, by and through the
South Bend Redevelopment Commission
GRANTOR
Printed:
Its:
ATTEST:
By:
Printed:
Its:
STATE OF INDIANA )
SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public, in and for said County and State,
personally appeared City of South Bend, Department of Redevelopment, by
and , known to me to be the
and , respectively of the South Bend
Redevelopment Commission, and acknowledged the execution of the foregoing Deed.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the _ day of , 2006.
(SEAL)
My Commission Expires:
Notary Public
Residing in
(Signature Page of Deed)
County, Indiana
•
•
STATE OF
SS:
COUNTY )
ACCEPTED:
GAMEDAY CENTERS SOUTHEASTERN,
LLC
Gary B. Spillers, President & CEO
Before me, the undersigned, a Notary Public, in and for said County and State,
personally appeared Gary B. Spillers known to me to be the duly authorized President and
CEO of Gameday Centers Southeastern, LLC, and acknowledged the execution of the
foregoing Deed on behalf of said Company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the _ day of , 2006.
(SEAL)
Notary Public
Residing in County,
My Commission Expires:
This instrument was prepared by Shawn E. Peterson, Assistant City Attorney, City of South Bend, 1400 County-City Building, South
Bend, Indiana 46601.
(Acceptance Page of Deed)
E
EXHIBIT A
Legal Description of Property
A parcel of land being a part of the Lots 38, 39 and 40 in the Original Plat
of South Bend as shown on the recorded Original Plat of the Town, now
City of South Bend recorded March 28, 1831 in Plat Book "A ", page 13 in
the Office of the Recorder of St. Joseph County, Indiana, and being more
particularly described as follows:
Beginning at the Southeast corner of said Lot 40; thence
South 89° 55' 00" West along the South line of said Lot 40, a
distance of 129.42 feet to the East Right -Of -Way Line of
DeRue Court (A Public Service Drive); thence North 0° 00'
00" East Along said East Right -Of -Way Line, a distance of
198.09 Feet to the South line of Lot AA in Hall of Fame &
Chocolate Cafe Minor Subdivision as shown on Instrument
Number 0365811; thence North 89° 57' 28" East along said
South line, a distance of 128.57 feet to the Northeast corner
of said Lot 38; thence South 0° 14' 39" East along the East
line of said Lots 38, 39 and 40, a distance of 198.00 feet to
the place of beginning.
•
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EXHIBIT C
Site Plans
Proposal Documents and Forms
Application to Commission
Application To: South Bend Redevelopment Commission
1200 County -City Building
227 YFest Jefferson Boulevard
South Bend, Indiana 46601
(Note. "Applicant, ° as used in these Proposal Documents and Forms, shall include the actual legal
entity submitting and executing the Proposal Documents and Forms.)
Commissioners:
The undersigned Applicant certifies that it has familiarized itself with the present and
existing conditions of Property identified and legally described in Exhibit "A" attached hereto
and incorporated herein. Applicant further certifies that it has familiarized itself with the
Proposal Documents and Forms.
By this letter of Application to the Commission, Applicant hereby offers and proposes to
purchase (or lease, if applicable) the Property being offered by the Commission. Applicant
further certifies its intent to participate in the development of the Property in accordance with
Federal, State and Local ordinances and regulations governing same, and in accordance with the
Development Plan for the area as approved and amended from time -to -time by the Commission.
Applicant's Bid offering to purchase the Property (or lease, if applicable) is described as
follows:
Downtown South Bend
Project Area
Disposition Parcel :vumber
Offer is for:
.58
Total .acres
Form of Contract
One Hundred Sixty -Five Thousand Dollars
Purchase Price
N/A Dollars
.4nnual Lease Payment
■ Entire Parcel
0 Part of Parcel
❑ Purchase
E Lease Cash
Term
S 16,000.00
$ N/A
Applicant has submitted the following documentation in its Bid and understands that such
documentation will be considered by the Commission in the Commission's determination
• whether to award any bid. Applicant hereby certifies that:
1. Applicant has submitted a Narrative Description of the proposed development for
the Property described at Exhibit "A, " explaining the exact nature and character of the
improvements proposed for the Property and their use, together with maps and plans
sufficiently complete to indicate the general improvements to be- made on the Property.
(Maps and plans must be of sufficient scale to indicate clearly the location of the structures and other proposed
improvements and should provide information on building elevations and materials.)
