HomeMy WebLinkAbout5A2 Development Agreement (Beacon Health)DEVELOPMENT AGREEMENT
This Development Agreement (this "Agreement"), is effective as of March 28, 2024 (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"), Beacon Health System, Inc., an Indiana nonprofit corporation, with offices at
3245 Health Drive, Granger, Indiana 46530 ("Beacon") and Memorial Hospital of South Bend,
Inc., a subsidiary of Beacon, with offices at 615 N. Michigan Street, South Bend, Indiana 46601
("Memorial") (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, Beacon and Memorial own certain real property located in South Bend,
Indiana (the "City") described in Exhibit A, together with all improvements thereon and all
easements, rights, licenses, and other interests appurtenant thereto (collectively, the "Beacon
Property"), which each desire to develop; and
WHEREAS, Beacon currently has private financing and desires to construct, renovate, or
otherwise rehabilitate certain elements of Memorial Property (the "Project") in accordance with
the project plan (the "Project Plan") attached hereto as Exhibit S; and
WHEREAS, the Memorial Property is located within the corporate boundaries of the City,
within the River West Development Area (the "Area"); 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 Plan;
and
WHEREAS, the Commission seeks to support Beacon's development of a new patient
tower, which will generate over $230 million of new development in the downtown area; and
WHEREAS, it is anticipated Beacon's Memorial Patient Tower will add additional full-
time positions at the hospital; and
WHEREAS, the Commission believes that accomplishing the Project as described herein
advances a public good, the expected benefits exceed the expected costs to the Commission, and
is in the best interests of the health, safety, and welfare of the City and its residents; and
WHEREAS, the Commission desires to facilitate and assist the Project Plan 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; and
WHEREAS, the Commission previously entered into a certain Ground Lease (the "Ground
Lease") with Memorial for the property located at 111 W. Jefferson Blvd, South Bend, Indiana
46601; and
WHEREAS, Memorial desires to surrender the Ground Lease to the Commission and the
Commission is willing to accept the surrender on the terms and conditions set forth herein.
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 Assessed Value. "Assessed Value" means the market value -in -use of a property,
used for property tax assessment purposes as determined by the St. Joseph County Assessor.
1.2 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.
1.3 Funding Amount. "Funding Amount" means an amount not to exceed Two Million
Five Hundred Thousand Dollars ($2,500,000.00) 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.
1.4 Private Investment. "Private Investment" means an amount no less than Two
Hundred Thirty Million Dollars ($230,000,000.00), not including the Funding Amount, that has
been or will be expended by Beacon for the costs associated with constructing the improvements
set forth in the Project Plan, including architectural, engineering, construction and any other costs
directly related to completion of the Project that are expected to contribute to increased access to
healthcare services at Memorial Hospital and increases to the Assessed Value of the Project
Property and surrounding properties.
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.
SECTION 3. BEACON'S DEVELOPMENT OBLIGATIONS.
3.1 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 Beacon's commitment to perform and abide by the covenants and obligations of
Beacon contained in this Agreement.
3.2 The Project.
(a) Beacon will perform all necessary work to complete the improvements set
forth in the Project Plan attached hereto as Exhibit B and the plans and specifications to
be approved by the City Planner, or his designee, pursuant to Section 3.7 ("Submission of
Plans and Specifications for Project") of this Agreement, which improvements shall
comply with all zoning and land use laws and ordinances.
(b) Beacon will expend the Private Investment to complete the Project in
accordance with Exhibit B and the plans and specifications to be approved by the
Commission pursuant to Section 3.7 ("Submission of Plans and Specifications for Project")
of this Agreement.
3.3 Cooperation. Beacon 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.
3.4 Grant of Easement. Beacon will grant to the Commission a temporary, non-
exclusive easement on, in, over, under and across any part(s) of the parcels on which the local
public improvements will be performed (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) bind Beacon and its grantees,
successors, and assigns; and (c) terminate no later than upon completion of the Local Public
Improvements, as determined by the Board of Works. Furthermore, Beacon agrees to obtain any
and all other easements from any governmental entity and/or any other third parties that Beacon
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.
3.5 Tinieframe for Completion. Beacon hereby agrees to complete the Project as set
forth in the Project Plan and any other obligations Beacon may have under this Agreement by
December 31, 2027 (the "Mandatory Project Completion Date"). Beacon further agrees the total
Project will be completed in accordance with the Project Plan attached hereto as Exhibit B.
Notwithstanding any provision of this Agreement to the contrary, Beacon's failure to complete the
Project or any other obligations Beacon may have under this Agreement by the Mandatory Project
Completion Dates will constitute a default under this Agreement without any requirement of notice
of or an opportunity to cure such failure.
3.6 ReRorting Obligations. On or before June 30 and December 31 of each year until
substantial completion of the Project, Beacon shall submit to the Commission a report, in the
format set forth as Exhibit E, demonstrating Beacon's good -faith compliance with the terms of
this Agreement. The report shall include the following information and documents: (i) a status
report of the construction completed to date, (ii) an update on the project schedule, and (iii) an
itemized accounting generally identifying the Private Investment to date.
3.7 Submission of Plans and Specifications for Project. The Parties acknowledge and
agree that, prior to the Effective Date, Beacon delivered a complete set of plans and specifications
for the Project to the City's Executive Director of the Department of Community Investment who
has approved of the same. Having met this standard requirement, the expenditure of the Funding
Amount may occur.
3.8 Costs and Expenses of Construction of Project. Beacon 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 (including legal, architectural, and engineering
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.
3.9 Specifications for Local Public Improvements. Beacon will be responsible for the
preparation of all bid specifications related to the Local Public Improvements, and Beacon will
pay all costs and expenses of such preparation, provided, however, that if the Commission pays
any costs or expenses of such preparation, then the amount paid by the Commission will be
deducted from the Funding Amount. Beacon will submit all bid specifications related to the Local
Public Improvements to the City of South Bend Engineering Department (the "Engineering
Department"). The Engineering Department may approve or disapprove said bid specifications
for the Project in its sole discretion and may request revisions or amendments to be made to the
same. The Commission shall not be required to expend the Funding Amount unless the
Engineering Department has approved all bid specifications.
3.10 Non -Interference. Beacon hereby agrees to use commercially reasonable efforts to
minimize disruption for those living and working near the Project Property during construction of
the Project.
3.11 Insurance. Beacon shall purchase and maintain comprehensive insurance coverage
as is appropriate for the work being performed by it with respect to the Project. Beacon 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, Beacon shall maintain insurance
in the kinds and for at least the minimum amounts as described in Exhibit F attached hereto and
the Commission and the City shall be named as additional insureds on such policies that provide
coverage for Parcel 018-1014-0540, where the Local Public Improvements will be completed (but
not on any worker's compensation policies).
3.12 Information. Beacon agrees to provide any and all due diligence items with respect
to the Local Public Improvements reasonably requested by the Commission.
SECTION 4. COMMISSION'S DEVELOPMENT OBLIGATIONS.
4.1 Generally. The Parties acknowledge and agree that Beacon'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.
4.2 Comnletion 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 Beacon, as may be modified
due to unforeseen circumstances and delays.
(b) Before any work on the Local Public Improvements will commence, (a) the
Commission will have received satisfactory plans and specifications for the Project and
responded in accordance with Section 3.7 ("Submission of Plans and Specifications for
Project") of this Agreement, and (b) the Engineering Department will have received
satisfactory bid specifications for the Local Public Improvements and approved the same
in accordance with Section 3.9 ("Specifications for Local Public Improvements") of this
Agreement.
(c) 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.
(d) It is the intent of the Parties that the Commission will cover the full amount
of the costs associated with the Local Public Improvements. Therefore, in the event the
costs associated with the Local Public Improvements are in excess of the Funding Amount,
the Commission will be responsible for funding the excess amount, and the Parties shall
amend this Agreement as necessary to permit timely completion of the Local Public
Improvements by the Commission, or an agent of the Commission.
SECTION 5. GROUND LEASE SURRENDER AND ACCEPTANCE.
5.1 Generally. The Commission and Memorial entered into a certain Amended and
Restated Agreement for the Lease and Development of Real Property within the South Bend
Central Development Area dated January 23, 1998 (the "Central Development Area Agreement").
As part of the Central Development Area Agreement, the Commission and Memorial also entered
into a Ground Lease (the "Ground Lease"), a copy of which is attached hereto as Exhibit G, for
the property located at I I I W. Jefferson Blvd., South Bend, Indiana 46601 (the "Premises").
Memorial desires to surrender the Ground Lease to the Commission and the Commission is willing
to accept the surrender on the terms set forth in this Section 5.
5.2 Surrender. Subject to the terms of this Agreement, Memorial hereby surrenders to
the Commission and its successors and assigns, as of April 23rd, 2024 (the "Surrender Date"), the
Ground Lease and the term and estate granted by the Ground Lease, together with the Premises,
so that the Ground Lease shall be wholly extinguished, and the term of the Ground Lease shall
expire on the Surrender Date.
5.3 Cancellation Payment. The Commission recognizes the benefit to be derived by
the City by regaining the full use of the Premises, including more than 170 parking spaces, and in
consideration of the surrender by Memorial and of the acceptance thereof by the Commission,
following the execution and delivery of this Agreement, the Commission shall pay the sum of Four
Million Dollars ($4,000,000.00) to Memorial on the Surrender Date.
5.4 Mutual Release. The Commission, for itself and its successors and assigns, accepts
Memorial's surrender of the Premises as of the Surrender Date and, in consideration of the
surrender by Memorial and of the acceptance thereof by the Commission, the Commission and
Memorial hereby mutually release each other, and their respective heirs, executors, administrators,
successors, and assigns, from any and all claims, obligations, liabilities, demands, actions, and
causes of action of each and every kind and nature whatsoever arising out of, resulting from, or
relating to the Ground Lease prior to, on or after the Surrender Date.
5.5 Representations and Warranties. The Commission and Memorial each hereby
represent and warrant, as of the date hereof and the Surrender Date, that: (i) the person executing
this Agreement on its behalf is duly authorized to execute and deliver this Agreement on its behalf;
and (ii) the execution, delivery and performance of this Agreement has been duly authorized by
all necessary action and does not violate its formation or management documents, or any contract,
agreement, commitment, order, judgment, or decree to which it is a party or to which it or the
Premises are bound. Memorial hereby represents and warrants, as of the date hereof and the
Surrender Date, that it has not done, or suffered anything to be done, whereby the Premises have
been encumbered in any way whatsoever, nor shall the Premises be in any way encumbered on the
Surrender Date.
5.6 Indemnification. The Commission and Memorial each agree to indemnify, hold
harmless, and defend the other from and against any and all claims, liabilities, losses, costs,
damages, and expenses, including reasonable attorneys' fees, in the enforcement of this indemnity
asserted against or suffered by the other party arising out of, related to, or caused by the breach or
in accuracy of any covenant, obligation, warranty or representation under this Agreement by such
party.
5.7 Further Assurances. The Commission and Memorial shall promptly execute,
acknowledge, and deliver to the other such further instruments and take such further actions as
may be reasonably required to carry out and effectuate the intent and purpose of this Section 5.
5.8 Teml2oraEy Lease A Bement. Upon execution of this Agreement, the Commission
and Memorial shall enter into a Lease Agreement, in the form attached hereto as Exhibit_19 for
the continued operation of Memorial's physical therapy services and the Beacon Health & Fitness
Center until such time as the facilities are able to relocate. This Temporary Lease Agreement shall
end no later than December 31, 2025 for the Health & Fitness Center and December 31, 2025 for
the physical therapy services offices.
5.9 Assignment of Existing Leases. Memorial shall assign to the Commission any
leases it holds for the Premises, delivering to the Commission any rent deposits effective March
29, 2024, and effective on March 29, 2024, the Commission shall have all the rights and
responsibilities of Lessor to the Premises.
SECTION 6. PARKING AGREEMENT.
6.1 Generally. The Parties acknowledge and agree that concurrently with the execution
of this Agreement, Beacon, Memorial, and the Commission shall enter into or cause the execution
of a certain Real Estate Purchase Agreement with Great Lakes Capital Development LLC ("GLC")
for the transfer of certain real property near the Beacon Property (the "Parcels") from Beacon and
Memorial to Great Lakes Capital ("GLC") for the construction of other new development
("Purchase Agreement"). In furtherance of such other new development, concurrently with the
execution of this Agreement, the Commission shall enter into or cause the execution of a certain
Development Agreement with GLC, under which the Commission will commit to constructing
certain local public improvements on the Parcels, to include the development of new parking
garages near the Beacon Property ("GLC Development Agreement"). Provided the transfer of
Parcels to GLC takes place as set forth in this Section 6, in consideration of the other terms and
conditions set forth in this Agreement, the Commission agrees to commit to reserving certain
parking spaces for Beacon's future use at no charge, as set forth below. In the event the Purchase
Agreement and GLC Development Agreement described in this Section 6 are not executed, this
Section shall become null and void.
6.2 Spaces. Three Hundred (300) parking spaces will be reserved annually for the use
of Beacon for its employees Monday through Friday for the hours of 6:00 A.M. — 8:00 P.M. The
City reserves the right to use any and all spaces reserved for Beacon when not in use by Beacon
staff.
6.3 Term. The initial term of this parking agreement shall commence on the date of
substantial completion of the garages and continue for a term of twenty-five (25) years, with a
series of two (2) consecutive options to renew, for twenty-five (25) years each. To exercise an
option, Beacon must not then be in default. The option will be deemed exercised unless Beacon
provides written notice to the Commission not less than one (1) year before the end of the current
term. Five (5) years prior to completion of the third term, if exercised by Beacon, the City and
Beacon will work collaboratively to find an equivalent arrangement to serve the parking needs of
Beacon.
6.4 Annual Report. Beacon shall report in writing to the Commission before December
31 of each calendar year the number of spaces being utilized along with its good faith estimation
of its parking needs for the following calendar year. The Commission and Beacon will use this
information to determine if the number of reserved spaces should be altered. Any alteration of the
allocation of reserved spaces for Beacon must be mutually agreed to, in writing, by the
Commission and Beacon.
