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HomeMy WebLinkAbout5A2 Development Agreement (Sibley Machine and Foundry Corporation)1 DEVELOPMENT AGREEMENT This Development Agreement (this “Agreement”), is effective as of March 25, 2021 (the “Effective Date”), by and between the City of South Bend, Department of Redevelopment, acting by and through its governing body, the South Bend Redevelopment Commission (the “Commission”), and Sibley Machine and Foundry Corporation, an Indiana corporation with offices at127 E. Sample Street, South Bend, Indiana 46601 (the “Developer”) (each, a “Party,” and collectively, the “Parties”). RECITALS WHEREAS, the Commission exists and operates under the provisions of the Redevelopment of Cities and Towns Act of 1953, as amended (I.C. 36-7-14 et seq., the “Act”); and WHEREAS, the Act provides that the clearance, replanning, and redevelopment of redevelopment areas are public uses and purposes for which public money may be spent; and WHEREAS, the Developer owns certain real property located at 127 E Sample Street, South Bend, Indiana, which is more particularly described in Exhibit A, together with all improvements thereon and all easements, rights, licenses, and other interests appurtenant thereto (collectively, the “Developer Property”); and WHEREAS, the Developer Property is located within the corporate boundaries of the City of South Bend, Indiana (the “City”), within the River West Development Area (the “Area”); and WHEREAS, the Developer desires to construct, renovate, or otherwise rehabilitate certain elements of the Developer Property (the “Project”) in accordance with the project plan (the “Project Plan”) attached hereto as Exhibit B; and WHEREAS, the City of South Bend, Indiana (the "City") has embarked on a program entitled "Scaling Up South Bend" (the "Program") that assists entrepreneurs of product-based businesses by providing training and consultation as well as subsidized production space; and WHEREAS, upon graduation from the Program, participants will need an affordable location in which to develop their businesses; and WHEREAS, the Developer Property contains available space, as set forth in Exhibit B-1, which the Developer will agree to allow the graduates of the Program to use at a reduced rent as a part of the Project; and WHEREAS, the Commission has adopted (and subsequently amended, from time to time) a development plan, which contemplates development of the Area consistent with the Project; and WHEREAS, the Commission believes that accomplishing the Project as described herein is in the best interests of the health, safety, and welfare of the City and its residents; and 2 WHEREAS, the Commission desires to facilitate and assist the Project by undertaking the local public improvements stated in Exhibit C (the “Local Public Improvements”) and the financing thereof, subject to the terms and conditions of this Agreement and in accordance with the Act. NOW, THEREFORE, in consideration of the mutual promises and obligations stated in this Agreement, the adequacy of which is hereby acknowledged, the Parties agree as follows: SECTION 1. DEFINITIONS. Unless otherwise defined in this Agreement, capitalized terms used in this Agreement have the following meanings: 1.1 Board of Works. “Board of Works” means the Board of Public Works of the City, a public body granted the power to award contracts for public works pursuant to I.C. 36-1-12. 1.2 Funding Amount. “Funding Amount” means an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) 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. 1.3 Rentable Square Feet. “Rentable Square Feet” or "RSF" means the total square footage used by the tenant(s), including but not limited to the common areas. SECTION 2. INTERPRETATION, TERMS, AND RECITALS. 2.1 Interpretation. (a) The terms “herein,” “hereto,” “hereunder,” and all terms of similar import shall be deemed to refer to this Agreement as a whole rather than to any Article of, Section of, or Exhibit to this Agreement. (b) Unless otherwise specified, references in this Agreement to (i) “Section” or “Article” shall be deemed to refer to the Section or Article of this Agreement bearing the number so specified, (ii) “Exhibit” shall be deemed to refer to the Exhibit of this Agreement bearing the letter or number so specified, and (iii) references to this “Agreement” shall mean this Agreement and any exhibits and attachments hereto. (c) Captions used for or in Sections, Articles, and Exhibits of this Agreement are for convenience of reference only and shall not affect the construction of this Agreement. (d) The terms “include”, “including” and “such as” shall each be construed as if followed by the phrase “without being limited to.” 2.2 Recitals. The Recitals set forth above are incorporated into and are a part of this Agreement for all purposes. 3 SECTION 3. ACCESS. 