2. Applicant has reviewed and completed the Proposal Documents and Forms
provided by the Department of Community & Economic Development/Division of
Economic Development ( "Department ") -which include: - (i) a Statement of the
Qualifications and Financial Responsibility; (ii) a Statement for Public Disclosure, and
(iii) a sworn Affidavit of Non - Collusion.
3. Applicant has submitted a Faithful Performance Guaranty in the amount of
Sixteen Thousand Five Hundred Dollars ($16,500.00), an amount equal to not less than 10% of the
that no offer to purchase or develop the Property will be considered by the Commission
unless accompanied by the Faithful Performance Guaranty.
Applicant understands and acknowledges that the Faithful Performance Guaranty
will be refunded to the successful Applicant at such time the Commission deems that the,
improvements to the property, as proposed, have been completed and the Commission
issues its Certificate of Completion. Applicant further understands that the Faithful
Performance Guaranty will be refunded to Applicants whose Bid is rejected as soon as
• practicable after notice of rejection.
Applicant understands and acknowledges that the submission of a completed Application
by Applicant shall constitute express authorization by Applicant to the Commission to obtain,
solicit, receive and/or utilize information that the Commission, in its sole discretion, deems
pertinent to Applicant's submission, including information from any persons or entities identified
by Applicant or from persons or entities having knowledge of the Applicant's experience,
abilities, past performance, integrity or financial status, or knowledge related to any other item
referenced in the Proposal Documents and Forms.
Applicant, by submission of a completed Application also acknowledges that any
information provided to or obtained by the Commission, whether related to financial matters or
otherwise, may be subject to disclosure under the State of Indiana's Access to Public Records
Act (IC 5- 14 -3 -1 et seq.) provided, however, that if the Applicant indicates that certain financial
documentation is submitted in confidence, by specifically and clearly marking and identifying
said documentation as CONFIDENTIAL, the Commission will endeavor to keep said
documentation confidential to the extent permitted by law.
Applicant further agrees to execute a contract for the purchase or lease of property for
development in the form prepared by the Department within thirty (30) days after notification of
acceptance of this offer and to develop and use the above identified Property in conformity with
the Federal, State and Local ordinances and regulations governing same; applicable
Development Plan; the Narrative Description and maps and plans as submitted by Applicant,
with amendments, if any, as approved by the Commission.
.Applicant understands and acknowledges that the Commission expressly reserves the
right to reject any and all Bids and to waive any informalities, irregularities or technical defects
if such are deemed, in the Commission's sole opinion, to be immaterial.
2
• Dated 1 1 -30 -05
Respectfully submitted,
Garnedav Centers Southeast LLC
rVame //of lndi ual orporation
B : `7
Sign lure
Gard Spillers
Name (type)
Managing Member
Title
ATTEST. (BY SECRETARY OF A CORPORATION) Address:
Address:
•
Signature
Name (type)
Title
0 Statement for Public Disclosure
�J
Applicant: Gameday Centers Southeastern, LLC
Address: 2555 Cumberland Parkway
Suite 200
Atlanta, GA 30339
1. Applicant proposes to enter into contract for the purchase or lease of property
from the South Bend Redevelopment Commission. The Property is more
specifically described in Exhibit "A " to the Proposal Documents and Forms.
2. Organizational Status of Applicant:
❑ An individual
❑ A corporation
❑ A not - for -profit corporation or charitable institution
■ A partnership known as: Gameday Centers Southeastern, LLC
❑ A business association or a joint venture known as:
❑ A Federal, State or Local government or instrument thereof
❑ Other (explain):
3. Organized and operating under the laws of Delaware
4. Date of Organization: 7/27/99
5. Names, addresses, and title of principal officers, investors, members or
shareholders of Applicant, as follows: (attach additional sheets if necessary)
a. PARTNERSHIP: each partner, whether a general or limited partner, and
the nature and percent of interest
Gary B. Spillers (50.000 %)
4150 Brookview Drive
Atlanta, GA 30339
Larry Carmack (6.250 %)
1302 Melanie Lane
Phenix City, AL 36867
Dr. Ed Murray (10.155 %)
1330 Mineral Springs Road
Pell City, AL 35125
is
Dr. Wendell Gaillard, Jr. (6.250%)
1637 Mayfair Court
Auburn, AL 36830
W. Bennett Spratlin (17.190 %0)
255 Will Mary Road
Piney Flats, TN 37686
Dr. James Temple (10.155 %)
2522 Herren Street
Dadeville, AL 36853
6. Names, addresses, and the nature and percent of interest of each person or entity
(not named in Item 5) who has a beneficial interest in any of the shareholders or
investors named in Item 5 which gives such person or entity more than a
computed 10% interest in the Applicant (for example, more than 20% of the stock
in a corporation which holds 50% of the stock of the Applicant; or more than 50%
of the stock in a corporation which holds 20% of the stock of the Applicant).
