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HomeMy WebLinkAbout6A1A- C ►) RESOLUTION NO. Z z A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION AUTHORIZING AND RATIFYING EXECUTION OF DOCUMENTS RELATED TO THE FIRST SOURCE BANK BUILDING BY THE DIRECTOR OF THE DEPARTMENT OF REDEVELOPMENT ON BEHALF OF THE CITY OF SOUTH BEND, INDIANA, DEPARTMENT OF REDEVELOPMENT (Fifth Amendment to Operation, Maintenance and Easement Agreement) WHEREAS, the South Bend Redevelopment Commission (the "Commission ") is the governing body of the City of South Bend Department of Redevelopment (the "Department ") 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, the Department owns, leases and manages property within the boundaries of the City of South Bend, Indiana; and WHEREAS, the Department is a signatory to a certain Operation, Maintenance and Easement Agreement, together with amendments thereto, related to that certain Parking Facility and Atrium (the "Common Facilities ") located in South Bend, next to the First Source Bank and the Doubletree Hotel and is a signatory to the Fifth Amendment to Operation, Maintenance and Easement Agreement ( "Exhibit A ") and other documents related the Common Facilities (the "Documents "); and WHEREAS, the Commission desires to expressly authorize the Director of the Department of Redevelopment for the Commission to execute such administrative documents as necessary to provide for the proper maintenance and management of its property interests and to ratify his actions taken pursuant thereto; NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT COMMISSION AS FOLLOWS: 1. The Director of the Department of Redevelopment of the Commission, Donald Inks, or his successor (the "Director ") is hereby authorized to execute, on behalf of the Commission, the Documents, including the following: a. Fifth Amendment to Operation, Maintenance and Easement Agreement; b. Any other documents necessary to effect the closing of this transaction. 2. Any actions taken by the Director with respect to the Documents is hereby ratified by the Commission. 3. This Resolution shall be in full force and effect after its adoption. ADOPTED at a meeting of the South Bend Redevelopment Commission held on February 14, 2013, at 1308 County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. ATTEST: Signature Printed Name and Title South Bend Redevelopment Commission CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT Signature Printed Name and Title South Bend Redevelopment Commission 2 Exhibit A Fifth Amendment to Operation, Maintenance and Easement Agreement FIFTH AMENDMENT TO OPERATION, MAINTENANCE AND EASEMENT AGREEMENT This Fifth Amendment to Operation, Maintenance and Easement Agreement (this "Amendment ") is made and entered into effective as of , 2013, by and among Jenna Hotel Investments, LLC ( "Jenna "), a Delaware limited liability company, with offices at One Ten James Street, Suite 102, Edmonds, Washington 98020 (successor to Rahn Properties II ( "Rahn "), South Bend Joint Venture and Host Hotels & Resorts, L.P. ( "Host ")), First Bank Center Limited Partnership ( "Center "), a Minnesota limited partnership, with its principal office at 4924 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402 (successor to 1St Source Corporation f /k /a FBT Bancorp, Inc. ("I St Source ")), the City of South Bend Department of Redevelopment (the "Agency ") by and through the South Bend Redevelopment Commission (the "Commission "), with its principal office at 1400 County -City Building, South Bend, Indiana 46601, and the City of South Bend, Indiana by and through its Board of Public Works (the "City "). WHEREAS, Rahn (predecessor to Jenna) and FBT Bancorp, Inc. (predecessor to Center), previously entered into that certain Operation, Maintenance and Easement Agreement dated as of October 22, 1 979 (the "1979 Operations Agreement "), which was amended by a First Amendment thereto dated as of January 12, 1982, a Second Amendment thereto dated as of May 1, 1987, a Third Amendment thereto dated as of December 28, 2010 ( "Third Amendment "), and a Fourth Amendment thereto dated as of August 4, 2011 (collectively, the "Operations Agreement "), pertaining to the operation, maintenance and repair of the Common Facilities (as defined in the Operations Agreement); and WHEREAS, the parties wish to continue to provide for the operation, maintenance and repair of the Common Facilities, as hereinafter provided; and WHEREAS, the parties hereto now desire to further amend the Operations Agreement. NOW, THEREFORE, in consideration of the above, the parties agree as follows: 1. The above recitals to this Amendment are hereby incorporated into and made a part of this instrument. 