3.1 Grant of Easement. The Developer will grant to the Commission a temporary, non- exclusive easement on, in, over, under and across any part(s) of the Developer Property (the “Easement”) in the form attached hereto as Exhibit D, to permit the Commission to fulfill its obligations under this Agreement, including the construction, equipping, inspection, and delivery of the Local Public Improvements. The Easement shall (a) inure to the benefit of the Commission and the Board of Works or any contractors acting on behalf of the Commission in connection with the construction, equipping, inspection, and delivery of the Local Public Improvements; (b) shall bind the Developer and its grantees, successors, and assigns; and (c) shall terminate no later than upon completion of the Local Public Improvements, as determined by the Board of Works. SECTION 4. DEVELOPER’S OBLIGATIONS. 4.1 Generally. The Parties acknowledge and agree that the Commission’s agreements to perform and abide by the covenants and obligations set forth in this Agreement are material consideration for the Developer’s commitment to perform and abide by the covenants and obligations of the Developer contained in this Agreement. 4.2 The Project. (a) The Developer will perform all necessary work to complete the improvements set forth in the Project Plan attached hereto as Exhibit B, which improvements shall comply with all building, zoning, and land use laws and ordinances. (b) The Developer will complete the Project in accordance with the Project Plan attached hereto as Exhibit B. 4.3 Cooperation. The Developer agrees to endorse and support the Commission’s efforts to expedite the Local Public Improvements through any required planning, design, public bidding, construction, inspection, waiver, permitting, and related regulatory processes. 4.4 Obtain Necessary Easements. The Developer agrees to obtain any and all easements from any governmental entity and/or any other third parties that the Developer or the Commission deems necessary or advisable in order to complete the Local Public Improvements, and the obtaining of such easements is a condition precedent to the Commission’s obligations under this Agreement. 4.5 Timeframe for Completion. The Developer hereby agrees to complete the portion of the Project containing the space for the Program graduates by July 2nd, 2021 ("Leased Space Completion Date"). The Parties acknowledge that other obligations of the Developer and the Commission may be required to occur after that date. Notwithstanding any provision of this Agreement to the contrary, the Developer’s failure to complete the portion of the Project containing space for the Program graduates by the Leased Space Completion Date will constitute a default under this Agreement without any requirement of notice of or an opportunity to cure such failure. 4 4.6 Developer’s Obligation to Lease Space. The Developer agrees to make available for a period of at least eighteen (18) months from the Leased Space Completion Date ("Availability Period") nine thousand Rentable Square Feet (9,000 RSF) of space within the Developer Property for use by the Program graduates=. RSF not reserved or leased by Program graduates during the Availability Period may be leased by the Developer to outside tenants with the cooperation and agreement of the Commission's staff designee. The Parties acknowledge and agree that the Developer's role is limited to property leasing and management. Business consulting and assistance are solely the role and purview of the Program. 4.7 Rental Rates. Commencing June 1, 2021, the Program graduates shall have a right of first refusal to the RSF at a reduced rent. The reduced rental rates shall be jointly agreed upon by the Developer and the Commission's staff designee. The base rate shall be no less than $7.00 and no more than $9.00 per rentable square foot through the contract term. All custom tenant buildouts or utility/service needs will either be paid upfront by the tenant or amortized over the course of the lease at cost plus a 10% markup. The Developer will provide reduced rent on the following schedule to Program graduates: 99% discount for 6 months (June 2021 – December 2021), 66% discount for 6 months (January 2022 – May 2022), 33% discount for 6 months (June 2022 – December 2022). After December 31, 2022, the Developer may default to full or market rates. 4.8 Configuration of Lease Space and Lease. Lease space will be determined by the model provided by the City's consultant, Incremental Development. The leases with Program graduates will be gross leases, calculated per Rentable Square Foot. The RSF is arrived by adding the tenant’s useable square feet ("USF") to the tenant’s pro-rata share of the building's common spaces. Developer shall work with the Program graduates to configure the leased space and to agree upon acceptable lease terms. The lease terms shall also include provisions stating that the Developer is responsible for the maintenance of all common and/or vacant areas (including the outdoor patio) and to keep such areas free from debris or clutter. 