HomeMy WebLinkAbout5B2 Second Amendment to Development Agreement (Greater Lowell Holdings)1
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT (this “Second
Amendment”) is made on August 22, 2019, by and between the South Bend Redevelopment
Commission, the governing body of the City of South Bend Department of Redevelopment (the
“Commission”), and Greater Lowell Holdings LLC, an Indiana limited liability company (the
“Developer”) (each a “Party,” and collectively the “Parties”).
RECITALS
A. The Commission and the Developer entered into a Development Agreement dated
effective December 14, 2017, which was amended on June 13, 2019 by a First Amendment to
Development Agreement (together, the “Development Agreement”), for the development of a
Project in the River East Development Area.
B. The Commission agreed to expend the Funding Amount to complete the Local
Public Improvements (“LPI”) in support of the Project in accordance with the Project Plan, as the
same LPI are set forth on Exhibit C to the Development Agreement.
C. Pursuant to Section 5.2(c) of the Development Agreement, bids were received for
the Local Public Improvements (“LPI”) 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. The Commission has agreed to pay a portion of the overage, and the Developer has
agreed to pay the remainder of the overage and any further change orders needed to complete the
LPI; in consideration therefor, the Commission is willing to increase the Funding Amount, thereby
permitting the Board’s award of the contracts for the LPI.
E. The Parties now desire to modify the Development Agreement to reflect the Parties’
agreement, as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and obligations stated in the
Development Agreement and this Second Amendment, the adequacy of which is hereby
acknowledged, the Parties agree as follows:
1. Section 1.3 of the Development Agreement shall be deleted in its entirety and
replaced with the following:
1.3 Funding Amount. “Funding Amount” means an amount not to exceed Four
Hundred Sixty-Seven Thousand Seven Hundred Twenty-Five and 38/100
Dollars ($467,725.38) of tax increment finance revenues to be used for paying
the costs associated with the construction, equipping, inspection, and delivery
of the Local Public Improvements in support of the Project (inclusive of the
Developer’s improvements to both the LaSalle Property and the Colfax
Property). The Parties acknowledge and agree that Developer shall expend
Four Hundred Thousand Dollars ($400,000.00) on Local Public Improvements
in accordance with Exhibit C, and an amount not to exceed Sixty Thousand
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Dollars ($60,000.00) is specifically to be applied to the infrastructure cost of
water taps for the sprinkler system of the Colfax Property (“Sprinkler Funds”).
The remaining Seven Thousand Seven Hundred Twenty-Five and 38/100
Dollars ($7,725.38) shall be reimbursed to the Commission by the Developer
in accordance with Section 5.2(d).
2. Section 5.2(d) of the Development Agreement shall be deleted in its entirety and
replaced with the following:
(d) Notwithstanding anything contained herein to the contrary, in the event the
costs associated with the Local Public Improvements are in excess of the Funding
Amount, Developer, at its sole option, may determine to pay to the Commission the
amount of the excess costs to permit timely completion of the Local Public
Improvements by the Commission, or an agent of the Commission, which amounts
shall be applied for such purpose. In such case, the Developer shall provide the
Commission with payment in immediately available funds within five (5) business
days of its determination, and, in any event, before a notice to proceed will be
provided by the Commission, or an agent of the Commission, to any contractor. If
Developer chooses not to pay any such excess costs of the Local Public
Improvements (above the Funding Amount), the Commission may reduce the scope
of the Local Public Improvements to the amount which may be funded with the
Funding Amount. In no event will the Commission be required to spend more than
the Funding Amount in connection with the Project.
3. The Developer hereby expressly reaffirms its obligations under the Development
Agreement, and, unless expressly modified by this Second Amendment, the terms and provisions
of the Development Agreement remain in full force and effect.
4. Capitalized terms used in this Second Amendment will have the meanings set forth
in the Development Agreement unless otherwise stated herein.
5. The recitals set forth above are hereby incorporated into the operative provisions of
this Second Amendment.
6. This Second Amendment will be governed and construed in accordance with the
laws of the State of Indiana.
7. This Second 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 Second Amendment to
Development Agreement as of the first date stated above.
COMMISSION:
SOUTH BEND REDEVELOPMENT
COMMISSION
By:____________________________________
Marcia I. Jones, President
ATTEST:
By:____________________________________
Quentin Phillips, Secretary
DEVELOPER:
GREATER LOWELL HOLDINGS LLC
By: _____________________________________
Frank Perri, Manager