SECTION 7. COOPERATION IN THE EVENT OF LEGAL CHALLENGE.
7.1 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.
In no event shall the Commission be required to bear the fees and costs of the Beacon's attorneys,
and in no event shall Beacon 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 7.1, which shall survive such invalidation, nullification, or
setting aside.
SECTION 8. DEFAULTS; DISPUTE RESOLUTION; INTERPRETATION.
8.1 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 Parties shall proceed to resolve the default in
accordance with Section 8.2 ("Dispute Resolution"). If the default is cured within thirty (30)
days after the notice described in this Section 8.1, then no default shall exist and the noticing Party
shall take no further action.
8.2 Dispute Resolution. The Parties agree they will attempt in good faith to resolve all
claims, controversies, or disputes arising out of or relating to this Agreement or an alleged breach
of this Agreement by negotiation. 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. Therefore, if a dispute cannot be resolved by negotiation, the Parties agree
they shall next seek to resolve any disputes through mediation administered by an agreed upon
mediator. To the extent that a dispute is not settled by mediation within 180 days of the
commencement of the mediation, or such further period as the Parties shall hereafter agree in
writing, the dispute or any unresolved portion thereof shall be decided by binding arbitration in St.
Joseph County, Indiana. The procedures specified herein shall be the sole and exclusive methods
for the resolution of disputes between the parties arising out of or relating to this Agreement.
However, a Parry may seek a temporary restraining order, a preliminary injunction or other
preliminary judicial relief if in its judgment, such action is necessary to avoid irreparable damage.
Despite such action, the Parties shall continue to participate in good faith in the procedures
specified here. All applicable statutes of limitation shall be tolled while the procedures specified
here are pending. The Parties will take any action required to effectuate such tolling.
8.3 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.
8.4 Interpretation, Governing Law. This Agreement was negotiated by the Parties at
arm's length and each of the Parties hereto has reviewed the Agreement after the opportunity to
consult with independent legal counsel. Neither Party shall be deemed the drafter of the
Agreement, and neither Party shall maintain that the language in this Agreement shall be construed
against any signatory hereto. The captions and Section numbers of this Agreement are for
convenience and in no way define or limit the scope or intent of the Sections of this Agreement.
Further, notwithstanding anything to the contrary herein, no person other than the Parties hereto,
and their permitted assigns, shall have any right of action under this Agreement. This Agreement
is governed by and construed in accordance with the laws of the State of Indiana.
SECTION 9. NO AGENCY JOINT VENTURE OR PARTNERSHIP; CONFLICT OF
INTEREST; INDEMNITY.
9.1 No Agency, Joint Venture or Partnership. The Parties acknowledge and agree that:
(a) The Project is a private development;
(b) None of the Commission, the Board of Works, Beacon, or Memorial 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, Beacon,
and/or Memorial 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/ Board of Works and
Beacon/Memorial, 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/Board of Works and the Beacon/Memorial.
9.2 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 Beacon or Memorial, 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 Beacon or Memorial, or their
successors and assigns, or on any obligations under the terms of this Agreement. No partner,
member, employee, or agent of the Beacon or Memorial or the successors of them shall be
personally liable to the Commission under this Agreement.
9.3 Indemnity. Beacon and Memorial agree 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.
SECTION 10. MISCELLANEOUS.
10.1 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
matters 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.
10.2 Equal Em la went Opportuni1y. Beacon, for itself and its successors and assigns,
agrees that during the construction of the Project:
(a) Beacon will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. Beacon agrees to post
in conspicuous places, available to employees and applicants for employment, notices
setting forth the provisions of this nondiscrimination clause; and
(b) Beacon will state, in all solicitations or advertisements for employees
placed by or on behalf of Beacon, that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, or national origin.
10.3 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.
10.4 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.
10.5 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
any 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.
10.6 Notices and Uemands. 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.
Beacon: Beacon Health System, Inc.
3245 Health Drive
Granger, Indiana 46530
Attn: Chief Financial Officer
Memorial: Memorial Hospital of South Bend, Inc.
615 N. Michigan Street
South Bend, Indiana 46601
Attn: President
Commission: South Bend Redevelopment Commission
1400S 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
1200S County -City Building
227 W. Jefferson Blvd.
South Bend, IN 46601
Attn: Corporation Counsel
10.7 No Third -Party Beneficiaries. 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.
10.8 Tax Advice. Each Party acknowledges and agrees that it is responsible for its own
federal, state, and/or local tax obligations or consequences that may arise from or relate to this
Agreement. No Party is relying on any representation that may be made another regarding the tax
consequences of the matters contemplated herein and shall hold the other Parties harmless from
any adverse tax consequences resulting from any and all provisions of this Agreement.
10.9 Assignment. Beacon's rights under this Agreement shall be personal to Beacon
and shall not run with the land. Beacon may not assign its rights or obligations under this
Agreement to any third parry without obtaining the Commission's prior written consent to such
assignment, which the Commission may give or withhold in its sole discretion, provided such
consent is not unreasonably withheld. In the event Beacon seeks the Commission's consent to any
such assignment, Beacon 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).
10.10 AuthoKily. 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.
10.11 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.
10.12 Exhibits. All exhibits described herein and attached hereto are incorporated into
this Agreement by reference.
10.13 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.
10.14 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
Troy IV r, Vice President
ATTEST:
Vivian Sallie, Secretary
BEACON HEALTH SYSTEM, INC.
IpAfflz � M -
Jeffrey P. Costello, Chief Financial Officer
MEMORIAL HOSPITAL OF SOUTH BEND, INC.
Larry A. Tracy, Jr., President
EXHIBIT A
Description of Beacon Property
Key Number: 018-1011-0400
Legal Description: Lot I Ex pt sold for Street Memorial Hospital 2nd Replat cont 11.46Ac
17/18Split#21068 3-28-2016 10/11NP#4437 07-02-2010 Fixed in 17/18
Commonly Known As: 621 Memorial Dr.
Key Number: 018-1014-0540
Legal Description: Lots 187 thru 189 & N 37.5' Lot 190 & Lots 195 thru 198 & E/W & N/S vac
alleys & S 1/2 vac Navarre St N & adj O P South Bend
Commonly Known As: 531 N. Main St.
EXHIBIT B
Project Plan
Beacon will complete the construction of a development known as the "Memorial Patient Tower"
and consisting of each of the following elements:
• Construct Two Hundred Thirty -Two Million ($232,000,000.00) patient tower, inclusive
of major enabling projects that support the patient tower.
• Complete Project by December 31, 2027, as evidenced by a certificate of occupancy and
any other necessary licenses, certificates, or permits.
Beacon will complete the work contemplated herein in accordance with the terms and conditions
of this Agreement and in compliance with all applicable laws and regulations.
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:
The work to be performed shall include furnishing of all labor, services, materials,
insurance, and equipment to provide for the demolition of the structure located at
531 N. Main St., South Bend, Indiana 46601, which is comprised of a 6-story office
building. The work shall include the demolition and removal of the building,
basement, and foundation, as well as the demolition and removal of site
improvements. Work will also include the construction of a surface parking lot on
the site of demolished building, the facilitation of a connection from the newly
constructed parking lot to the existing courtyard of Memorial Hospital, vacation of
a section of Navarre Street, and construction of a mutually acceptable pedestrian
crosswalk improvement on Main Street to access the Memorial campus
Any and all costs associated with improvements not explicitly described this Exhibit and not
approved pursuant to Section 3.10 ("Specifications for Local Public Improvements") are the sole
responsibility of Beacon. In the event the costs associated with the Local Public Improvements
exceed the Funding Amount, the Commission will be responsible for funding the excess amount,
and the Parties shall amend this Agreement as necessary to permit timely completion of the Local
Public Improvements by the Commission or an agent of the Commission.
Local Public Improvements shall be constructed on the following parcels:
Key Number. 018-1014-0540
Legal Description: Lots 187 thru 189 & N 37.5' Lot 190 & Lots 195 thru 198 &
E/W & N/S vac alleys & S1/2 vac Navarre St N & adj O P South Bend
Cornnionly Known As: 531 N. Main St.
Key Number: 018-1014-0546
Legal Description: 36' N. Side Lot 194 Original Plat of South Bend
Commonly Known As: 524 N. Lafayette Blvd.
Key Number: 018-1014-0547
Legal Description: 16 Ft N. Side 113 Ft. W. End Lot 193 30 Ft. S. Side Ex 20x52
Ft. SE Corner Lot 194 Original Plat of South Bend
Conunonly Known As: 506 N. Lafayette Blvd.
Key Number: 018-1014-0548
Leal Description: 50 Ft. S. Side 113 Ft. W. End Lot 193 OP South Bend
Commonly Known As: 502 N. Lafayette Blvd.
Kew Number: 018-1014-0549
Legal Description: 52 Ft. E. End Lot 193 20x52 Ft. SE Corner Lot 194 OP South
Bend
Commonly Known As: 215 W. Marion St.
Vacated Navarre Street as part of parcels Key Nos. 018-1014-540 (S'/z) and 018-
1011-0400 (N %)
EXHIBIT D
Form of Easement
GRANT OF TEMPORARY EASEMENT
THIS INDENTURE, made as of the � 0 of �ll:���� , 2024 (the "Effective
Date"), by and between Beacon Health System, Inc., 615 N. Michigan St., South Bend, Indiana
46601 (the "Grantor"), and the South Bend Redevelopment Commission, governing body of the
City of South Bend Department of Redevelopment, 1400S 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 March 28 (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:
BEACON HEALTH SYSTEM, INC.
Printed: Jeffrey P. Costello
Its: Chief Financial Officer
1
STATE OF l lGk--O C�-- )
SS:
COUNTY OF ph
Before me, the undersigned, a Notary Public in and for said State, personally appeared
Jeffrey P. Costello, to me known to be the Chief Financial Officer 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. th
WITNESS my hand and Notarial Seal this p� day of MarCK , 20A.
1r r�r
LORA A. TATUM 4 I' - l trj
Notary Public - Seal
St Joseph County - State of Indiana
Commission Number NP0644776,Notary Public
My Commission Expires May 29, 2029
Residing in V cLL cL�A c�- Co.,,,, S+ - jk9st
My Commission Expires: Ma
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. / s / Danielle Campbell Weiss
This instrument was prepared by Danielle Campbell Weiss, Assistant City Attorney, City of South Bend, Indiana, Department of Law, 227 W.
Jefferson Boulevard, Suite 1200S, South Bend, IN 46601.
EXHIBIT 1
Description of Property
Local Public Improvements shall be performed on the following parcels:
Key Number: 018-1014-0540
Legal Description: Lots 187 thru 189 & N 37.5' Lot 190 & Lots 195 thru 198 &
E/W & N/S vac alleys & S1/2 vac Navarre St N & adj O P South Bend
Commonly Known As: 531 N. Main St.
Key Number: 018-1014-0546
Legal Description: 36' N. Side Lot 194 Original Plat of South Bend
Commonly Known As: 524 N. Lafayette Blvd.
Key Number: 018-1014-0547
Legal Description: 16 Ft N. Side 113 Ft. W. End Lot 193 30 Ft. S. Side Ex 20x52
Ft. SE Corner Lot 194 Original Plat of South Bend
Commogly Known As: 506 N. Lafayette Blvd.
Key Number:_ 018-1014-0548
Legal Description: 50 Ft. S. Side 113 Ft. W. End Lot 193 OP South Bend
Commonly Known As: 502 N. Lafayette Blvd.
Key Number: 018-1014-0549
Legal Description: 52 Ft. E. End Lot 193 20x52 Ft. SE Corner Lot 194 OP South
Bend
Commonly Known As: 215 W. Marion St.
Vacated Navarre Street as part of parcels Key Nos. 018-1014-540 (S '/2) and 018-
1011-0400 (N 1/2)
EXHIBIT E
Form of Report to Commission
City of South Bend
Department of Community Investn-ient
Answer the below questions and return to the Department of Community Investment.
Project Information
Project Name:
Address:
Construction Completed to Date:
Project Schedule Update:
Itemized Accounting of Private Investment to Date:
Name:
Address:
Position:
Email:
Signature:
Date:
EXHIBIT F
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. $5,000,000.00 Each Occurrence
b. $5,000,000.00 Annual Aggregate Products
and Completed Operation
2. Property Damage
a. $5,000,000.00 Each Occurrence
b. $5,000,000.00 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
EXHIBIT G
Ground Lease
FOR: MERIDIAN ?TILE CORP
_ 9504642
co
AMENDED AND RESTATED W
�t AGREEMENT FOR THE LEASE AND DEVELOPMENT "g
i OF REAL PROPERTY WITHIN
THE SOUTH BEND CENTRAL DEVELOPMENT AREAO-N�C2- .�
z BY AND BETWEEN
THE SOUTH BEND REDEVELOPMENT COMMISSION N
AND MEMORIAL HOSPITAL OF SOUTH BEND, INC�
THIS AGREEMENT, made as of the ,2r 141
day of (kNLkh'TN
1998, by and among the CITY OF SOUTH BEND, DEPARTMENT 'OF
REDEVELOPMENT, acting by and through the SOUTH BEND REDEVELOPMENT
COMMISSION, (COMMISSION) and Memorial Hospital of South Bend,
Inc.,(DEVELOPER)
WITNESSETH:
WHEREAS, to further the objectives of the Redevelopment of
Cities and Towns Act of 1953, as amended, being I.C. 36-7-14-1, et
seq.:
1. The Commission has investigated areas within the
corporate boundaries of the City of South Bend and has prepared and
approved the South Bend Central Development Area Development Plan
(Plan) to develop the area known as the South Bend Central
Development Area. A copy of the Plan and amendments thereto have
been recorded in the St. Joseph County Recorder's Office.
2. The Commission and Developer desire to cooperate in the
development of certain real property situated in the South Bend
Central Development Area according to the Plan and this agreement.