4.9 Program Use of Outdoor Patio. The Developer will make the outdoor patio space available to the Program as needed and at no charge for Program events through December 31, 2022. 4.10 Reporting Obligations. The Developer agrees to provide a report to the Commission, no later than January 15 of each year after the Effective Date of this Agreement and continuing until January 15, 2023, indicating the square footage rented by graduates of the Program at the reduced rate, along with the termination dates of the graduates' outstanding leases. Additionally, for the sole purpose of confirming compliance with this Agreement, on or before August 1, 2021, the Developer shall provide the Commission with copies of all executed leases with the Program's graduates. 4.11 Costs and Expenses of Construction of Project. The Developer hereby agrees to pay, or cause to be paid, all costs and expenses of planning, construction, management, and all other activities or purposes associated with the Project Plan (including legal fees), exclusive of the Local Public Improvements, which shall be paid for by the Commission by and through the Funding Amount subject to the terms of this Agreement. 5 4.12 Non-Interference. Developer hereby agrees to use commercially reasonable efforts to minimize disruption for those living and working near the Developer Property during construction of the Project. 4.13 Insurance. The Developer shall purchase and maintain comprehensive insurance coverage as is appropriate for the work being performed with respect to the Project. The Developer shall provide proof of such adequate insurance to the Commission and shall notify the Commission and the City of any change in or termination of such insurance. During the period of construction or provision of services regarding any Local Public Improvements, the Developer shall maintain insurance in the kinds and for at least the minimum amounts as described in Exhibit E attached hereto and the Commission and the City shall be named as additional insureds on such policies (but not on any worker’s compensation policies). Nothing contained within this Section or this Agreement shall be construed as a waiver by the City or the Commission of any governmental immunity or liability limitations available to it under Indiana law 4.14 Information. The Developer agrees to provide any and all due diligence items with respect to the Project reasonably requested by the Commission. 4.15 Other Incentives. The Developer agrees that, for its completion of the Project (as defined in the Project Plan), the Developer will not request or pursue any financial incentive or support from the City for this Project other than the Commission’s commitment of the Funding Amount under this Agreement, including without limitation any tax abatement with respect to the Developer Property or any other property associated with the Project. SECTION 5. COMMISSION’S OBLIGATIONS. 5.1 Generally. The Parties acknowledge and agree that the Developer’s agreement to perform and abide by the covenants and obligations set forth in this Agreement is material consideration for the Commission’s commitment to perform and abide by the covenants and obligations of the Commission contained in this Agreement. 5.2 Completion of Local Public Improvements. (a) The Commission hereby agrees to complete (or cause to be completed) the Local Public Improvements described in Exhibit C attached hereto on a schedule to be reasonably determined and agreed to by the Commission and the Developer, as may be modified due to unforeseen circumstances and delays. (b) The Local Public Improvements will be completed in accordance with all applicable public bidding and contracting laws and will be subject to inspection by the Engineering Department or its designee. (c) 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. If Developer chooses not to pay any such excess costs of the Local Public 6 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 Local Public Improvements. 5.3 Cooperation. The Commission agrees to endorse and support the Developer’s efforts to expedite the Project through any required planning, design, permitting, waiver, and related regulatory processes, provided, however, that the Commission will not be required to expend any money in connection therewith. 5.4 Public Announcements, Press Releases, and Marketing Materials. The Commission hereby agrees to coordinate all public announcements and press releases relating to the Project with the Developer. SECTION 6. COOPERATION IN THE EVENT OF LEGAL CHALLENGE. 6.1 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 the Commission be required to bear the fees and costs of the Developer’s attorneys nor shall the Developer be required to bear the fees and costs of the Commission’s attorneys. The Parties agree that if any other provision of this Agreement, or this 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 6.1, which shall survive such invalidation, nullification, or setting aside. SECTION 7. DEFAULT. 