Name & Address Title and nature and percent of interest
N/A
7. Names of officers and directors, or trustees of any corporation or firm listed under
Item 5 or Item 6 above.
Name & Address Title and nature and percent of interest
N/A
8. Describe any undertakings, of a similar type, scope and size comparable to the
proposed development, which have been completed by Applicant or any of the
Principals of the Applicant, including a brief description of each project, status of
project and date of completion, if applicable, and may include references related
to same:
SEE ATTACHED EXHIBIT "B"
9. If Applicant, or any Principals of the Applicant, has ever been an employee, in a
supervisory capacity, for a construction contractor or builder on undertakings
comparable to the proposed development, the name of such employee, name and
address of employer, title, and brief description of work:
•
is
10. If Applicant or a parent corporation, a subsidiary, an affiliate, or a principal of the
Applicant is to participate in the development of the land as a construction
contractor or builder:
a. Name and address of such contractor or builder:
TO BE DETERMINED
b. Has such contractor or builder within the last 10 years ever failed to
qualify as a responsible bidder, refused to enter into a contract after an
award has been made, or failed to complete a construction or
development contract?
❑ Yes
❑ No
If yes, explain:
C. Total amount of construction or development work performed by such
contractor or builder during the last three years: $
General description of such work:
d. Construction contracts or developments now being performed by such
contractor or builder:
Identification of
Contract or Development Location Amount Date to be Completed
11. Does any member of the South Bend Redevelopment Commission or any officer
or employee of the City of South Bend Department of Redevelopment have any
direct or indirect personal interest in the Applicant or the development of the land
as proposed?
10
❑ Yes
■ No
If yes, explain:
1]
12. Does any member of the governing body of the City of South Bend or any public
official or employee of the City of South Bend have any direct or indirect
personal interest in the Applicant or the development of the land as proposed?
❑ Yes
a No
If yes, explain:
13. Is this organization or any of its owners or officers presently delinquent on
property taxes or any fee (including, but not limited to, permit fees, license fees
and user fees) owed to the State of Indiana, St. Joseph County, Indiana or the City
of South Bend.
❑ Yes
■ No
If yes, explain.
14. Brief statement regarding Applicant's intent to use local suppliers, contractors and
labor. In addition, Applicant shall submit information concerning use of local
suppliers, contractors and labor on previous jobs, not limited to projects in St.
Joseph County, Indiana.
It is the developer's intent to hire an area general contractor who will bid
most or all of the work on this development to local subcontractors and
suppliers in the South Bend area.
Certification
I (We), Gameday Centers Southeastern LLC
certify that this Statement for Public Disclosure is true and correct to the best of my (our)
knowledge and belief.
Gar B. S illers
e
/ Sig ature
Managing Member
Title
11 -30 -05
Date
Name
Signature
Title
Date
(!f the applicant is an individual, this statement should be signed by such individual, if a partnership, it should be
signed by one of the partners; if a corporation or other entity, it should be signed by one of its chief officers having
knowledge of the facts required by this statement.)
•
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is
Affidavit of Non - Collusion
State of Georgia_
SS."