3. The Commission believes that developing the said real
property according to this agreement is in the best interest of the
health, safety and welfare of the City and its residents and
complies with the public purposes and provisions of the Act and
applicable federal, state and local laws under which the
development has been undertaken and is being assisted.
4. Commission and Developer, by Memorial Health System, Inc.,
previously entered into an Agreement for the Lease and Development
of Real Property Within the South Bend Central Development Area
dated as of December 20, 1996, (the "Prior Agreement") . Commission
and Developer now desire to supplement and amend the Prior
Agreement, and wish to have this Agreement restate, replace and
supersede the Prior Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual promises and
obligations in this agreement the Commission and Developer agree as
follows:
SECTION I. DEFINITIONS.
61
"Agreement" means this development agreement between the
Commission, and Developer.
"Bonds" means lease rental revenue bonds or revenue bonds
issued by the City of South Bend in an amount sufficient to fund
the design, construction and acquisition of the Parking Garage and
Public Plaza.
"Common Area Charge" means an annual payment to be paid
by the Developer to the Commission in consideration of the physical
support and enhancement to the Memorial -Leighton HealthoPlex
provided by the Parking Garage and Public Plaza.
"Construction Manager" means a firm qualified and
experienced in the field of construction management which shall be
selected by Developer and Commission to coordinate the construction
of the MEPT Building and the Memorial Building on the surface of
the underground level of the Parking Garage and attendant issues.
"Lease Agreement" means the Ground Lease between the
Commission and Developer for the lease of the Leased Site,
substantially in the form attached as Exhibit A, hereto.
"Leased Site" means that portion of Property more
particularly described at Exhibit B, hereto, to be leased by the
Commission to the Developer pursuant to the Lease Agreement,
including the entirety of the surface of the concrete deck which is
the roof of the Parking Garage contained within the perimeter of
the Leased Site and all air rights above that surface, but
excluding any portion of the Property extending below the surface
of the Parking Garage roof deck which is used as a parking garage.
"Memorial -Leighton Health®Plex" means an approximately
75,000 square foot multi -use building to be constructed by
Developer on the Leased Site.
"MEPT" means Riggs & Company, a division of Riggs Bank
N.A., as trustee of the Multi -Employer Property Trust, a Trust
organized under 12 C.F.R. Section 9.18.
"MEPT Site" means that portion of the Property to be
leased to MEPT, more particularly described at Exhibit E, hereto.
"Office Building" means a multi -tenant office building
containing not less than 60,000 square feet of leasable Class A
office space to be constructed by MEPT upon the MEPT Site.
"Parking Garage" means the parking structure, including
appurtenant access drives and ramps, for motor vehicles to be
constructed by the Commission below ground level at the Property
and above ground level on a portion of the Property, as depicted at
2
i
Exhibits C-1 and C-2, hereto. The Parking Garage shall include
approximately 215 underground parking spaces and approximately 429
above -ground parking spaces.
"Property" means the real property located in South Bend,
St. Joseph County, bounded generally by Jefferson Street to the
south, Michigan Street to the east, Washington Street to the north
and Main Street to the west, more particularly described at Exhibit
D.
"Public Plaza" means the improved Public Plaza Site.
"Public Plaza Site" means that portion of the Property
depicted at Exhibit C-3 hereto, upon which the Commission is to
construct the Public Plaza.
"Urban Design" means Urban Design Group, Inc., 4850 Sears
Tower, Chicago, IL 60606.
"Walker" means Walker Parking Consultants/Engineers,
Inc., 7330 Shadeland Station, Suite 100, Indianapolis, Indiana
46256.
SECTION II. LEASE
A. LcazQ _ AQ :eemen . Subject to all of the terms of this
Agreement and of the Lease Agreement, the Commission agrees to
lease to the Developer and the Developer agrees to lease from the
Commission the Leased Site for a period of fifty (50) years and
extended terms under Options to Extend. All as set forth in the
Lease Agreement.
B. Title Tnsurance. The Commission shall procure from St.
Joseph Title Corp. and furnish the Developer a lessee's title
insurance policy for the Leased Site which insures the Developer's
leasehold interest in a sum equal to prepaid lease rental provided
in the Lease Agreement, and subject only to those exceptions agreed
upon by the Commission and Developer.
C. .Qommission's
Title.
The Commission's title to the
Property shall
be, and
the Commission hereby
represents and
warrants to the
Developer
that the same is, good,
merchantable and
marketable fee
simple
title, free and clear
of any liens,
encumbrances,
except as provided in Section
II.B. of this
Agreement.
SECTION III. PROJECT DEVELOPMENT
9
A. ArcrsitVct &a-d, Encileers - The Commission shall retain, at
its sole expense, Walker to design, prepare plans and
specifications for, and to oversee the bidding and construction of,
the Parking Garage and the structural slab upon which the Public
Plaza is to be constructed. The contract between the Commission
and Walker shall require Walker to subcontract with Matthews
Purucker,Anella, Inc. to perform architectural design services
relating to the Parking Garage facades, stair and elevator towers
and the interior of the Parking Garage retail space.
The Commission shall retain Urban Design to design,
prepare plans and specifications for, and to oversee the bidding
and construction of, the Public Plaza.
The Developer shall retain, at its sole expense, Urban
Design to design, prepare plans and specifications for, and to
oversee the bidding and construction of, the Memorial -Leighton
Health*flex. Developer shall be responsible, either through Urban
Design or such other architect of Developer's choosing, for the
design and construction of the surface of the Parking Garage
contained within the perimeter of the Leased Site, as the same
shall serve as the ground floor of the Memorial -Leighton
HealthePlex. The Developer shall bear all costs associated with
the increased design and construction costs to allow the portion of
the surface of the Parking Garage contained within the perimeter of
the Leased Site also to serve as the ground floor of the Memorial -
Leighton HealthePlex.
The agreement between the Developer and Urban Design for
architectural services shall require Urban Design, and any
engineering consultant to Urban Design under such contract, to work
cooperatively and coordinate its work program with Walker and to
provide Walker with any and all information as may be required by
Walker to allow Walker to design that portion of the Parking Garage
that will serve as the foundation and support of the Memorial -
Leighton HealthePlex. The agreement between the Commission and
Walker for architectural services shall require Walker to work
cooperatively and coordinate its work program with Urban Design in
the design of that portion of the Parking Garage that will serve as
the foundation and support of the Memorial -Leighton HealthePlex.
Prior to the execution of any agreement with Walker by the
Commission, Walker shall provide verification of and policy
information concerning professional liability insurance coverage,
the amount of such coverage and the name and address of the
insurance carrier, all to the satisfaction of the Developer.
B. Survey - The Commission shall procure from Lang Feeney
& Associates a boundary survey of the Property and a boundary
survey of the Leased Site and any additional surveys as may be
necessary for the development contemplated by this Agreement. The
boundary survey of the Leased Site will be secured after the
finalization by Developer of its final design for the Memorial-
Leighton HealthoPlex. To the extent the surveys may be upgraded
in order to allow standard title exceptions to be waived, the
Developer may request and pay for such upgrade.
SECTION IV. CONSTRUCTION - COMMISSION
A. Parking Ca agp
1. Design. The Commission shall construct the Parking
Garage at the Property. The Parking Garage shall be substantially
of the same size, scope and nature as that specified at Exhibit F,
hereto, and as designed by Walker pursuant to its proposal to the
Commission dated December 6, 1996, shall conform to all plans an
specifications approved by the Design Development Administrator for
the City of South Bend and the Developer, and shall include the
following minimum features:
a. approximately 680 total parking spaces, a minimum of
120 of which shall be made available for lease by Developer,
subject to Section IV.A.3, below.
b. minimum clearance of 812".
C. a minimum of three (3) elevators, one (1) of which
shall enter the Memorial -Leighton Health*Plex from the Parking
Garage, the cost of the construction of such elevator shall be
borne solely by Developer; one (1) of which shall enter the
Trammell Crow Building from the Parking Garage, the cost of
the construction of such elevator shall be borne solely by
Trammell Crow; and at least one (1) of which shall enter at
and above grade levels of the Parking Garage from the Parking
Garage, the cost of the construction of such elevator shall be
borne solely by the Commission.
d. approximately 11,000 square feet of leasable retail
space at grade level in the Parking Garage, facing Michigan
Street.
e. complementary in design and exterior materials with
the design and exterior materials of the Memorial -Leighton
HealthoPlex and MEPT Building.
f. designed and maintained to assure the structural
integrity of the support it provides for the Memorial -Leighton
HealthOPlex. Neither the Commission nor its designee may take
any action or make any change to the Parking Garage that
compromises the integrity of the structural support provided
to the Memorial -Leighton HealthoPlex.
5
2. Operations.
a. The Parking Garage shall be available for use by
patrons of the Memorial -Leighton Health*flex from 6:00 A.M. -
9:00 P.M., Monday - Friday; 8:00 A.M. - 6:00 P.M., Saturday;
10:00 A.M. - 6:00 P.M. Sunday, or such other hours as mutually
agreed upon by the Developer and Commission.
b. The Commission shall maintain the Parking Garage and
keep it clean from trash, defacing marks and other debris.
C. The Commission shall provide a minimum of one (1)
employee to oversee the daily operation of the Parking Garage
at all times during which the Parking Garage is available for
use, as set forth above. Should the Developer and the
Commission agree there is a need to post security personnel or
take other measures to ensure the safety of persons and
property within the Parking Garage, the Commission and
Developer shall share in the cost of the provision of such
security.
d. The Developer may institute a validation procedure
with the cooperation of the Commission to facilitate the use
of the Parking Garage by Developer's patrons.
e. The Commission shall not permit or suffer the
presence of any food vending machines or any other manner of
food vending or food sales in the Parking Garage, but not
including the retail space and not including special events
conducted at the Parking Garage by or with the approval of the
Commission, upon notification in advance to the Developer.
f. The Commission shall not permit or suffer the
presence of any signage in the Parking Garage, but not
including in, outside of or at the retail space, without the
prior approval of the Developer.
3. Lease of Parking Spaces. Subject to the minimum parking
requirements of the Developer set forth at Section IV.A.1.a., the
Developer and MEPT shall be given the first opportunity to lease
parking spaces in the Parking Garage, prior to the opening of the
Parking Garage for use by the public. Thereafter, the Developer
and MEPT may lease additional parking spaces, to the extent the
same re available. To the extent there are no additional par xng
spaces available or lease at the time requested by Developer,
Developer shall have the first right to lease any parking spaces as
they come available, subject only to the equivalent right of MEPT.
As between MEPT and the Developer, the Commission shall give
preferqpce..ir leasin to the request that is best in terms of the
development of the South Bend Central Development Area, which
decision shall be within the sole discretion of the Commission.
0
B. Public Plaza. The Commission shall construct the Public
Plaza at the Public Plaza Site. The Public Plaza shall be
substantially of the same size, scope and nature as that specified
at Exhibit C-3, hereto, and as designed by Urban Design pursuant to
its proposal to the Commission, dated December 20, 1996, shall
conform to all plans and specifications approved by the Design
Development Administrator for the City of South Bend and the
Developer, and shall include the following minimum features:
1. complementary in design and materials with the design and
exterior materials of the Memorial -Leighton HealthoPlex and MEPT
Building,
2. sidewalks surrounding the Property on its south, east and
western boundaries.
C. Time for Construction. Construction of the Parking Garage
on the Property shall begin on or before June 30, 1997.
Construction of that portion of the Parking Garage located under
the Leased site and necessary to allow the construction of the
Memorial -Leighton HealthoPlex to commence shall be completed not
later than November 15, 1997. Construction of the Parking Garage
shall be completed on or before March 1, 1999. The obligation of
the Commission to construct the Parking Garage is expressly
conditioned upon the issuance of the Bonds.
Construction of the Public Plaza on the Public Plaza Site
shall commence on or before July 31, 1998, and shall be
substantially completed not later than August 1, 1999. The
obligation of the Commission to construct the Public Plaza is
expressly conditioned upon the issuance of the Bonds.
In the event the Bonds are not issued by June 1, 1997, the
Commission or the Developer may terminate this Agreement and the
Lease and any other agreements with the City of South Bend, Indiana
pertaining to this project and Developer shall receive a full
refund of the Deposit, plus any interest accruing thereon, and any
other deposits which it has made, after which Developer may develop
its project in a different location.
SECTION V. CONSTRUCTION - DEVELOPER
A. NatuZe of_Tmprovements. The Developer shall construct
the Memorial Leighton HealthOPlex. The construction of the
Memorial -Leighton HealthePlex on the Leased Site shall be
substantially of the same size, scope and nature as that specified
at Exhibit G, hereto, and as designed by Urban Design pursuant to
its proposal to the Developer, dated November 27, 1996, and shall
substantially conform to all plans and specifications approved by
the Design Development Administrator for the City of South Bend.
The Memorial -Leighton HealthOPlex shall include the following
minimum features:
space
1. approximately 75,000 square foot leasable/useable floor
2. a minimum height of four (4) stories
3. a mix of uses that includes health and fitness facilities
available to the public on a membership basis, community education,
clinical treatment programs, orthopedic therapy, physical therapy,
educational instruction, and office uses
4. complementary in design and exterior materials with the
design and exterior materials of the MEPT Building and Parking
Garage
5. the design and installation of landscaping and site
improvements within the perimeter of the Leased Site
6. the installation of signage, as permitted pursuant to
policies and guidelines jointly established by the Developer, the
Commission and MEPT.
B. Time for Construction. Construction of the Memorial -
Leighton Health4Plex on the Leased Site shall begin within one (1)
month of the date on which that portion of the Parking Garage
located under the Leased Site and necessary to allow the
construction of the Memorial -Leighton Health Plex to commence is
completed. Construction of the Memorial -Leighton HealthOPlex shall
be completed on or before February 28, 2000.
C. Building Trades Labor - Developer shall construct the
Memorial -Leighton HealthOPlex primarily through a contractor or
contractors signatory to a collective bargaining agreement with the
St. Joseph County Building Trades.