7.1 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, 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. Upon the occurrence of a default under this Agreement, the non-defaulting Party may (a) terminate this Agreement, or (b) institute legal proceedings at law or in equity (including any action to compel specific performance) seeking remedies for such default. If the default is cured within thirty (30) days after the notice described in this Section 7.1, then no default shall exist and the noticing Party shall take no further action. 7.2 Reimbursement Obligation. Developer shall use its good faith efforts to complete the Project Plan no later than June 30. 2022. In the event that the Developer fails to offer a right of first refusal to the Program graduates for leased space within the RSF for the timeframe set forth herein, then upon the written demand of the Commission, the Developer will repay the Commission One Hundred Fifty Percent (150%) of the portion of the Funding Amount expended by the Commission in furtherance of the Local Public Improvements as of the date of the Commission’s demand. 7 7.3 Force Majeure. Notwithstanding anything to the contrary contained in this Agreement, none of the Parties 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, acts of terrorism, restrictions imposed or mandated by governmental entities, enactment of conflicting state or federal laws or regulations, new or supplemental environments regulations, contract defaults by third parties, or similar basis for excused performance which is not within the reasonable control of the Party to be excused (each, an event of “Force Majeure”). Upon the request of any of the Parties, a reasonable extension of any date or deadline set forth in this Agreement due to such cause will be granted in writing for a period necessitated by the event of Force Majeure, or longer as may be mutually agreed upon by all the Parties. SECTION 8. NO AGENCY, JOINT VENTURE, OR PARTNERSHIP; CONFLICT OF INTEREST; INDEMNITY. 8.1 No Agency, Joint Venture or Partnership. The Parties acknowledge and agree that: (a) The Project is a private development; (b) Except as otherwise described herein, none of the Commission, the Board of Works, or the Developer has any interest or responsibilities for, or due to, third parties concerning any improvements until such time, and only until such time, that the Commission, the Board of Works, and/or the Developer expressly accepts the same; and (c) The Parties hereby renounce the existence of any form of agency relationship, joint venture or partnership between the Commission, the Board of Works, and the Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between the Commission, the Board of Works, and the Developer. 8.2 Conflict of Interest; Commission Representatives Not Individually Liable. No member, official, or employee of the Commission or the City may have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership, or association in which he or she is, directly or indirectly, interested. No member, official, or employee of the Commission or the City 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 its successors and assigns, or on any obligations under the terms of this Agreement. No partner, member, employee, or agent of the Developer or successors of them shall be personally liable to the Commission under this Agreement. 8.3 Indemnity. The Developer agrees to indemnify, defend, and hold harmless the Commission and the City from and against any third-party claims suffered by the Commission or the City resulting from or incurred in connection with the Local Public Improvements or the Project. 8 SECTION 9. MISCELLANEOUS. 9.1 Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in full force and effect unless amended or modified by mutual consent of the parties. 9.2 Waiver. Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall nay single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of the same or of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of any such right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. 9.3 Other Necessary Acts. Each Party shall execute and deliver to the other Parties all such other further instruments and documents as may be reasonably necessary to accomplish the Project and the Local Public Improvements contemplated by this Agreement and to provide and secure to the other Parties the full and complete enjoyment of its rights and privileges hereunder. Notwithstanding the foregoing, the Parties understand and agree that certain actions contemplated by this Agreement may be required to be undertaken by persons, agencies, or entities that are not a party to this Agreement, including, but not limited to certain permits, consents, and/or approvals (to the extent they have not yet been obtained and completed), and that any action by such third parties shall require independent approval by the respective person, agency, entity, or governing body thereof. 