2. The Operations Agreement is hereby amended to include as Exhibit A, the document attached as Schedule 1 to this Amendment. 3. Section 17(g) of the Operations Agreement is hereby amended and restated as follows: (g) Notices. Any notice, demand, consent, approval, payment or other document or instrument required or permitted to be served upon any of the parties hereto shall be in writing and shall be either (i) delivered by hand, (ii) mailed by United 02179936D } BU OCA 944904 4 Error! Unknown document property name. States registered mail, return receipt requested, postage prepaid, (iii) sent by a reputable, national overnight delivery service (e.g., Federal Express), or (iv) sent by facsimile (with the original being sent by one of the other permitted means or by regular United States mail) and addressed to each party at the applicable address set forth herein. Any such notice, request, or other communication shall be considered given or delivered, as the case may be, on the date of hand delivery (if delivered by hand), on the third (3rd) day following deposit in the United States mail (if sent by United States registered mail), on the next business day following deposit with an overnight delivery service with instructions to deliver on the next day or on the next business day (if sent by overnight delivery service), or on the day sent by facsimile (if sent by facsimile, provided the original is sent by one of the other permitted means as provided in this paragraph or by regular United States mail). Commission and Agency: Executive Director Department of Community Investment 225 West Jefferson Blvd. Suite 1400 S South Bend, In. 46601 with copies to: Office of the City Attorney Attn: Aladene DeRose 1200 City County Building 227 West Jefferson Blvd South Bend, IN 46601 Richard A. Nussbaum, II 210 South Michigan Street 5th Floor - Plaza Building South Bend, Indiana 46601 Telephone: (574) 234 -3000 Facsimile: (574) 234 -4220 Jenna: Jenna Hotel Investments, LLC 201 5th Avenue South, Suite 200 Edmonds, Washington 98020 Attention: Randy J. Meyer, CFO Telephone: (425) 771 -1788 Facsimile: (425) 672 -8280 Email: rmeyer @thehotelgroup.com -2- {02179936.D0C,1 } DOCS- #3822496 -v4 Error! Unknown document property name. with a copy to: Cairncross & Hempelmann 524 Second Avenue, Suite 500 Seattle, Washington 98104 Attention: Sandip Soli Tel. No.: (206) 587 -0700 Fax No.: (206) 587 -2308 Email: ssoli @cairncross.com Center: Bob Dunbar Chief Operating Officer - Asset Management Grubb & Ellis I Cressy & Everett 3930 Edison Lakes Parkway Suite 200 Mishawaka, IN 46545 Telephone: (574) 271 -4060 Facsimile: (574) 271 -4292 with a copy to: Robert W. Horstman First Bank Center Limited Partnership 4924 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 204 -0647 Facsimile: (612) 338 -7079 Any party hereto may change the name and address of the designee to which notice shall be sent by giving written notice of such change to the other parties hereto as provided above. 4. The parties acknowledge assignment of the Operations Agreement to Jenna by Host, and Jenna expressly assumes all obligations of Host under the Operations Agreement. 5. The Agency has joined in the execution of this Amendment to confirm that the Agency's agreement as to the matters contained in Section 18 of the Operations Agreement shall extend to and include the terms and conditions of this Amendment, and to adopt, affirm and join into the grants, covenants and agreements made by the Commission in Section 10 of the Third Amendment. 