SECTION VI. TIME FOR CERTAIN OTHER ACTIONS.
A. Time for Suomi tt i ng _pl 3n.c to DAPJ an neyal npmenfi
T The Developer shall submit preliminary construction
plans for the Project to the Design Development Administrator for
the City of South Bend for review and approval by February 1, 1997,
and shall secure the approval of the Design Development
Administrator to the final site plan for the Memorial -Leighton
Health4Plex prior to the commencement of construction.
B. P,rocrg.,as_1Aepoorts. From the date of this Agreement until
the Commission issues the Certificate of Completion, the Developer
shall make progress reports in such detail, at such times and in
such manner as the Commission may reasonably request, and at such
time as the Developer may desire. It is the expressed intention of
the Developer to work closely and cooperatively with the Commission
and its agents in the design of the Memorial -Leighton HealthaPlex
and during construction thereof, but the parties agree that speed
and accuracy during construction is essential and Developer must be
free to rely on timely approvals or proposed changes by the
Commission or its agents.
C. Legal Status of Developer. Prior to the execution of the
Lease Agreement, the Developer has provided to the Commission of
Developer's legal status as an Indiana non-profit corporation.
SECTION VII. COORDINATION OF CONTRACTORS
The Commission shall retain Construction Manager to perform
construction management services in order to coordinate the timing
and logistics of the construction of the Parking Garage, the
Memorial -Leighton HealthOPlex, and the MEPT Building. All costs
associated with construction management services relating
exclusively to the construction of the Parking Garage shall be
borne exclusively by the Commission. All costs associated with
construction management services relating exclusively to the
construction of the Memorial -Leighton Health®Plex shall be borne
exclusively by the Developer. All costs associated with
construction management services relating exclusively to the
construction of the MEPT Building shall be borne exclusively by
MEPT. All costs associated with the services performed by
Construction Manager, but not including any services relating
exclusively to the construction of the MEPT Building or to
exclusively to the Memorial -Leighton Health*flex, shall be split
equally among the Commission, Developer and MEPT: Provided,
however, that in the event MEPT fails or refuses to share in the
cost of the services provided by Construction Manager, the
Commission shall not be liable for and shall not pay any portion of
MEPT's obligation to Construction Manager under this Agreement or
separate agreement with Construction Manager, and in that event,
the Developer shall bear MEPT's share of this cost. The
Commission, Developer and MEPT shall enter into an escrow agreement
to fund Construction Manager's services. Such agreement shall
require that the Developer and MEPT advance their respective shares
of the contract between the Commission and Construction Manager
prior to the execution of the contract for construction management
services and that payments from the escrow be allocated equally
among the deposits: Provided, however, that the Commission shall
deposit its respective share of the cost into the escrow only upon
the issuance of the Bonds and, prior to that time, the escrowed
deposits of the Developer and MEPT will cover the Commission's
payment obligations, subject to the rights of reimbursement and
set-off upon the deposit of the Commission's deposit.
E
SECTION VIII. FAITHFUL PERFORMANCE GUARANTEE
A. Amount. At or prior to the time of executing this
Agreement, the Developer delivered to the Commission a faithful
performance guarantee in a form satisfactory to the Commission in
the amount of ten percent of the rental set forth at Section II.A.,
above (Deposit) as security for performing its obligations under
this Agreement. The Commission shall deposit the Deposit in an
interest bearing account.
B. Retentionby.smmj.y s� ion. If before the issuance of a
Certification of Completion as provided in Section IX. of this
Agreement, the Developer defaults in its obligations under this
Agreement and fails to cure such defect as this Agreement provides,
then the Commission may exercise any and all rights it may have
pursuant to the Deposit without any reduction, offset, or
recoupment, as liquidated damages. Exercise of these rights shall
be in addition to any other remedies and shall not waive any other
right under this Agreement or other laws.
C. Return to Developer. Upon issuing the Certificate of
Completion upon completion of redevelopment as required by this
Agreement, the Commission shall return the Deposit to the
Developer, along with any interest that may have accrued thereon.
SECTION IX. COMPLETION.
A. Qertificate of Completion. Promptly after the Developer
completes construction of the Memorial -Leighton HealthePlex under
this Agreement and in substantial accordance with the plans and
specifications approved by the Commission, the Commission shall
furnish the Developer with a Certificate of Completion. This
Certificate shall be a conclusive determination of satisfaction and
termination of all covenants, requirements, obligations and the
like in this Agreement. After the issuance of the Certificate of
Completion by the Commission, neither the Commission nor any other
party shall thereafter have or be entitled to exercise any rights,
remedies, or controls otherwise available with respect to the
Leased Site or any easement or other portion of the said Leased
Site as a result of a default in or breach of any provisions of
this Agreement by the Developer or any successor in interest or
assign.
B. Form of Certification. Each Certification provided for in
this Section shall be in such form as to be recordable in the St.
Joseph County Recorder's Office.
C. R!_fusal or Failure tQ Rrauide Q-e rti,f1�rltion. If the
10
Commission refuses or fails to provide Certification within thirty
(30) days after the Developer's written request, the Commission
shall provide the Developer with a written statement indicating how
the Developer failed to comply with the provisions of this
Agreement and giving the measures necessary, in the Commission's
opinion, for the Developer to take in order to obtain such
certification.
SECTION X. COMMON AREA CHARGE
Developer shall pay to the Commission on December 1, 1998
and each December 1 thereafter, a Common Area Charge during the
term of the Lease Agreement, and any extension thereof, as follows:
1998
$ 7,500
1999
$ 7,500
2000
$ 32,000
2001
$ 55,000
2002
$ 80,000
2003
$ 92,000
2004
$108,000
2005
$125,000
2006
$138,000
2007 and thereafter
$150,000
Provided, however, that the amount of any real property taxes paid
by the Developer in any calendar year in respect of the Property
and/or the improvements thereon shall serve to reduce by a
corresponding amount the amount of the Common Area Charge paid by
the Developer to the Commission in such calendar year.
SECTION XI. EASEMENTS
A. The Commission shall, by
separate instrument, grant to Developer, its successors and
assigns, for the benefit of the Leased Site and as appurtenant
thereto, the perpetual right, privilege and easement, subject to
termination as provided herein, to use those portions of the
Property which are designated as the Memorial -Leighton HealthePlex
Foundation Easements for the construction, maintenance, repair,
replacement and operation therein of underground foundations,
footings, piles, caissons, columns and building supports for the
Memorial -Leighton Health Plex: Provided, however, that the design
and construction of said facilities must be consistent with and not
compromise the structural integrity of the Parking Garage, and that
the design of said facilities being subject to the approval of the
Commission: Provided, further, that the increased cost to the
construction of that portion of the Parking Garage constructed
within the Memorial -Leighton HealthQPlex Foundation Easement
11
necessitated by its service as the footings, foundations and
support for the Memorial -Leighton health®flex shall be borne by
Developer.
B.
Systems. The Commission shall, by separate instrument, grant to
Developer, its successors and assigns, for the benefit of the
Leased Site and as appurtenant thereto, the perpetual right,
privilege and easement, subject to termination as provided herein,
to construct, use, maintain, repair, and replace, in, under and on
that portion of the Property located under the Leased Site, at such
locations determined by Urban Design, provided that such locations
are determined by Walker not to interfere or unreasonably
complicate or increase the cost of the operation, use and
maintenance of the Parking Garage, underground pipes, wires,
conduits, heating and ventilation systems, elevator machine room
and pits, electrical equipment vault or room, insulation on the
underside of the slab under the Leased Site, service entrance, and
other similar facilities, appliances or equipment to supply the
Developer building with heat, air conditioning, electricity, gas,
water, storm and sanitary sewer and telephone services and other
utility services for the proper and convenient use and operation
thereof (together with the right of ingress and egress for the
installation, maintenance, repair and replacement thereof):
Provided, however, that Developer shall observe, fulfill and comply
with certain protocol to be established by the Commission
concerning notification and the manner and timing of such
activities.
C. Elevator Easement. The Commission shall, by separate
instrument, grant to Developer, its successors and assigns, for the
benefit of the Leased Site and as appurtenant thereto, the
perpetual right, privilege and easement, subject to termination as
provided herein, to use those portions of the Property which are
designated as the Memorial -Leighton HealthOPlex Elevator Easement
Areas for the construction, maintenance, repair, replacement and
operation therein of an elevator providing access between the below
grade level of the Parking Garage below the Leased Site and the
Leased Site and the ground and upper levels of the Memorial -
Leighton HealthePlex: Provided, however, that the design and
construction of the elevator and supporting and related
machinery and equipment shall be the responsibility of, and the
cost of the same shall be borne by, Developer.
D. d Parking C-arage Eaacment-T h e
Commission shall, by separate instrument, grant to Developer, its
successors and assigns, for the benefit of the Leased Site and as
appurtenant thereto, the perpetual right, privilege and easement,
subject to termination as provided herein, of ingress and egress
in, over and across the Public Plaza and Parking Garage to permit
access to the Memorial -Leighton HealthePlex and Michigan Street,
Jefferson Boulevard and Main Street.
12
E. Rublic ALt and MQnument Sian Ea5ement The Commission
shall, by separate instrument, grant to Developer, its successors
and assigns, for the benefit of the Leased Site and as appurtenant
thereto, the perpetual right, privilege and easement, subject to
termination as provided herein, for the installation, maintenance,
repair, and replacement of a monument sign advertising the identify
of and tenants within the Memorial -Leighton HealthePlex and public
art in the form of sculpture or such other form as approved by the
Commission: Provided, however, that the design, installation and
maintenance of such signs and public art shall be the
responsibility of, and the cost of the same shall be borne by,
Developer.
SECTION XII.
The Commission agrees with Developer that approximately
11,000 square feet of floor space for retail purposes will be made
available for rent to the public by the Commission in the Parking
Garage at the eastern perimeter of the Parking Garage.
For purposes of this Agreement, the term "retail
purposes" shall mean any business which offers tangible
merchandise for sale to the consuming public, including but not
limited to: books, cameras, candies and nuts, small electrical
appliances, apparel, shoes, sporting goods, hardware, toys,
household accessories, drugs, toiletries and sundries, and shall
also include restaurants, coffee shops, and other similar services
and establishments, but shall not those business uses listed at
Exhibit H, hereto.
SECTION XIII. MANAGEMENT OF PUBLIC PLAZA
The Commission shall operate and maintain the Public Plaza in
a manner deemed by the Commission to be appropriate and in the best
interests of the development. The Commission shall have the right
(i) to establish, modify and enforce reasonable rules and
regulations with respect to the Public Plaza; (ii) to enter into,
modify and terminate easements, but not including any easement
granted to Developer under Section XI.D, herein, and other
agreements pertaining to the use and maintenance of the Public
Plaza; (iii) to close all or any portion of the Public Plaza to
such extent as may, in the opinion of the Commission, be necessary
to prevent a dedication thereof or the accrual of any rights to any
person or to the public therein beyond that deemed appropriate by
the Commission, but not to exclude Developer and its licensees,
invitees, and agents; (iv) to close temporarily any portion of the
Public Plaza; (v) to do and perform such other acts in and to said
areas and improvements as, in the exercise of its sound discretion,
the Commission shall deem advisable, but in all cases consistent
with the easements granted to Developer.
13
SECTION XIV. INSURANCE
1. Developer shall purchase and maintain such insurance or
require its construction manager or contractors to provide such
insurance as will protect Developer from claims set forth below
which may arise out of or result from the Developer's construction
of the Memorial --Leighton Health*Plea, whether such activities be
by the Developer, its contractors or subcontractors or by anyone
directly employed by any of them, or by anyone for whose acts any
of them may be liable;
a. claims under workers' compensation, disability
benefit and other similar employee benefit acts which are
applicable;
b. claims for damages because of bodily injury,
occupational sickness or disease or death of the Developer's
or Developer's contractors employees;
C. claims for damages because of bodily injury,
sickness or disease or death of any person other than
Developer's or Developer's contractors' employees;
d. claims for damages insured by usual personal injury
liability coverage which are sustained (1) by a person as a
result of an offense directly or indirectly related to
employment of such person by Developer or Developer's
contractors, or (2) by another person;
e. claims for damages, other than to the Memorial -
Leighton HealthePlex itself, because of injury to or
destruction of tangible property, including loss of use
resulting therefrom;
f. claims for damages because of bodily injury, death
of a person or property damage arising out of ownership,
maintenance or use of a motor vehicle; and
g. claims involving contractual liability insurance.
h. umbrella excess liability coverage
Liability insurance shall include all major divisions of
coverage and be on a comprehensive basis.
2. The insurance required by Section XI.A.1. shall be
written for not less than the limits of liability specified in the
Lease Agreement, whether written on an occurrence or claims -made
basis, shall be maintained without interruption from the date of
14
SECTION XV. PROHIBITIONS AGAINST ASSIGNMENT
A. RepreSentat;.ons� as to Development. The Developer
represents and agrees that it has entered into this Agreement for
the purpose of development of the Leased Site and none other. The
Developer further recognizes that:
1. in view of the importance of the development of the
Leased Site to the general welfare of the City,
2. the substantial financial and other public assistance
that has been made available by law and by the federal and local
governments for the purpose of making the development of the Leased
Site and of the Property possible, and
3. the fact that a transfer in ownership of the Developer is
for practical purposes an assignment by Developer of its
obligations under this Agreement;
the qualifications and identity of the Developer and its
stockholders or partners are of particular concern to the
Commission. The Developer further recognizes that it is due to
such qualifications and identity that the Commission is entering
into this Agreement with the Developer, and in so doing is further
willing to accept and rely on the obligations of the Developer for
the faithful performance of all undertakings and covenants.