9.4 Dispute Resolution; Waiver of Jury Trial. Any action to enforce the terms or conditions of this Agreement or otherwise concerning a dispute under this Agreement will be commenced in the courts of St. Joseph County, Indiana, unless the Parties mutually agree to an alternative method of dispute resolution. 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. 9.5 Attorneys’ Fees. In the event of any litigation, mediation, or arbitration between the Parties regarding an alleged breach of this Agreement, none of the Parties shall be entitled to any award of attorney’s fees. 9.6 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; and 9 (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. 9.7 Counterparts. This Agreement 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. 9.8 Notices and Demands. Any notice, demand, or other communication required or permitted under the terms of this Agreement may be delivered (a) by hand-delivery (which will be deemed delivered at the time of receipt), (b) by registered or certified mail, return receipt requested (which will be deemed delivered three (3) days after mailing), or (c) by overnight courier service (which will be deemed delivered on the next business day) to each Party’s respective addresses and representatives stated below. Developer: Sibley Machine and Foundry Corporation 134 E. Tutt Street South Bend, IN 46601 Attn: ______________________ With a copy to: ______________________ ______________________ ______________________ Attn: ______________________ Commission: South Bend Redevelopment Commission 1400 S. County-City Building 227 W. Jefferson Blvd. South Bend, IN 46601 Attn: Executive Director, South Bend Department of Community Investment With a copy to: South Bend Legal Department 1200 S. County-City Building 227 W. Jefferson Blvd. South Bend, IN 46601 Attn: Corporation Counsel 9.9 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Indiana. 9.10 Authority. Each undersigned person executing and delivering this Agreement on behalf of a Party represents and certifies that he or she is the duly authorized officer or representative of such Party, that he or she has been fully empowered to execute and deliver this Agreement on behalf of such Party, and that all necessary action to execute and deliver this Agreement has been taken by such Party. 10 9.11 No Third-Party Beneficiaries. Except as otherwise contemplated herein, 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. 9.12 Assignment. The Developer’s rights under this Agreement shall be personal to the Developer and shall not run with the land. The Developer may not assign its rights or obligations under this Agreement to any third party without obtaining the Commission’s prior written consent to such assignment, which the Commission may give or withhold in its sole discretion. In the event the Developer seeks the Commission’s consent to any such assignment, the Developer shall provide to the Commission all relevant information concerning the identities of the persons or entities proposed to be involved in and an explanation of the purposes for the proposed assignment(s). 9.13 Further Assurances. The Parties agree that they will each undertake in good faith, as permitted by law, any action and execute and deliver any document reasonably required to carry out the intents and purposes of this Agreement. 9.14 Exhibits. All exhibits described herein and attached hereto are incorporated into this Agreement by reference. 9.15 Entire Agreement. No representation, promise, or inducement not included in this Agreement will be binding upon the Parties hereto. This Agreement cannot be modified except by mutual agreement of the Parties set forth in a written instrument signed by the Parties’ authorized representatives. 9.16 Time. Time is of the essence of this Agreement. Signature Page Follows IN WITNESS WHEREOF, the Parties hereby execute this Agreement to be effective as of the Effective Date stated above. SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ Marcia I. Jones, President ATTEST: ______________________________ Quentin M. Phillips, Secretary SIBLEY MACHINE AND FOUNDRY CORPORATION By: _____________________________________ Name: ___________________________________ Title: ___________________________________ EXHIBIT A Description of Developer Property Lots 9, 10, 11, and 12 of the Indiana Lumber Co. 2nd Tutt Street Addition, commonly known as 127 E. Sample Street, South Bend, St. Joseph County, Indiana. Parcel Nos. 018-3022-0830 EXHIBIT B Project Plan The Developer will complete the following work in accordance with the terms and conditions of this Agreement and in compliance with all applicable laws and regulations: 1. Remodel 9,000 RSF of space to accommodate Program graduates; specifically, the Developer will pre-configure space #1 and space #2 per the site plan attached in Exhibit B-1. 