County of Cobb )
The undersigned, being first fully sworn, deposes and says that:
He /she is:■ owner, ■ partner, ❑ officer, ❑ representative, ■ agent, of
Gameday Centers Southeastern LLC (Applicant);
-2 He /she is fully informed respecting the preparation and contents of the attached
offer and of all pertinent circumstances respecting such offer;
Such offer is genuine and not a collusive or sham offer;
4. Neither said Applicant nor any of its officers, partners, owner =s agents,
representatives, employees, or parties in interest, including this affiant, has in any
way colluded, conspired, connived, or agreed directly or indirectly, with any other
Applicant, firm or person to submit a collusive or sham offer in connection with
the Contract for which the attached offer has been submitted or to refrain from
making an offer in connection with such Contract, or has in any manner, directly
or indirectly, sought by agreement or collusion or communication or conference
with any other Applicant, firm or person to fix the price or prices in the attached
offer, or of any other Applicant, or to fix any overhead, profit, or cost element of
the offering price of any other Applicant, or to secure through any collusion,
conspiracy, connivance or unlawful agreement any advantage against the City of
South Bend and/or its Department of Redevelopment and /or the South Bend
Redevelopment Commission person interested in the proposed Contact; and
5. The price or prices quoted in the attached offer are fair and proper and are not
tainted by any collusion, conspiracy, connivance, or unlawful agreement on the
part of the Applicant or any of its agents, representatives, owners, employees or
parties, in interest, including this affiant.
Gary B. Spillers
Signature
Managin)z Member
Title
Before me, the undersigned, a Notary Public, _subscribed and swore to this
Affidavit oJ'Non- Collusion on this l �t l l day of
12
(Seal) 1 .. - ` v "Lt- i t N
`i ,Votary Public
'a
L
0 EI(iIIBIT "A"
It is the intent of Gameday Centers - Southeastern and its
financial partners to develop the described property into a multiuse
development consisting of parking decks supporting retail shops and a
luxury sports condominium hotel. The parking garage initially planned
will have six decks and park 340 cars. Some of these spaces will be
reserved for the condominium hotel with the remaining to be reserved
by the City of South Bend for public parking.
Gameday would like to propose that the city grant us the rights
to develop the parking deck as well as the condo hotel with the same
general contractor doing both jobs. In addition, Gameday would like
to propose that its fee for developing the parking deck be tied to
• owning parking spaces in the parking deck and possibly purchasing all
•
spaces in the deck.
It is the intent of Gameday Centers to enter into promotional
and license contracts with Notre Dame University and the College Hall
of Fame to assist in promoting this unique development to its patrons
and enthusiastic support groups. The luxury sports condominiums in
the condo hotel will be sold to season ticket holders of Notre Dame
sports team, local and national investors, plus parents of students
attending one of the many area universities and graduate schools.
13
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•
EXHIBIT "B"
GEORGIA GAMEDAY CENTER
Project Profile
Located at 250 W. Broad Street in Athens, Georgia_ Gameday Center is
within walking distance of UGA's athletic facilities, including Sanford
Stadium. Seventy percent of reservations agreements and deposits
were collected within four months of the announcement of the
development.
Batson -Cook Construction Company provided general contracting, pre-
construction, construction management and design -build services.
Urban Design Group provided architectural services.
The eight story building offers 133 one -, two- and three - bedroom
residential suites and penthouses, a club room, reception area, gated
covered parking and commercial space. The Grand Opening occurred
on October 2, 2005.
14
■ Total Project Revenue: $28,500,000
■ Number of Units: 133 units
■ Status: Sold Out
•
•
t
EXHIBIT "B"
TALLAHASSEE CENTER
PROJECT PROFILE
Tallahassee Center is an 11- story, 120,000 square foot building to be
located in Kleman Plaza, a central area of redevelopment in downtown
Tallahassee. Surrounding the building are the State of Florida "League
of Cities Building" and the "Challenger Learning Center." Also nearby is
the "Mary Brogan Museum of Art and Science."
Culpepper Construction Company is the general contractor. Barnett
Fronczak is providing architectural services.
Tallahassee Center offers 112 studios, one -, two- and three - bedroom
residential suites and penthouses, a club room, gated covered parking
and commercial space. The Grand Opening is slated to occur in May
2006.
15
■ Total Project Revenue:
■ Number of Units:
■ Status:
$26,000,000
114 units
80% Sold Out
6 Mos. To Completion
EXHIBIT "B"
40
•
BAMA GAMEOM CENTER
PROJECT PROFILE
Bama Gameday Center is located at 712 12th Avenue in Tuscaloosa,
AL, in the shadows of Bryant Denny Stadium. Bama Gameda_y Center
was our second luxury sports condominium development.
Sun Construction Company provided general contracting, pre -
construction, construction management and design -build services.
The three story building offers studios, one -, two- and three - bedroom
residential suites and penthouses, a club room, meeting room, and
reception area. The Grand Opening occurred on September 15, 2001.