B. Prohibition Against Transfer of Interest. The Developer
agrees for itself and any successor in interest that the Developer
shall not change the identity of the parties in control of the
Developer whether by increased capitalization, merger with another
corporation, change in corporate structure or other amendments or
otherwise prior to the issuance of a Certificate of Completion
under Section IX, herein, without first having obtained prior
written approval from the Commission. The Developer and the
parties signing the Agreement on behalf of the Developer represent
that they have the authority of all of its existing stockholders to
agree to this provision on their behalf and to bind them with
respect to it.
C. Prohibition Against A!$s-gn ment _g2f Aoreement. The
Developer represents and agrees for itself, its successors and
assigns, that the Developer has not made or will not make:
1. any total or partial assignment of this Agreement; or
2. any contract or agreement for any total or partial
assignment of this Agreement
without prior written approval of the Commission.
17
D. The
Commission may require as conditions precedent to any approval of
any assignment any and all information regarding the
qualifications, financial responsibility, legal status, experience,
background, and any and all other information it deems necessary or
desirable in order to achieve and safeguard the purposes of this
Agreement.
E. No Traja5fer of Develover'-sAbsent specific
written agreement by the Commission to the contrary, no transfer or
approval by the Commission thereof shall relieve the Developer or
any other party bound in any way by the Agreement or otherwise with
respect to the construction of the improvements and completion of
the Memorial. -Leighton Health*Plex from any of its obligations with
respect thereto.
F. Tnformation aa tQ Trterest. The Developer agrees that
during the period between execution of this Agreement and the
completion of construction of the Memorial -Leighton Health®flex,
the Developer will promptly notify the Commission of any act or
transaction involving or resulting in any change in the ownership
of the Developer of which it or any of its officers have been
notified or otherwise have knowledge or information.
SECTION XVI. REMEDIES.
A. In General. Except as otherwise provided in this
Agreement, upon any default in or breach of the Agreement by any
party or any successor to such party, such party (or successor),
upon written notice from the other, shall proceed immediately to
cure or remedy such default or breach within thirty (30) days after
receiving the notice. If action is not taken or not diligently
pursued, or the default or breach is not cured or remedied within
a reasonable time, the aggrieved party may institute proceedings
necessary or desirable in its opinion to cure and remedy the
default or breach, including, but not limited to, proceedings to
compel specific performance by the party in default or breach of
its obligations.
B. t r r to o
Agreement by commigsiQn.
If the Lease Agreement is not executed by the Commission in
the manner and condition and by the date provided herein, and any
such failure is not cured within forty-five (45) days after the
date of written demand by the Developer, this Agreement shall be
terminated at the option of the Developer, by written notice to the
Commission, and, except for return of the Deposit, the Commission
and the Developer shall have no further rights against or liability
to the others under this Agreement.
18
In the event that:
1. prior to the execution of the Lease Agreement by the
Commission and in violation of this Agreement:
a. the Developer (or successor in interest) assigns or
attempts to assign the Agreement or any rights therein or the
Leased Site, or
b. there is any change in the ownership of the
Developer or with respect to the identity of the parties
holding ownership interests in the Developer or the degree
thereof, which the Commission reasonably has refused to
approve; or
2. the Developer does not submit reasonably satisfactory
architectural and site plans, or evidence of necessary sufficient
financing for the Memorial -Leighton HealthOPlex, in satisfactory
form and in the manner and by the dates respectively provided in
the Agreement therefor; or
3. the Developer does not pay the Lease Rental and execute
the Lease Agreement pursuant to this Agreement,
then this Agreement and any rights of the Developer in this
Agreement and the Leased Site shall, at the option of the
Commission, without need of the consent of the Developer, be
terminated.
In the event of any default or failure referred to in
subdivisions a., b., or c. of this Section XVI.C., which remains
uncured by the Developer after notice and opportunity to cure have
been provided by the Commission, the Deposit shall be retained by
the Commission as liquidated damages and as its property without
any deduction, offset, or recoupment whatsoever. Neither the
Developer (or successor in interest) nor the Commission shall have
any further rights against or liability to the other under this
Agreement.
D. Terminati-On of the _L.p$e_Acireement Lpon.h.dpp?eoLTLc_.af .FzYg�nt
Subsequent -to Exeri;t;on of_Lease_Ag eement.. If subsequent to the
execution of the Lease Agreement by the Commission and Developer
prior to completion of the construction of the Memorial -Leighton
HealthOPlex as certified by the Commission:
1. the Developer (or successor in interest) shall default in
or violate its obligations with respect to the construction of the
Memorial -Leighton HealthOPlex, including the nature and the dates
for the beginning and completion thereof, or shall abandon or
19
substantially suspend construction work, and any such default,
violation, abandonment, or suspension shall not be cured, ended, or
remedied within three (3) months (six (6) months, if the default is
with respect to the date of completion of the construction) after
written demand by the Commission so to do; or
2. the Developer (or successor in interest) shall place
thereon any encumbrance or lien unauthorized by the Agreement, or
shall cause any levy or attachment to be made, or any materialmen's
or mechanics' lien, or any other unauthorized encumbrance or lien
to attach, and such taxes or assessments are not paid, or the
encumbrance or lien removed or discharged or provision reasonably
satisfactory to the Commission made for such payment, removal, or
discharge, within ninety (90) days after written demand by the
Commission so to do; or
3. there is, in violation of this Agreement, any transfer of
any part of the Leased Site, or any change in the ownership of the
Developer, or with respect to the identity of the parties in
control of the Developer or the degree thereof as provided in
Section XV, and such violation shall not be cured within sixty (60)
days after written demand by the Commission to the Developer,
then the Commission shall have the right to re-enter and take
possession of the Leased Site and to terminate the Lease Agreement
and revest in the Commission the estate leased by the Lease
Agreement to the Developer. The intent of this provision, together
with other provisions of the Agreement, is that the lease of the
Leased Site to the Developer shall be made upon, and that the Lease
Agreement shall contain, a condition subsequent to the effect that
the event of any default, failure, violation, or other action or
inaction by the Developer specified in this paragraph D the
Developer's failure to remedy, end, or abrogate such default,
failure, violation, or other action or inaction, within the period
and in the manner stated in such subdivisions, the Commission at
its option may declare a termination in favor of the Commission all
the rights and interest in and to the Leased Site leased under the
Lease Agreement to the Developer, and that all such rights and
interests of the Developer, and any assigns or successors in
interest to and in the Leased Site, shall revert to the Commission.
E.
Upon the termination of Developer's interest in the Leased Site as
provided in Section XVI.D., above, the Commission shall use its
best efforts to relet the Leased Site or part thereof as soon and
in such manner as the Commission shall find feasible and consistent
with the objectives of the South Bend Central Development Plan to
a qualified and responsible party or parties (as determined by the
Commission) who will assume the obligation of making or completing
the construction of the Memorial -Leighton Healthe Plex in its stead
or of another project as shall be satisfactory to the Commission
and in accordance with the uses specified for such Property or part
thereof in the Plan. Upon such reletting of the Leased Site, the
W
proceeds shall be applied:
1. First, to reimburse the Commission, on its own behalf or
on behalf of the City, for all costs and expenses incurred by the
Commission, including but not limited to:
a. salaries of personnel, in connection with the
recapture, management, and reletting of the Leased Site or
part thereof, but less any income derived by the Commission
from the Leased Site or part thereof in connection with
recapture such management or reletting;
b. all taxes, assessments, water and sewer charges, and
Common Area Charges with respect to the Leased Site and/or
Memorial -Leighton HealthoPlex or part thereof;
C. any payments made or needed to be made to discharge
any encumbrances or liens existing on the Leased Site and/or
Memorial -Leighton Health®Plex or part thereof at the time of
revesting of title in the Commission or to discharge or
prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, defaults, or acts of
the Developer, its successors or transferees;
d. any expenditures made or obligations incurred in
making or completing the construction or any part thereof on
the Leased Site and/or Memorial -Leighton HealthePlex or part
thereof;
e. and any amounts otherwise owing the Commission by
the Developer and its successor or transferee; and
2. Second, to reimburse the Developer, its successor or
transferee, up to the amount equal to the sum of the Lease Rental
paid by it for the Leased Site (or allocable to the part thereof)
and the cash actually invested by the Developer in construction on
the Leased Site or part thereof.
Any balance remaining after such reimbursements shall be retained
by the Commission as its property.
F. Other Riubts and Remedies of ,o mission: NQ Waiver by
Delay. The Commission shall have the right to institute such
actions or proceedings as either may deem desirable for
effectuating the purposes of this Section XVI.F. This would
include the right to execute and record or file among the public
land records in the office in which the Lease Agreement is recorded
a written declaration of the termination of all the right, title,
and interest of the Developer, and its successors in interest and
assigns, in the Leased Site, and the full vesting of title in the
Commission. Any delay by the Commission in instituting or
prosecuting any such actions or proceedings or otherwise asserting
21
its rights under this Section XVI.F. shall not operate as a waiver
of such rights or to deprive it of or limit such rights in any way.
This provision intends that the Commission should not be
constrained, so as to avoid the risk of being deprived of or
limited in the exercise of the remedy provided in this paragraph
because of concepts of waiver, laches, or otherwise, to exercise
such remedy at a time when it may still hope otherwise to resolve
the problems created by the default involved; nor shall any waiver
in fact made by the Commission with respect to any specific default
by the Developer under this paragraph be considered or treated as
a waiver of the Commission's rights to any other defaults by the
Developer under this paragraph or with respect to the particular
default except to the extent specifically waived in writing.
G. RiQThe rights and remedies
of the parties to this Agreement, whether provided by law or by the
Agreement, shall be cumulative. The exercise by either party of
any one or more of such remedies shall not preclude the exercise,
at the same or different times, of any other such remedies for the
same default or breach or of any of its remedies for any other
default or breach by the other party. No waiver made by either
such party with respect to the performance, manner or time thereof,
any obligation of the other party, or any condition to its own
obligation under the Agreement shall be considered a waiver of any
rights of the party making the waiver with respect to that
particular obligation of the other party or condition to its own
obligation beyond those expressly waived in writing and to the
extent thereof, or a waiver of any respect in regard to any other
rights of the party making the waiver or any other obligations of
the other party.
H. Party in Position of Surety With Rez-ect to Obligations.
The Developer, for itself, its successors and assigns, and for all
other persons who are or who shall become liable upon or subject to
any obligation or burden under this Agreement, whether by express
or implied assumption or otherwise, hereby waives, to the fullest
extent permitted by law, any and all claims or defenses otherwise
available on the ground of its or their being or having become a
person in the position of a surety, whether real, personal, or
otherwise or whether by agreement or operation of law, including,
without limitation on the generality -of the foregoing, any and all
claims and defenses based upon extension of time, indulgence, or
modification of terms of contract.
SECTION XVII. Limitation upon Encumbrance of Property and Leased
Site.
Prior to the Commission's issuing a Certificate of Completion,
the Developer shall not:
1. engage in any transaction creating any encumbrance upon
22
the Property or Leased Site, whether by express agreement or
operation of law; or
2. allow any encumbrance to be made on the Property or
Leased Site.
SECTION XVIII. ENFORCED DELAY IN PERFORMANCE FOR CAUSES BEYOND
CONTROL OF PARTY.
For the purposes of any of the provisions of the Agreement,
neither the Commission nor the Developer, as the case may be, nor
any successors in interest, shall be considered in breach of or in
default in its obligations with respect to the preparation of the
Property for the construction, or the beginning and completion of
construction, or progress in respect thereto, in the event of
enforced delay in the performance of such obligations due to
unforeseeable causes beyond its control and without its fault or
negligence. These include, but are not limited to, acts of God,
acts of the public enemy, acts of the federal government, acts of
the other party, fires, floods, epidemics, quarantine restrictions,
strikes, freight embargoes, and unusually severe weather, or delays
of subcontractors due to such causes. The purpose and intent of
this provision is that in the event of the occurrence of any such
enforced delay, the time or times for performance of the
obligations of the Commission with respect to the preparation of
the Leased Site for development or of the Developer with respect to
construction of the Memorial -Leighton HealthaPlex, or the
Commission with respect to construction of the Parking Garage
and/or Public Plaza, as the case may be, shall be extended for the
period of the enforced delays as determined by the Commission:
Provided, That the party seeking the benefit of the provisions of
this paragraph shall, within ten (10) days after the beginning of
the enforced delay, have first notified the other party thereof in
writing and of the cause or causes thereof, and shall have
requested an extension for the period of the enforced delay.
SECTION XIX. NOTICES; APPROVALS
A. Notices. A notice, demand, or other communication under
this Agreement by either party to the other shall be sufficiently
given or delivered if it is dispatched by registered or certified
mail, postage prepaid, return receipt requested, or delivered
personally, and
1. in the case of the Developer, is addressed to or
delivered personally to the Developer as follows:
Memorial Hospital of South Bend, Inc.
615 North Michigan Street
South Bend, IN 46601
23
ATTN: Philip A. Newbold, President
with a copy to:
Barnes & Thornburg
100 North Michigan Street
South Bend, IN 46601; and
2. in the case of the Commission is addressed to or
delivered personally in care of the Commission, 1200 County -City
Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601,
or at such other address with respect to either such party as that
party may from time to time designate in writing and forward to the
other as provided in this Section.
B. Approvals. Unless written notification to the contrary
is given, as provided above, Ann E. Kolata shall be and hereby is
authorized to act as the representative of the Commission for
purposes of the issuance of any approvals required under this
Agreement. Unless written notification to the contrary is given,
as provided above, Ted Foti or Philip A. Newbold shall be and
hereby are authorized to act as the representative of the Developer
for purposes of the issuance of any approvals required under this
Agreement.
SECTION XX. MISCELLANEOUS.
A. flQnflict Qf Interest; Commissjon Representatives Not
Indiyiual y Liable. No member, official, or employee of the
Commission shall have any personal interest, direct or indirect, in
the Agreement, nor shall any such member, official, or employee
participate in any decision relating to the Agreement which affects
his personal interests or the interests of any corporation,
partnership, or association in which he/she is, directly or
indirectly, interested. No member, official, or employee of the
Commission 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 successor or assign or on any obligations under the terms of the
Agreement.