2. The Developer will install and/or remodel restroom facilities serving the tenant spaces. 3. The Developer will work with the Program graduates and in accordance with advice and practices outlined by the City's consultant, Incremental Development, to configure the leased space within the RSF. EXHIBIT B-1 Available Space (See Attached) EXHIBIT C Description of Local Public Improvements The Commission will complete, or cause to be completed, the following work in accordance with the terms and conditions of this Agreement and in compliance with all applicable laws and regulations: Creation of architectural and/or engineering project plan, as well as bid and submittal documents, for the development of a patio area, and the replacement of windows and exterior doors. EXHIBIT D Form of Easement (See Attached) GRANT OF TEMPORARY EASEMENT THIS INDENTURE, made as of the day of _______________, 20__ (the “Effective Date”), by and between Sibley Machine and Foundry Corporation, an Indiana corporation with offices at 203 E. Tutt Street, South Bend, Indiana 46601 (the “Grantor”), and the South Bend Redevelopment Commission, governing body of the City of South Bend Department of Redevelopment, 1400 S. County- City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601 (the “Grantee”). WITNESSETH: For the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which Grantor hereby acknowledges, Grantor hereby grants, conveys, and warrants to Grantee a temporary, non- exclusive easement (the “Easement”) on, in, over, under and across the real property described in attached Exhibit 1 (the “Property”) for the construction, equipping, and delivery of certain improvements on the Property (the “Local Public Improvements”), together with the right of ingress to and egress from the Easement for said purposes, all pursuant to a certain Development Agreement by and between Grantor and Grantee, dated _________________, 2021 (the “Development Agreement”). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Development Agreement. The Easement granted herein shall pertain to the air, surface, and subsurface rights and interests of Grantor, for the use and benefit of Grantee, and its successors and assigns, to the extent necessary to accomplish and carry out the construction, equipping, and delivery of the Local Improvements on the Property. The Easement hereby granted includes the right and privilege for Grantee at reasonable times to clean and remove from said Easement any debris or obstructions interfering with said Easement. The Easement granted herein, and its associated benefits and obligations, shall inure to the benefit of Grantee and Grantee’s contractors acting on Grantee’s behalf in connection with the Local Public Improvements. Notwithstanding anything contained herein to the contrary, unless extended in writing by Grantor, the Easement shall terminate and be of no further force and effect on the date (hereinafter, the “Construction Termination Date”) of the earliest of the following: (a) completion of the Local Public Improvements; (b) expiration or earlier termination of the Development Agreement; or (c) such earlier date as Grantor and Grantee may agree to in writing. IN WITNESS WHEREOF, Grantor has executed this Grant of Temporary Easement on the date shown in the acknowledgment set forth below to be effective as of the Effective Date. GRANTOR: SIBLEY MACHINE AND FOUNDRY CORPORATION Printed: Its: STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for said State, personally appeared _______________________, to me known to be the _____________ of the Grantor in the above Grant of Temporary Easement, and acknowledged the execution of the same as the Grantor’s free and voluntary act and deed. WITNESS my hand and Notarial Seal this day of _______________, 20__. _______________________________________ ____________________, Notary Public Residing in County, IN My Commission Expires: _______________________ This instrument was prepared by ____________________________. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. ______________________. EXHIBIT 1 Description of Property Lots 9, 10, 11, and 12 of the Indiana Lumber Co. 2nd Tutt Street Addition, commonly known as 127 E. Sample Street, South Bend, St. Joseph County, Indiana. Parcel Nos. 018-3022-0830 EXHIBIT E Minimum Insurance Amounts A. Worker’s Compensation 1. State Statutory 2. Applicable Federal Statutory 3. Employer’s Liability $100,000.00 B. Comprehensive General Liability 1. Bodily Injury a. $1,000,000.00 Each Occurrence b. $1,000,000.00 Annual Aggregate Products and Completed Operation 2. Property Damage a. $1,000,000.00 Each Occurrence b. $1,000,000.00 Annual Aggregate C. Comprehensive Automobile Liability 1. Bodily Injury a. $500,000.00 Each Person b. $500,000.00 Each Accident 2. Property Damage a. $500,000.00 Each Occurrence