HomeMy WebLinkAbout5A2 Second Amendment to Development Agreement (Wharf Partners)1
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT (this “Second
Amendment”) is made on June 24, 2021, 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 Wharf Partners 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
February 22, 2018, which was amended by a First Amendment to Development Agreement, dated
December 13, 2018 (together, the “Development Agreement”), for the development of a Project
in the River East Development Area near Seitz Park.
B. Due to construction constraints, the Parties entered into a related Memorandum of
Understanding, dated December 13, 2018, as the same may be amended from time to time, which
set forth certain obligations of the Parties relative to each other and additional development
projects in the area of Seitz Park.
C. The construction constraints are continuing and the Parties desire to modify further
the Development Agreement to reflect their agreements related to their continued cooperation 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 4.5 shall be deleted in its entirety and replaced with the following:
4.5 Timeframe for Completion. The Developer hereby agrees to commence substantial
elements of Phase I of the Project no later than April 30, 2018 (the "Phase I Commencement
Deadline"). The Developer hereby agrees to reach substantial completion of the entirety of
Phase I of the Project, in accordance with the Project Plan attached hereto as Exhibit B and
the plans and specifications submitted to the Commission pursuant to Section 4.8 of this
Agreement, by the date that is twenty-four months after the Effective Date of this
Agreement (the "Phase I Completion Deadline"). The Developer hereby agrees to
commence substantial elements of Phase II of the Project no later than June 30, 2023 (the
"Phase II Commencement Deadline"). The Parties acknowledge that the City is working
on another project abutting the Developer Property and that the installation of pilings and
eventual construction of Phase II of the Project will impact the City's project; therefore, the
Commission desires to install the pilings for Phase II of the Project as Local Public
Improvements under the terms and conditions of this Agreement. The Parties agree that the
timing of the Commission's installation of the pilings for Phase II of the Project as Local
Public Improvements shall not be considered when determining the Developer's
compliance with the Phase II Commencement Deadline. The Developer hereby agrees to
reach substantial completion of the entirety of the Project, inclusive of Phase I and Parts 1
2
and 2 of Phase II, in accordance with the Project Plan attached hereto as Exhibit B and the
plans and specifications submitted to the Commission pursuant to Section 4.8 of this
Agreement, by September 30, 2025 (the "Project Completion Deadline"). For purposes of
assessing the Developer's compliance with this Section 4.5, the Commission has
determined that the Developer met the Phase I Commencement Deadline and the Phase I
Completion Deadline. For Developer's compliance with this Section 4.5 as it applies to
Phase II, the Commission will determine, in its sole discretion, the substantiality of the
improvements undertaken by the Developer by the Phase II Commencement Deadline
(without consideration for the Commission's installation of the pilings for Phase II, as set
forth herein) and the substantiality of the Developer's completion of the Project as a whole
by the Project Completion Deadline. Notwithstanding any provision of this Agreement to
the contrary, the Developer's failure to meet the any deadline as required under this Section
4.5 will constitute a default under this Agreement without any requirement of notice of or
an opportunity to cure such failure.
2. The Parties acknowledge that Phase I of the Project commenced on or before the
Phase I Commencement Deadline rendering Section 7.3 of the Development Agreement, requiring
the sale of the Property to the City or the Commission in the event of Developer's failure to meet
the Phase I Commencement Deadline, obsolete. As such, Section 7.3 of the Development
Agreement shall be deleted in its entirety.
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 M. Phillips, Secretary
DEVELOPER:
Wharf Partners LLC
By: _________________________________
Frank A. Perri, Managing Member