B. No- Partnership. Any intention to create a joint venture
or partnership relationship between the parties is hereby expressly
disclaimed,
C.Exhibits-The Commission and
Developer agree, upon receipt of a request from any other, to
execute additional instruments as may be necessary or desirable to
evidence the easements granted pursuant to Section XI, or the
termination of said easements, or the any other agreements made
hereunder, in accordance with the terms and provisions thereof.
24
The Commission and Developer further agree that the Exhibits
referenced in this Agreement shall be attached hereto and
incorporated herein as the same become available, and shall be
initialed by the persons referred to at Section XVIII.B., herein,
to evidence the parties' approval of the same.
D. Recordation. A Memorandum of this Agreement shall be
recorded in the office of the St. Joseph County Recorder
immediately subsequent to its execution.
E. Er1,xal Emj2loyment Qpp_QL.L3 njtV_. The Developer, for itself
and its successors and assigns, agrees that during the construction
of the Project:
1. 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.
2. 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.
F. Provisions Not Me -ged Wi:Lh _Luse. None of the provisions
of the Agreement are intended to or shall be merged by reason of
any Lease transferring an interest in the Leased Site from the
Commission to the Developer or any successor in interest, and any
such Lease Agreement shall not be deemed to affect or impair the
provisions and covenants of the Agreement.
G. Titles of Articles and _SQ_ct_i_on_s. Any titles of the
several parts, sections, and paragraphs of the Agreement are
inserted for convenience or reference only and shall be disregarded
in construing or interpreting any of its provisions.
25
IN WITNESS WHEREOF, the Parties hereby execute this Agreement
on the date first written above.
ATT
Paula N. Auburn, Secretary
26
CITY OF SOUTH BEND
DEPART OF REDEVELOPMENT
d
Robert W. Hunt, President
MEMORIAL HOSPITAL OF SOUTH BEND,
INC.
By:
Philip A. wbold
Its: President and C.E.O.
STATE OF INDIANA )
)SS-.
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public in and for said
County and State, personally appeared the City of South Bend,
Department of Redevelopment by Robert W. Hunt , President, and
Paula N. Auburn - , Secretary, and acknowledged the execution of
the foregoing Agreement.
IN WITNESS WHEREOF, I have hereunto subscribed my n
affixed my official seal on � 1998.1.
r •~ �47
My Commission Expires:
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Residing in St. Joseph- 0o1
CHERYL K PHIPPS
NOTARY PUBLIC STATE OF INDIANA
ST. JOSEPH CCONTY
MY COMMISSION EXP. JAN. 7,1999
IN
Before me, the undersigned, a Notary Public in and for said
County and State, personally appeared Memorial Hospital of South
Bend, Inc., by its President and C.E.O., Philip A. Newbold, and
acknowledged the execution of the foregoing Agreement.
IN WITNESS WHEREOF,
affixed my official seal
My Commission Expires:
ctober 4. 2001
I have hereunto subscribed my name. .
on January 23 1998
B uce R. Bancroft Notary Publid:'
Residing in St. Joseph County,
.;ram-. .. ;• ` ,;
This document prepared by Anne E. Bruneel, Chief Assistant City
Attorney, 1400 County -City Building, South Bend, Indiana 46601.
LEASE\MEMORIAL.3
27
EXHIBIT A
THIS LEASE is entered into effective as of the day of
, 1998, by and between MEMORIAL HOSPITAL OF SOUTH
BEND, INC.("Memorial") and the CITY OF SOUTH BEND, INDIANA,
DEPARTMENT OF REDEVELOPMENT, acting by and through the SOUTH BEND
REDEVELOPMENT COMMISSION (the "Commission").
WHEREAS, the Commission, acting pursuant to its
redevelopment authority under Ind. Code §36-7-14-1 Q.t s^Q., has
created the South Bend Central Development Area (the "Project
Area") for the purpose of carrying out in such Project Area a
redevelopment project and has adopted the South Bend Central
Development Area Development Plan (the "Plan") to guide such
redevelopment project. A copy of the Plan is recorded in the
office of the Recorder of St. Joseph County, Indiana;
WHEREAS, the Commission is the owner of certain real estate
more particularly described at Exhibit A hereto and hereinafter
referred to as the Lease Parcel; and
WHEREAS, Memorial desires to lease the Leased Premises,
which is a part of the Lease Parcel, from the Commission; and
WHEREAS, Memorial and the Commission desire to set forth
their agreement with respect to the leasing of the Lease Parcel
and certain other matters affecting the Lease Parcel.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, Memorial and the Commission agree as follows:
Terms defined in the Recitals shall have the meanings set
forth therein. The following terms, when used in this Lease with
initial capital letters, have the following respective meanings:
"Basic Rent" has the meaning set forth in Section 4.01.
"City" means the City of South Bend, Indiana.
"Commencement Date" has the meaning set forth in Section
3.01.
"Condemnation Proceeds" means the total aggregate award,
including any award for the Commission's fee simple title or
Memorial's leasehold estate, in the event of a total taking or
Constructive Total Taking of the Leased Premises.
"Constructive Total Taking" means a taking of such scope
that the remaining portion of the Leased Premises and
Improvements after restoration thereof is not suitable to achieve
the objectives of Memorial.
"Development Agreement" means the Amended and Restated
Agreement for the Lease and Development of Real Property Within
the South Bend Central Development Area by and between the South
Bend Redevelopment Commission and Memorial Hospital of South
Bend, Inc., dated
"Environmental Laws" means federal, state and local laws and
implementing regulations, effective on or after the date of
execution of this Lease, relating to pollution or protection of
the environment, including laws or regulations relating to
emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances, wastes or materials into the environment
(including, without limitation, ambient air, surface water,
ground water or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances, wastes or materials.
Such laws shall include, but not be limited to, the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. §9601, B seer. the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. §3251 &L seer., the Clean Air
Act, as amended 42 U.S.C. §1657, pt qjaQ.j the Federal Water
Pollution Control Act, as amended, 33 U.S.C. §466 iat -=., and
Indiana Code, Title 13 - Environment, as amended.
"Improvements" means all buildings, structures, landscaping,
driveways, walkways, parking lots, paved surfaces and other
improvements which are to be located or constructed on the Lease
Parcel as provided in this Lease.
"Lease Parcel" has the meaning set forth in Exhibit A.
"Leased Premises" has the meaning set forth in Exhibit A.
"Mortgage" or "Mortgage Loan" means both so-called permanent
loans and interim building or construction loans, and all
advances thereunder, relating to and secured by a mortgage lien
upon the Commission's leasehold interest in the Leased Premises,
or any part thereof, permitted under this Lease; and also shall
refer to and include security agreements, financing statements
and any other documentation evidencing such liens and
encumbrances.
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"Mortgagee" means the mortgagee or any assignee of the
mortgagee under any Mortgage Loan.
"Plans" means preliminary construction plans prepared by or
for Memorial in sufficient detail to show exterior design,
structural design, exterior materials, positioning and appearance
of the Improvements to be constructed on the Lease Parcel and
landscaping plans (including a schedule of plants to be
utilized) .
"Rent" has the meaning set forth in Section 4.01.
"Taxes" means all real estate taxes, personal property
taxes, special and general assessments, sewer service charges and
other governmental impositions and charges of every kind and
nature whatsoever, extraordinary as well as ordinary, which may
be assessed, levied, or become due and payable with respect to,
or become a lien on, the Leased Premises or Improvements, or any
part thereof or appurtenance thereto.
"Term" has the meaning set forth in Article III.
"Unavoidable Delay" means and includes any delay caused by
reason of strikes, lock -outs, labor troubles, inability to
procure materials, failure of power, fire or other casualty,
"acts of God", restrictive governmental authority, riots,
insurrection, war, or the act, failure to act, or default of the
other party, or other reason beyond the subject party's
reasonable control and not avoidable by reasonable diligence.
Section 2.01. warranty of Leasehold. The Commission hereby
warrants and represents that it holds marketable title to the
Lease Parcel and subject to those matters set forth at Section
2.03 and that it has the authority to convey to Memorial the
leasehold estate hereby created.
Section 2.02. Leased Premises. The Commission hereby leases
to Memorial and Memorial hereby leases from the Commission, upon
and subject to the terms, conditions, covenants and provisions
hereof, the Leased Premises described on Exhibit B attached
hereto and made a part hereof, which is included as a part of the
Lease Parcel, including the entirety of the surface of the
concrete deck which is the roof of the Parking Garage contained
within the perimeter of the Leased Premises and all air rights
above that surface, but excluding any portion of the Leased
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Premises extending below the surface of the Parking Garage roof
deck which is used as a parking garage, and all appurtenances,
rights, privileges, interests, tenements, hereditaments and
easements in any way now or hereafter belonging or appertaining
thereto, together with any interest that the Commission may now
or hereafter have in any and all buildings, structures and
improvements (including the "Improvements") that may now or
hereafter be erected thereon (collectively referred to herein as
the "Leased Premises"). The Leased Premises may be enlarged upon
Memorial's request to allow construction and use of an elevator
and stair tower to permit additions to the Memorial -Leighton
HealthOPlex.
Section 2.03. Leasehold Title. The leasehold estate
created by this Lease and the Commission's rights hereunder are
subject to the following:
(a) The lien of all real estate taxes, all general and
special assessments and all other governmental dues, charges and
impositions not delinquent;
(b) All easements, restrictions, agreements, covenants and
other matters of record, including (without limitation), the
building and use restrictions in the South Bend Central
Development Plan as the same may be amended from time to time;
(c) All rights of the public, the State of Indiana and any
political subdivision of the State of Indiana (including without
limitation counties and municipalities) in and to that part of
the Lease Parcel which has been taken or used for highways,
streets, rights -of -way and related purposes;
(d) All applicable zoning, building and land use and other
governmental restrictions, laws, ordinances, rules and
regulations; and
(e) Bond indentures and related documents.
S _ ion .04. Covent of Quiet EnipyMent. Commission
covenants and agrees that Memorial, upon paying the Rent to be
paid by it as herein provided and upon keeping, observing and
performing all other covenants and agreements to be kept,
observed or performed by it hereunder, shall at all times during
the Term have the peaceable and quiet enjoyment and possession of
the Leased Premises, without hinderance from the Commission or
anyone claiming under the Commission, subject to matters to which
this Lease is subject as provided in the foregoing Section 2.03.
Neither the Commission nor its designee may take any action or
make any change to the Parking Garage, as defined in the
Development Agreement, or any other portion of the Lease Parcel
that compromises the integrity or in any manner affects the
structural support provided to the Memorial -Leighton HealthsPlex
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or any other portion of the Leased Premises or improvements to be
constructed thereupon.
The term of this Lease (the "Term") shall commence on
November 15, 1997, or the date of substantial completion by the
City of the structural slab which will serve as the ground floor
of the Health-Plex, whichever is later (the "Commencement Date")
and shall end on November 15, 2047, unless sooner terminated as
provided in this Lease. The Commission hereby grants Memorial a
series of four (4) consecutive irrevocable options to extend the
term of this Lease each for an additional fifty (50) years, upon
the same terms and conditions, except that the rental shall be
for the annual sum of One Dollar ($1.00). To exercise an option,
the Memorial must not then be in default. The option will be
deemed exercised with no notice or action required by Memorial
unless and until Memorial gives written notice to the Commission
not less than ninety (90) days before the end of the original
term of this Lease that it does not intend to exercise the
option.
Section 4.01. Basic Rent. Memorial shall pay to the
Commission as basic rent for the Leased Premises for the Term,
the total sum calculated as the product of the total area, in
square feet, of the surface of the Leased Premises and the rental
rate of $4.45 per square foot, the resultant product to be
endorsed hereon, payable, in advance, upon the execution of the
Lease Agreement (the "Basic Rent"). The Basic Rent shall be paid
in full in advance on the Commencement Date. Any additional
rent payments, as described in Section 4.02, below, shall be paid
as provided in Section 4.02. If the Leased Premises are
enlarged, additional rent 'shall be paid, and the amount of the
additional rent shall be calculated in the same manner as the
Basic Rent. The amount of the additional rent shall be paid upon
the execution of an addendum concerning the increase to the
Leased Premises and the amount of the additional rent shall be
endorsed thereon.
Total Rental, Initial Term: Ninety-two Thousand Eight Hundred
Eighty and 40/100 Dollars ($92,880.40)
Section 4.02. Rent Payments. The term "Rent" as used
herein shall mean and include Basic Rent and all additional sums,
my
and assignees shall use and occupy the Leased Premises for
purposes consistent with its use and operation of a multi -use
facility comprising office and health and fitness facilities
available to the public on a membership basis, community
education, physical therapy, orthopedic therapy, various clinical
related programs and classes, any other similar programs related
to the mission of Memorial, and for no other purposes without the
prior permission of the Commission, which permission the
Commission agrees not to unreasonably withhold or delay.
Section 5.0 . Signs. Memorial shall have the right to
erect and maintain on the Improvements and the Lease Parcel all
signs that it deems appropriate to the conduct of its business,
subject, however, to the provisions of the South Bend Municipal
Code and to the approval of the Design Development Administrator
of the City of South Bend. The Improvements shall be designated
and known as the Memorial -Leighton HealthePlex.
Section 5 . 03. Com 1p_i anse with Laws, _ Insurance_ Policies.
Etc- During the Term, Memorial, at its expense, shall observe
and comply with all present and future statutes, laws,
ordinances, requirements, orders, rules and regulations
(including, without limitation, the Americans With Disabilities
Act and all Environmental Laws) of all governmental authorities
and all orders, rules and regulations of the National Board of
Fire Underwriters, the Indiana Board of Fire Underwriters, or any
other body or bodies exercising similar functions, affecting the
Leased Premises, or any part thereof, or the construction of the
Improvements or the use or manner of use of the Lease Parcel and
Improvements. If compliance with any such statute, law,
ordinance, rule, regulation, order or requirement legally may be
delayed pending the prosecution of any such proceeding, Memorial
may delay such compliance until a final determination of such
proceeding.