16
• Total Project Revenue: $9,500,000
■ Number of Units: 48 units
■ Status: Sold Out
EXHIBIT "B"
AUBURN GAMEBAY CENTER
PROJECT PROFILE
Our first development, Auburn Gameday Center, proved to be the start
of a great idea. Located at 129 N Donohue Drive in Auburn, AL, it is
within walking distance of Jordan -Hare Stadium.
Gameday Centers and Allen Development provided general
contracting, pre - construction, construction management and design -
build services. David Tyler AIA provided architectural services.
The three story building offers one -, two- and three - bedroom
residential suites and penthouses, a club room, meeting room, and
is reception area. The Grand Opening occurred in November 1999.
•
17
■ Total Project Revenue: $7,000,000
• Number of Units: 32 units
• Status: Sold Out
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EXHIBIT D
CERTIFICATE OF APPROVAL OF FINAL SITE PLANS
The undersign hereby consent and approve of the final designs, plans and specifications
attached to this certificate in accordance with the provisions of the Contract for Sale of Land for
Private Development by and between the SOUTH BEND REDEVELOPMENT COMMISSION
(the "Commission ") and the GAMEDAY CENTERS SOUTHEASTERN, LLC (the
"Developer ") dated April 21, 2006 (the "Contract ").
This certificate shall be added as an exhibit to the Contract and used by the Commission
in determining whether the Developer has substantially completed its development in accordance
with the Contract.
IN WITNESS WHEREOF, the undersigned hereto execute this Certificate for and on
behalf of the Commission in accordance with the provisions of the Contract.
Date
Donald Inks, Director of Economic Development
City of South Bend Department of Redevelopment
0 EXHIBIT E
PARKING FACILITY CERTIFICATE OF COMPLETION
This Certificate of Completion is made this — day of , 2006, in accordance with the Contract for
Sale of Land for Private Development by and between the South Bend Redevelopment Commission (the "Commission ")
and Gameday Centers Southeastern, LLC (the "Developer ") dated April 21, 2006 (the "Purchase Contract'):
WITNESSETH
The Commission and the Developer are parties to the Purchase Contract and a Development Agreement dated
April 21, 2006 (the "Development Agreement') regarding the development of certain real estate located at 121 S. St.
Joseph Street in South Bend, St. Joseph County, Indiana (the "Site "). Pursuant to the terms of the Purchase Contract and
the Development Agreement, the Developer has constructed or caused to be constructed a structure on the Site consisting
of (i) a parking facility containing approximately three hundred fifty -nine (359) parking spaces (the "Parking Facility ");
(ii) a condo and hotel development containing approximately one hundred fifty (150) condos and providing
approximately one hundred (100) hotel spaces (assuming the condo owners make them available for such. purpose) (the
"Condo Development'); and (iii) ground floor retail shops and/or restaurants totaling approximately 12,000 square feet
(the "Retail Shops" and with the Parking Facility and the Condo Development, the "Project'). The Developer has
submitted evidence that the Parking Facility has been completed and information regarding the Constructions Costs (as
defined in the Development Agreement). Pursuant to Section VI of the Purchase Contract, the Commission hereby
determines as follows:
1. The Completion Date for Parking Facility was the _ day of , 200 .
2. The Developer's right to elect the Commission Purchase Option as defined in the Development
Agreement shall expire on the day of , 20—.
3. The Construction Costs attributable to each Additional Parking Space (as defined in the Development
Agreement and to each Project Space (as defined in the Development Agreement) shall be
$ and , respectively, for purposes of the provisions
of the Development Agreement.
IN WITNESS WHEREOF, the South Bend Redevelopment Commission has duly executed this Parking Facility
Certificate of Completion as of the day of 1200
SOUTH BEND REDEVELOPMENT COMMISSION
ATTEST By_
LIN
Printed:
Acknowledged and Accepted on
Dated
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Name:
Its:
GAMEDAY CENTERS SOUTHEASTERN, LLC
By: _
Name:
Title:
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PROJECT CERTIFICATE OF COMPLETION
This Certificate of Completion is made this _ day of , 2006, in accordance with the Contract for
Sale of Land for Private Development by and between the South Bend Redevelopment Commission (the "Commission ")
and Gameday Centers Southeastern, LLC (the "Developer ") dated April 21, 2006 (the "Purchase Contract'):
WITNESSETH
The Commission and the Developer are parties to the Purchase Contract and a Development Agreement dated
April 21, 2006 (the "Development Agreement' ') regarding the development of certain real estate located at 121 S. St.
