HomeMy WebLinkAbout5A5 Fourth Amendment To Development Agreement (Heading for Home LLC)1
FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT
This Fourth Amendment to Development Agreement (this “Fourth Amendment”), is
effective as of March 14, 2019 (the “Fourth Amendment Effective Date”), by and between the City
of South Bend, Department of Redevelopment, by and through its governing body, the South Bend
Redevelopment Commission (the “Commission”), and Heading for Home LLC, a Delaware
limited liability company with offices at 501 W. South St., South Bend, Indiana 46601 (the
“Developer”) (each, a “Party,” and collectively, the “Parties”).
RECITALS
A. The Parties entered into that certain Development Agreement dated August 25,
2016, as amended by the First Amendment, dated June 15, 2017, the Second Amendment, dated
April 26, 2018, and the Third Amendment, dated June 28, 2018 (collectively, the “Development
Agreement”), concerning the Developer’s development of the Developer Property as a mixed-use
project including, without limitation, residential, commercial, and retail/hospitality uses.
B. In accordance with and subject to the terms of the Development Agreement, the
Commission agreed to expend no more than Four Million Ninety-Three Thousand Dollars
($4,093,000.00) (the “Funding Amount”) to complete certain Local Public Improvements in
support of the Developer’s construction on the Developer’s Property.
C. Pursuant to Section 5.2(c) of the Development Agreement, bids were received for
the Local Public Improvements by the City of South Bend Board of Public Works (the “Board”),
as the Commission’s agent, and the winning bid exceeded the Funding Amount.
D. At its public meeting on June 26, 2018, the Board conditionally awarded the
contract for the Local Public Improvements (the “LPI Contract”) upon the Commission’s increase
of the Funding Amount by Forty-Five Thousand Dollars ($45,000.00) (the “Funding Amount
Increase”).
E. The Commission increased the Funding Amount to accommodate the LPI Contract;
however, the actual Funding Amount Increase should have been Ninety-Five Thousand Dollars
($95,000), which error the Parties desire to correct in accordance with the terms of the
Development Agreement and as set forth herein.
F. Additionally, the Parties desire to extend the Mandatory Project Completion Date
to accommodate continued work on the Project.
NOW, THEREFORE, in consideration of the mutual promises and obligations stated in the
Development Agreement and this Fourth Amendment, the adequacy of which is hereby
acknowledged, the Parties agree as follows:
1. In Section 1.3 of the Development Agreement, which defines the Commission’s
Funding Amount, the term “Four Million Ninety-Three Thousand Dollars ($4,093,000.00)” shall
be deleted and replaced with the term “Four Million One Hundred Forty-Three Thousand Dollars
(4,143,000.00).”
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2. Section 4.5 of the Development Agreement shall be deleted in its entirety and
replaced with the following:
The Developer hereby agrees to complete the Project and any other obligations the
Developer may have under this Agreement on or before June 30, 2019 (the
“Mandatory Project Completion Date”). Notwithstanding any provision of this
Agreement to the contrary, the Developer’s failure to complete the Project or any
other obligations the Developer may have under this Agreement by the Mandatory
Project Completion Date will constitute a default under this Agreement without any
requirement of notice of or an opportunity to cure such failure.
3. The Developer hereby expressly reaffirms its obligation under Section 5.2(d) of the
Development Agreement to pay all costs of completing the Local Public Improvements, including
the Funding Amount Increase, which amount shall be paid to the Commission within five (5)
business days of the Fourth Amendment Effective Date.
4. Unless expressly modified by this Fourth Amendment, the terms and provisions of
the Development Agreement remain in full force and effect.
5. Capitalized terms used in this Fourth Amendment will have the meanings set forth
in the Development Agreement unless otherwise stated herein.
6. The recitals set forth above are hereby incorporated into the operative provisions of
this Fourth Amendment.
7. This Fourth Amendment will be governed and construed in accordance with the
laws of the State of Indiana.
8. This Fourth Amendment may be executed in separate counterparts, each of which
when so executed shall be an original, but all of which together shall constitute one and the same
instrument. Any electronically transmitted version of a manually executed original shall be deemed
a manually executed original.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Parties hereby execute this Fourth Amendment To
Development Agreement to be effective as of the Fourth Amendment Effective Date stated above.
COMMISSION:
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
______________________________
David Varner, Vice President
ATTEST:
______________________________
Donald E. Inks, Secretary
DEVELOPER:
HEADING FOR HOME LLC,
a Delaware limited liability company
By: _____________________________________
Name: Andrew Berlin
Title: Manager