Section 5.04. Nuisance.Covenant Againat Waste. Memorial
shall not (i) commit or permit any waste to, or (ii)cause or
permit any nuisance (public or private) to occur or exist in or
on the Leased Premises, or any part thereof.
Section 5.05. Nord -]discrimination. Memorial shall not
discriminate on the basis of race, creed, color, ancestry,
national origin, religion, handicap, sex or political affiliation
in the leasing, use or occupancy of the Lease Premises and shall
comply with all applicable federal, state and local laws and
regulations prohibiting such discrimination.
(a) Memorial covenants and agrees not to permit any
"hazardous material" to be placed, held, located or disposed of
upon, or released upon, under or at the Leased Premises, or any
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part thereof. For purposes of this Lease, "hazardous material"
means and includes any hazardous, toxic or dangerous waste,
substance or material defined as such in, or for purposes of, any
Environmental Law (excluding, however, consumer goods stored or
handled in the same form or manner as sold to a consumer). To
the extent any substance or material is regulated
("environmentally regulated material") by any federal, state or
local statute, law, ordinance, code, rule, regulation, order or
decree, now or at any time hereafter regulating, relating to or
imposing liability or standards of conduct concerning any
hazardous material, underground storage tanks or petroleum
products placed, held, located or disposed of on the Leased
Premises or Improvements, Memorial shall place, hold, locate or
dispose of such environmentally regulated material in compliance
with such applicable law: Provided, however, that nothing in
this Section 5.06 shall prohibit the storage, use and disposal at
the Leased Premises of common swimming pool chemicals available
for commercial use, provided such storage, use and disposal is
conducted in compliance with all federal, state and local laws.
(b) If Memorial has knowledge of or receives any notice of
(i) the happening of any event affecting the Leased Premises
involving the spill or discharge of any hazardous material which
is required to be reported to the Indiana Department of
Environmental Management or the United States Environmental
Protection Agency (a "Hazardous Discharge") or (ii) any
complaint, order, citation or notice with regard to air
emissions, water discharges, noise emissions or any other
environmental health or safety matter with respect to the Leased
Premises (an "Environmental Complaint") from any person or
entity, including without limitation the United States
Environmental Protection Agency, Memorial shall give immediate
notice thereof to the Commission disclosing full details of the
Hazardous Discharge or Environmental Complaint, as applicable-
(c) Memorial shall indemnify and hold the Commission
harmless from all loss, cost, claims, damages, fines, penalties,
liability and/or expense, including but not limited to reasonable
attorney's fees, incurred by any such party as a result of (i)
any failure to observe the requirements in paragraph (a) above,
(ii) an Environmental Complaint arising from any event or
circumstance occurring during the Term, or (iii) a Hazardous
Discharge occurring during the Term.
Section 6.01. Lease_ Termination Does Not Te,rmic)arp.
SuhlPaG-. In the event of the termination of this Lease from any
am
cause whatsoever (including the voluntary surrender thereof by
Lessee), and while any sublease allowed under this Lease
Agreement is in full force and effect, such termination shall not
act as a merger, and Memorial's interest as sublessor in each of
said subleases shall be deemed automatically assigned,
transferred, and conveyed to the Commission; and, from and after
such termination, the Commission (as well as any such sublessee)
shall be bound by the provisions of each of the subleases, then
in full force and effect, on the part of Memorial (as sublessor)
to be performed thereunder, and each of the sublessees shall be
deemed thereupon (and without further act) to have been turned
over or assigned by operation of law to the Commission. It is
the intention hereof to provide that the termination of this
Lease while any such sublease is in full force and effect shall
not in any way, by reason thereof, terminate such sublease or
militate against the rights of any such sublessee. The foregoing
is further subject to the right of the Commission to terminate
any sublease which is in default (notice thereof, if any
required, having been given and the time for curing such default
having expired), and to any other rights and remedies reserved to
Memorial in any such sublease, and any other rights and remedies
afforded to a lessor of real property against a defaulting lessee
by law or in equity. The Commission will, at the request of
Memorial, execute and deliver to any sublessee, or proposed
sublessee, a document reciting, in substance, that any default by
Memorial under this Lease or any termination of this Lease
thereby, or otherwise, before the expiration of the term hereof,
shall not, by reason thereof, affect the rights of such sublessee
or proposed sublessee while such sublease or proposed sublease is
in full force and effect.
Section 6,02, Each such sublease
entered into by Memorial covering any portion of the Lease Parcel
shall contain a provision therein substantially providing that in
the event the sublessee defaults in any of the provisions
thereunder on the part of sublessee to be performed, after notice
of such default and the failure to cure same by sublessee,
Memorial may, after the expiration of the notice period (if
notice is applicable), reenter that portion of the Lease Premises
subleased by summary proceedings, or otherwise have the right to
expel the sublessee; and shall further provide that the notice
period for any default shall not exceed thirty (30) days for the
nonpayment of any moneys due to Memorial and shall not exceed
sixty (60) days for the failure to perform any other provision
under such sublease on the part of sublessee to be performed,
unless the performance of such other provisions cannot reasonably
be accomplished within said sixty (60) day period, in which case
sublessee may be permitted the additional time reasonably
necessary to complete performance.
WME
Section 7.01. Paymeiat of_Taxes and Assessments. To the
extent the same are imposed, Memorial shall pay and discharge
punctually, as and when the same shall become due and payable all
Taxes which are due and payable with respect to the Lease Parcel
and the Improvements, or any part thereof, or any appurtenances
or equipment owned by or leased to Memorial thereon or therein
during any calendar year (or part thereof within the Term or in
which the Term ends), together with all interest and penalties
thereon.
Memorial shall be deemed to have complied with the covenants
of Section 7.01 if payment of Taxes shall have been made either
within any period allowed by applicable law before the same shall
become a lien upon the Lease Parcel or Improvements; or, if the
Tax constitute a lien before it is due and payable, then, before
any penalty or interest is assessed with respect thereto.
Memorial shall send to the Commission satisfactory evidence of
payment of Real Estate Taxes and any other payment hereunder if
requested to do so by Memorial in writing. Memorial reserves the
right to contest the assessment of the Leased Premises, following
the procedures set forth for such contests in Indiana law.
Section 7.02. Broration of Real Estate� fazes. Real Estate
taxes due and payable during the calendar year in which the Term
ends shall be prorated based upon the number of days within such
calendar year as shall fall within the last year of the Term.
Memorial shall pay on the date of termination of this Lease such
pro rata share of Real Estate Taxes due and payable during the
calendar year in which the Term ends.
Section 7.03. Sep,agate Assessments. Upon request of
Memorial at any time, the Commission will make application
individually, or will join in the Commission's application, and
will execute such instruments as may be necessary or appropriate
to obtain separate tax assessments for the Lease Premises and
Improvements.
Section 8.01. Pursuant to and in
accordance with the terms and conditions of the Development
Agreement, Memorial shall construct the Improvements.
Section 8.02. Incorporation of the�te;ms andCnnditi❑ns pf
the Development Agreement. The terms and conditions of the
Development Agreement are incorporated until such time as the
Certificate of Completion as defined in the Development
-10-
Agreement, is issued. Until such time, any default by Memorial
under the Development Agreement shall constitute a default under
this Lease and shall entitle the Commission to exercise any and
all rights and remedies provided in either the Development
Agreement or this Lease or both.
Maintenance and Repair by Memorial. Memorial shall at all
times during the Term, at its expense, keep and maintain or cause
to be kept and maintained the Leased Premises and Improvements in
good, clean and safe condition and repair including, without
limitation, the making of all necessary structural repairs and
replacements. The Commission shall not be required to furnish
any services or facilities or to make any improvements, repairs
or alterations in or to the Leased Premises or the Improvements
during the Term.
0 1214411, P-11 l 0 ��� Uri • + •
Section 10.01. Mechanics' Liens. Memorial shall promptly
after the filing thereof discharge of record, at Memorial's
expense, any mechanics' materialmen's or other lien, or notice of
intention to file any such lien, filed against the Leased
Premises or Improvements or any part thereof or interest therein:
Provided, however, that Memorial shall have the right to contest
the validity of any such lien in any manner permitted by law so
long as Memorial (i) shall provide to the Commission title
insurance, an indemnity, bond or other assurance or security
reasonably satisfactory to the Commission; and (ii) shall
thereafter diligently proceed to cause such lien or notice of
intention to file a lien to be removed and discharged. If
Memorial shall fail to so discharge, or to seek to discharge, any
such lien or notice of intention to file a lien, then the
Commission may, but shall not be obligated to, discharge the
same, either by paying the amount claimed to be due, or by
procuring the discharge of such lien by depositing in court a
bond for the amount claimed or in such other manner as is or may
be permitted by law, and Memorial shall reimburse and indemnify
the Commission in respect thereto.
Section 10.02. Tndemnificatinn hy Memorial. Unless
allegedly caused or alleged to be caused by the several, joint,
concurrent or comparative negligence, or sole negligence, of the
Commission Memorial shall, at its sole cost and expense,
indemnify and save harmless the Commission, against and from any
and all claims, damages, losses, fines, penalties, liability,
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costs and/or expenses (including but not limited to reasonable
attorneys' fees) arising from Memorial's possession, use or
control of the Leased Premises or Improvements or any part
thereof; (ii) any condition of the Leased Premises or
Improvements or any part thereof, (iii) any breach or default on
the part of Memorial in the performance of any covenant or
agreement on the part of Memorial to be performed pursuant to the
terms of this Lease, (iv) any willful or negligent act or
omission of Memorial, or any of its agents, contractors,
licensees, subtenants or its or their servants, employees,
customers or invitees, or (v) any accident, injury to or death of
persons or damage to property whatsoever in or 'about the Leased
Premises or Improvements or any part thereof; and in case any
claim, action or proceeding shall be brought against the
Commission by reason of any such claim, damage and/or liability,
Memorial, upon written notice from such party, shall defend such
action or proceeding with counsel acceptable to such party.
Section 10.0 . Nonliability. The Commission shall not be
responsible or liable to Memorial, or any person, firm or
corporation claiming by, through or under Memorial for, or by
reason of, (i) any injury or damage occurring during the Term to
the Improvements or any equipment or apparatus or appliances in
the Improvements, (ii) any failure or defect of water, heat,
electric light or power supply, or of any apparatus or appliance
in connection therewith, or for any injury or loss or damage to
person or property resulting therefrom, or (iii) any injury, loss
or damage to any persons or to the Leased Premises or the
Improvements, or to any property of Memorial or of any other
person, contained in or upon the Leased Premises or the
Improvements, caused by or arising or resulting from the electric
wiring, or plumbing, water, steam, sewerage, or other pipes, or
by or from any machinery or apparatus, or by or from any defect
in or leakage, bursting or breaking of any of the foregoing the
same, or by or from, any leakage, running or overflow of water or
sewerage in any part of said premises, or by or from any other
defect or other cause whatsoever, except where the same is caused
by the negligence or intentional act of the Commission.
Section 11.01. L�idbility Insurance. Memorial shall
maintain and keep in force at all time during the Term, with an
insurance company or companies licensed to do business in the
State of Indiana, selected by Memorial and acceptable to the
Commission (i) comprehensive general public liability insurance
covering any and all claims for injuries to or death of persons
or damage to property occurring in or upon the Leased Premises
and Improvements and having initial minimum levels of combined
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coverage for bodily injury (including death resulting therefrom)
and property damage, including umbrella coverage, of not less
than Fifteen Million Dollars ($15,000,000), for each occurrence
and on an annual aggregate basis and (ii) workmen's compensation
and employer's liability insurance in such amounts as shall be
required by law from time to time, but in no event less than One
Hundred Thousand Dollars ($100,000) per accident. Memorial's
comprehensive general public liability insurance shall have
extensions of coverage to include blanket contractual liability
for written and oral contracts, broad form property damage and
premises operations (including explosion, collapse and
underground coverage). In addition, Memorial shall maintain or
cause its contractor(s) or construction manager to maintain
products and completed operations coverage through the period
ending two (2) years after completion of the construction of the
Improvements. Each policy referred to in this Section 11.01
shall name the Commission as an additional insured. Such
liability insurance may be provided by a single policy or
combination of underlying policies, with the balance provided by
an excess or umbrella liability policy; provided such excess or
umbrella insurance complies with all of the other requirements of
this Lease with respect to such insurance.
Section 11.02. Property Tnsurance. During the Term,
Memorial shall keep the Improvements insured with an insurance
company licensed to do business in the State of Indiana, selected
by Memorial and acceptable to the Commission for the benefit of
Memorial and the Commission, as their respective interests may
appear, against loss or damage by fire or other casualty
(including earthquake, to the extent customary and available on
reasonable terms) covered by a customary extended coverage
endorsement, in an amount equal to one hundred percent (100%) of
the replacement cost thereof and providing for and having a
deductible in an amount not exceeding Twenty Five Thousand
Dollars ($25,000). The replacement cost of the Improvements
shall be certified by a registered architect, registered
engineer, or professional appraisal engineer selected by Memorial
and employed at the expense of Memorial at the time of completion
of the Improvements and on or before each anniversary of such
completion date thereafter during the Term: Provided, however,
that such certification shall not be required so long as such
insurance shall be maintained in an amount at least equal to the
amount specified by Memorial or before such completion date and
on or before each anniversary date thereof during the Term.
Notwithstanding the foregoing, Memorial shall at all times
maintain such insurance in an amount sufficient to meet all
co-insurance requirements under such insurance policy. The
Commission shall not carry any insurance concurrent in coverage
and contributing in the event of loss with any insurance required
to be furnished by Memorial hereunder, if the effect of such
separate insurance would be to reduce the protection or the
payment to be made under Memorial's insurance.
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Section 11.03. Proof of Insurance. Memorial shall deliver
copies of the insurance policies showing the coverages required
by this Article XI to the Commission on or before the date of
execution of this Lease, and thereafter a copy of each
replacement policy shall be provided not less than ten (10) days
prior to the expiration of the policy being replaced. Each such
policy referred to in this Article XI shall contain a provision
providing that the policy shall not be canceled, not renewed or
materially amended without thirty (30) days prior written notice
to the Commission and Memorial.