Joseph Street in South Bend, St. Joseph County, Indiana (the "Site "). Pursuant to the terms of the Purchase Contract and
the Development Agreement, the Developer has constructed or caused to be constructed a structure on the Site consisting
of (i) a parking facility containing approximately three hundred fifty-nine (3 59) parking spaces (the "Parking Facility ");
(ii) a condo and hotel development containing approximately one hundred fifty (150) condos and providing
approximately one hundred (100) hotel spaces (assuming the condo owners make them available for such purpose) (the
"Condo Development'); and (iii) ground floor retail shops and/or restaurants totaling approximately 12,000 square feet
(the "Retail Shops" and with the Parking Facility and the Condo Development, the "Project'). The Developer has
submitted evidence that the Parking Facility has been completed and information regarding the Constructions Costs (as
defined in the Development Agreement). Pursuant to Section VI of the Purchase Contract, the Commission hereby
determines as follows:
1. The Completion Date for Project was the _ day of , 200.
2. This Certificate shall be recorded pursuant to the terms of the Purchase Contract.
IN WITNESS WHEREOF, the South Bend Redevelopment Commission has duly executed this Parking Facility
Certificate of Completion as of the day of , 200 .
ATTEST
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SOUTH BEND REDEVELOPMENT COMMISSION
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Name:
Printed: Its:
Acknowledged and Accepted on
Dated
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GAMEDAY CENTERS SOUTHEASTERN, LLC
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Title:
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EXHIBIT C
CERTIFICATE OF CONSTRUCTION COSTS
I, the undersigned, of
organization with its principal place of business located at
hereby certify as follows:
(the "Project Architect "), an
I am a duly qualified and registered architect under the laws of the State of
Indiana.
2. On , 2006, the Project Architect entered into an
agreement with Gameday Centers Southeastern, LLC (the "Developer ") to
provide certain architectural services in connection with the construction,
development and equipping of a structure consisting of (i) a parking facility
containing approximately three hundred fifty -nine (359) parking spaces (the
"Parking Facility "); (ii) a condo and hotel development containing approximately
one hundred fifty (150) condos and providing approximately one hundred (100)
hotel spaces (assuming the condo owners make them available for such purpose)
(the "Condo Development "); and (iii) ground floor retail shops and/or restaurants
totaling approximately 12,000 square feet (the "Retail Shops" and with the
Parking Facility and the Condo Development, the "Project "), all located at 121 S.
St. Joseph Street, South Bend, Indiana 46601.
3. This certificate is being provided pursuant to a certain Development Agreement
by and between the Developer and South Bend Redevelopment Commission (the
"Development Agreement ").
4. It is my professional opinion that the Parking Facility is substantially complete.
5. It is my professional opinion that the construction costs attributable to the
construction of the Parking Facility —based on the costs listed in the example
attached hereto but excluding (i) any portion of development overhead costs or
other related soft costs attributable to construction, operation or equipping of the
Parking Facility or the Project as a whole, (ii) any costs related to supplemental
site work; (iii) any costs associated with constructing, developing or equipping the
Condo Development; and (iv) any other costs not related to the Parking Facility,
including the costs associated with equipping or building out the Retail Stores —
totals . The Parking Facility contains total
parking spaces. Attached hereto is the documentation evidencing my opinion,
including a verified schedule of values regarding such cost or costs, if any,
itemizing the amounts paid the contractor or contractors and allocating them
proportionally among the various aspects of the Project.
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I affirm under the penalties for perjury that the foregoing representations are true and
correct to the best of his knowledge.
Dated , 200 .
is
Printed:
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(Signature Page of Certificate of Construction Costs)
• Estimate Totals and Summary of Parking Facility Construction Costs
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Estimate Totals and Summary of Supplemental Sitework Costs
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Estimate Totals and Summary of Condo Project Costs
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EXHIBIT F
Developer Deliverable
F -1. Draft Design Proposals and Architectural Renderings for Commission
Approval;
F -2. Updated Site Plan and Project Schedule
F -3. Developer's Marketing Plan
F -4. Signage Proposals