6. The City has joined in the execution of this Amendment to adopt, affirm and join into the grants, covenants and agreements made by the South Bend Redevelopment Commission in Section 10 of the Third Amendment. -3- {02179936.DOC;1 J DOCS43822496 -v4 Error! Unknown document property name. 7. This Amendment may be executed (by facsimile, digital or other electronic means) in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. 8. The Operations Agreement remains in full force and effect and is in all respects hereby ratified and affirmed, except as amended hereby. 9. Consistent with Section 16 of the Operations Agreement, this Amendment shall be recorded among the appropriate public records of the State of Indiana. 0 102179936.DOC;1 } ROCS- #3822496 -v4 Error! Unknown document property name. IN WITNESS WHEREOF, the undersigned have executed this Fifth Amendment of Operation, Maintenance and Easement Agreement as of the date first above written. FIRST BANK CENTER LIMITED PARTNERSHIP, a Minnesota limited partnership By: HUNTER, KEITH INDUSTRIES INC., Its General Partner By:_ Name: Title: Attest: Name: Title: {02179936.D0C;1 } ROCS- #3822496 -v4 Error! Unknown document property name. JENNA HOTEL INVESTMENTS, LLC, a Delaware limited liability company By: HOTEL GROUP OPPORTUNITY FUND IV, LLC, Its Member By: By: THG CAPITAL, LLC Its Manager Randy J. Meyer, CFO Attest: Name: Title: By: By: SOUTH BEND HOTEL VENTURES, LLC, Its Member By: THG CAPITAL, LLC Its Manager Randy J. Meyer, CFO Attest: Name: Title: -5- SOUTH BEND REDEVELOPMENT COMMISSION, as to itself and on behalf of the City of South Bend Department of Redevelopment By:_ Name: Title: Attest: Name: Title: 102179936.DOC;1 } ROCS- #3822496 -v4 Error! Unknown document property name. CITY OF SOUTH BEND INDIANA By: Its Board of Public Works Name: Title: Attest: Name: Title: no STATE OF MINNESOTA SS: HENNEPIN COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared Robert W. Horstman, the Vice President — Finance of Hunter, Keith Industries Inc., General Partner of First Bank Center Limited Partnership, and acknowledged the execution of the foregoing Fifth Amendment to Operation, Maintenance and Easement Agreement on this day of 20 Witness my hand and notarial seal. (SEAL) (Written Signature) (Printed Signature) My Commission Expires: _ My County of Residence is: -7- {02179936.DOC;1 ; ROCS- 0822496 -v4 Error: Unknown document property name. Notary Public STATE OF WASHINGTON SS: KING COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared Randy J. Meyer, the CFO of THG Capital, LLC, Manager of Hotel Group Opportunity Fund IV, LLC and South Bend Hotel Ventures, LLC, the members of Jenna Hotel Investments, LLC, and acknowledged the execution of the foregoing Fifth Amendment to Operation, Maintenance and Easement Agreement on this day of , 20 Witness my hand and notarial seal. (SEAL) (Written Signature) (Printed Signature) My Commission Expires: _ My County of Residence is: -8- {02179936.DOC;1 } DOCS- #3822496 -v4 Error! Unknown document property name. Notary Public STATE OF INDIANA SS: ST. JOSEPH COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared , the of the South Bend Redevelopment Commission, and acknowledged the execution of the foregoing Fifth Amendment to Operation, Maintenance and Easement Agreement on this day of , 20 Witness my hand and notarial seal. (SEAL) (Written Signature) (Printed Signature) My Commission Expires: _ My County of Residence is: 0 -9- {02179936.DOC;1 } ROCS- #3822496 -v4 Error? Unknown document property name. Notary Public STATE OF INDIANA ) SS: ST. JOSEPH COUNTY ) Before me, the undersigned, a Notary Public in and for said State, personally appeared , the of the Board of Public Works of the City of South Bend, Indiana, and acknowledged the execution of the foregoing Fifth Amendment to Operation, Maintenance and Easement Agreement on this day of , 20 Witness my hand and notarial seal. (SEAL) My Commission Expires: _ My County of Residence is: -10- {02179936.DOC;1 } DOCS- 0822496 -v4 Error! Unknown document property name. (Written Signature) (Printed Signature) Notary Public SCHEDULE 1 EXHIBIT A TO OPERATION. MAINTENANCE AND EASEMENT AGREEMENT Schedule 1 -1- {02179936.DOC;1 } DOCS- 43822496 -v4 Error! Unknown document property name.