Section 11.04. Waiver of Subrogation. Memorial and the
Commission waive all rights against each other and against those
for whom the other is legally liable for all losses covered by
insurance provided under this Article XI to the extent the upper
limits of such insurance are adequate to cover such losses, and
if not adquate, then to the maximum of the policy limits, it
being the intent of this provision to allocate all risk of such
loss to such insurance: Provided, however, that this waiver
shall not be effective if it would preclude or prejudice the
right of Memorial or the Commission to recover under such
insurance policy. If the policies of insurance provided for
under this Article XI require an endorsement to provide for
continued coverage where there is a waiver of subrogation,
Memorial will request such policies to be so endorsed.
Rpntinn 11.0 . Tnsurance Proceeds. The proceeds of any and
all policies of insurance upon the Improvements maintained
pursuant to Section 11.02 remaining after any required payment to
any Mortgagee shall be used as toward the repair, reconstruction,
replacement or rebuilding of the Improvements.
The Commission, Memorial, and any Mortgagee shall cooperate
fully in collecting such insurance proceeds and will execute and
deliver any and all proofs, receipts, releases and other
instruments whatsoever as may be necessary or proper for such
purpose.
Section 11.06. General Provisions. In the event Memorial
shall fail or refuse to obtain any insurance required by this
Article XI, the Commission, in addition to any other right the
Commission may have under this Lease at law or in equity, shall
have the right to obtain such insurance. The cost of such
insurance shall constitute a debt payable by Memorial upon demand
of the Commission.
Section 12-01. u-ma Obligation to Rppair. If at any
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time during the Term the Improvements shall be destroyed or
damaged by fire or other cause, Memorial shall cause the same to
be repaired, replaced or rebuilt within a period of time which,
under all prevailing circumstances, shall be reasonable, subject
to Unavoidable Delays. In the repair or restoration of any
Improvements hereunder, Memorial will repair, replace or rebuild
the Improvements so damaged or destroyed to their condition
immediately before such damage or destruction, subject to all
these applicable laws, ordinances, or regulations of any
governmental authority affecting the same. If the insurance
proceeds recovered in respect of any such damage or destruction,
less any cost of recovery and any amounts required to be paid to
any Mortgagee, shall be insufficient to pay the entire cost of
such restoration, repair, replacement or rebuilding, Memorial
shall provide for the deficiency. In such event, the time within
which Memorial shall be required to commence and complete its
obligations hereunder shall include a reasonable time to obtain
and close the necessary commitments for equity or mortgage
financing to cover the deficiency or deficiencies.
Section 12.02. No Rent Rebate. In no event shall Basic Rent
or other charges due hereunder be rebated in the event of such
damage or destruction.
Section 13.01. `ntal Condemnation. If at any time during
the Term there shall be a total taking or a Constructive Total
Taking of the Leased Premises or any part thereof in condemnation
proceedings or by any right of eminent domain or by a conveyance
in lieu thereof, this Lease shall terminate on the date of such
taking and the Rent payable by the Commission hereunder shall be
prorated and paid to the date of such taking.
Section 13.02. PgQce„eda Qf Total Condemnation. In the
event of any such total taking or Constructive Total Taking and
the termination of this Lease, the Condemnation Proceeds shall be
paid to Memorial but shall be applied by Memorial in the
following order or priority:
(a) First, to the payment of expenses and charges,
including without limitation reasonable attorneys' fees, incurred
by Memorial in connection with such taking;
(b) Second, to any Mortgagee in the order of priority of
such Mortgages to the extent of unpaid principal amount of such
Mortgages and all accrued and unpaid interest thereon and all
costs, expenses and advances pursuant thereto and all advances
-15-
made by such Mortgagee for the benefit of the leased Premises and
the continued use and operation thereof;
(c) Third, to Memorial.
Nothing herein contained shall impair the right of Memorial
to the full award, compensation or damages payable as an award
for loss of business or for moving expenses, as long as such
award shall not reduce the amount of the award otherwise
recoverable by the Commission from the condemning authority.
Section 13.03. Partial Condemnation. In the event of a
taking that is less than a Constructive Total Taking, this Lease
shall not terminate or be affected in any way, except as provided
in Section 13.04. The Condemnation Proceeds in such event shall
be apportioned and paid, to the extent available (following any
required payments to Mortgagees), in the following order of
priority:
(a) Memorial and the Commission shall first be entitled to
their expenses and charges, including without limitation
reasonable attorneys' fees, incurred in connection with the
taking;
(b) The balance of the Condemnation Proceeds shall be
payable to Memorial for application by Memorial to the costs of
restoring, repairing, replacing or rebuilding the Improvements in
the manner then reasonably feasible as required by Section 13.04;
(c) The Condemnation Proceeds, if any, remaining after
restoration, repair, replacement or rebuilding shall be paid to
Memorial, except to the extent of an equitable portion of the
Condemnation Proceeds allocable by agreement of the Commission
and Memorial on account of any taking of title to any portion of
the Lease Parcel.
Section 13.04. Restoration. In the event of a taking that
is less than a Constructive Total Taking, Memorial shall proceed
with due diligence, subject to Unavoidable Delays, to restore,
repair, replace or rebuild the remaining portions of the
Improvements substantially the same as before the taking. If the
Condemnation Proceeds are insufficient to pay the entire cost of
such restoration, repair, replacement or rebuilding, Memorial
shall pay any such deficiency.
Section 1 .05. TemporaryCondemnation. If, at any time
during the Term, the whole or any part of the Leased Premises or
Improvements or the Commission's interest therein under this
Lease shall be taken in condemnation proceedings or by any right
of eminent domain for temporary use or occupancy, the foregoing
provisions of this Article shall not apply, and, except to the
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extent that Memorial may be prevented from so doing pursuant to
the terms of the order of the condemning authority, Memorial
shall perform and observe all of the other terms, covenants,
conditions and obligations hereof upon the part of Memorial to be
performed and observed, as though such taking had not occurred.
In the event of any such taking of the character referred to in
this Section 13.05, Memorial shall be entitled to receive the
entire amount of the Condemnation Proceeds paid for such taking,
whether paid by way of damages, rent, costs of moving or
restoration or otherwise. Upon the expiration of any such period
of temporary use or occupancy, if it be during the Term, Memorial
will, at its sole cost and expense, restore the Improvements, as
nearly as may be reasonably possible, to the condition in which
the same were immediately prior to such taking.
Section 13.06. E?.nt_Adjustment. In the event of a taking
of the character referred to in Section 13.01, this Lease shall
terminate as to the portion of the Leased Premises so taken. No
such partial taking shall affect the Rent payable hereunder.
Section 13,07. T i=ahts to Appear. Memorial, the Commission
and any Mortgagee shall have the right to participate in any
condemnation proceeding for the purpose of protecting their
rights hereunder, and in this connection, specifically and
without limitation, to introduce evidence to establish the value
of or damage to the Lease Parcel, the Leased Premises, the
Improvements or any part thereof.
Section 14.01. Restriction of the Comm,yasion Mortgages.
During the Term, the Commission shall not have the right or power
to mortgage or otherwise create any security or other liens or
encumbrances upon or affecting its leasehold interest in the
Lease Parcel or its interest in the Improvements, or any part
thereof.
In addition to any other rights that Memorial or the
Commission may have pursuant to this Lease, if the other fails or
refuses to execute, acknowledge and deliver any instrument or
instruments or to take any other action (other than an action
solely involving the payment of any sum of money) required to
effectuate provisions of this Lease within the time period
required by this Lease or, if no time period therefor is
-17-
specified in this Lease, within any reasonable time period
specified in any request from the other party, then from and
after the date fifteen (15) days after the date of delivery of a
final written demand to the other party requesting such
execution, acknowledgment and delivery or other action, the
requesting party shall be entitled to specific performance,
declaratory relief, or such other remedies at law or equity which
may be appropriate to effectuate the provisions of this Lease.
Section 15.01. Events of Default. Each of the following
events, if not remedied as hereinafter provided, shall be deemed
an "Event of Default":
(a) Memorial's failure to pay any installment of Rent
within ten (10) days of the date when the same shall be due and
payable; or
(b) Memorial's failure to perform any other covenant or
agreement herein contained on Memorial's part to be kept or
performed and the continuance of such failure for a period of
ninety (90) days after notice in writing to Memorial from the
Commission specifying the nature of such failure, and provided
the Commission shall not cure said failure as provided in Section
15.02.
Upon the occurrence of any Event of Default, the Commission
may, at its option, give to Memorial a written notice of election
to end the Term of this Lease upon a date specified in such
notice, which date shall be not less than ninety (90) days after
the date of delivery to Memorial of such notice by the
Commission. The notice shall specify, in detail, the nature of
the Event of Default claimed by the Commission, shall specify the
date on which the Term of this Lease is to be ended, and shall be
delivered as provided in Section 18.
Section 15.02. Extensions. If the Commission gives notice
at any time of a default of a nature that cannot be cured within
the ninety (90) day period provided in Section 15.01(b), then
such default shall not be deemed an Event of Default so long as
Memorial, following notice from the Commission, proceeds to cure
the default as soon as reasonably possible and continues to take
all reasonable steps necessary to complete the same within a
period of time which, under all prevailing circumstances, shall
be reasonable. In addition, no Event of Default shall be deemed
to have occurred if and so long as Memorial shall be delayed in
or prevented from curing the same within the applicable cure
period by Unavoidable Delay.
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Section 15.03. Remedies. Upon any Event of Default
pursuant to Section 15.01, or at any time thereafter so long as
the same is not cured, the Commission may, in addition to and
without prejudice to any other rights and remedies the Commission
shall have at law or in equity, (i) cure any such Event of
Default and collect the cost thereof from Memorial upon demand or
(ii) file suit in a St. Joseph County Court for damages and
eviction.
During any period of possession hereunder, the Commission,
at the Commission's option, may complete such construction,
alterations, repairs, replacements and/or decorations in the
Leased Premises as the Commission, in the Commission's reasonable
judgment, considers advisable and necessary for the purpose of
completion, leasing or reletting of the Improvements; and the
making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Memorial
from liability hereunder as aforesaid.
Failure of Memorial or the Commission to complain of any act
or omission on the part of the other party, however long the same _
may continue, shall not be deemed to be a waiver by said party of
any of its rights hereunder. No waiver by Memorial or the
Commission at any time, express or implied, of any breach of any
other provision of this Lease or a consent to any subsequent
breach of the same or any other provision. No acceptance by the
Commission of any partial payment shall constitute an accord or
satisfaction but shall only be deemed a part payment on account.
In the event that Memorial or the Commission shall be
delayed, hindered in, or prevented from the performance of any
act required hereunder by reason of Unavoidable Delay, then
performance of such act shall be excused for the period of the
Unavoidable Delay and the period for the performance of any such
act shall be extended for a period equivalent to the period of
the Unavoidable Delay.
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No notice, approval, consent or other communication
authorized or required by this Lease shall be effective unless
the same shall be deemed given when either (i) hand delivered,
with signed receipt obtained therefor, (ii) sent postage prepaid
by United States registered or certified mail, return receipt
requested, directed or addressed in each case to the other party
at its address set forth below, or such other address as either
party may designate by notice given from time to time in
accordance with this Article XVIII or (iii) sent by nationally
recognized overnight courier service with all charges prepaid or
billed to sender.
The address for notices to Memorial is:
615 North Michigan Street
South Bend, IN 46601
Attn: President
with a copy to:
Barnes & Thornburg
100 North Michigan
South Bend, IN 46601
The address for notices to the Commission is:
1200 County -City Building
South Bend, IN 46601
Attention: Director of Redevelopment
with a copy to:
South Bend City Attorney
1400 County -City Building
South Bend, IN 46601
.Sect Qj3 19,01. Either party shall, without charge, at any
time and from time to time hereafter, within ten (10) days after
written request of the other, certify by written instrument duly
executed and acknowledged to any mortgagee or purchaser, or
proposed mortgagee or proposed purchaser, or any other person,
firm or corporation specified in such request:
(a) As to whether this Lease has been supplemented or
amended, and if so, the substance and manner of such supplement
or amendment;
-20-
(b) As to the validity and force and effect of this Lease,
in accordance with its tenor as then constituted;
(c) As to the existence of any default hereunder;
(d) As to the existence of any offsets, counterclaims or
defenses thereto on the part of such other party;
(e) As to the commencement and expiration dates of the
Term;
(f) As to whether or not the Plans for the Improvements
required by Article VI have been accepted and approved by
Memorial; and
(g) As to any other matters as may reasonably be so
requested.
Any certificate referred to in this Article XIX may be
relied upon by the party requesting it and any other person, firm
or corporation to whom the same may be exhibited or delivered,
and the contents of such certificate shall be binding on the
party executing same.
PQrfo=ance. Memorial shall be
entitled to specific performance to enforce the provisions of
this Article XIX, it being agreed that money damages is not an
adequate remedy for any breach thereof.
Section 20.01_. Governing Law. This Lease and the
performance thereof shall governed, interpreted, construed and
regulated by the laws of the State of Indiana.
Section 20.02. Partial Invalidity. If any term, covenant,
condition or provision of this Lease, or the application thereof
to any person or circumstance, shall at any time or to any extent
be held invalid or unenforceable, the remainder of this Lease, or
the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each such term,
covenant, condition and provision of this Lease shall continue to
be valid, binding and enforceable to the fullest extent permitted
by law.
Section 20,03. Memorandum of LQ52ea. The parties shall, at
the request of either of them, promptly execute and deliver
-21-
duplicate originals of an instrument, in recordable form which
will constitute a memorandum of this Lease, setting forth a
description of the Leased Premises, the term of this Lease and
any other portions thereof.
Section 20.04. Remote Vesting, This Lease and all rights
and interests created hereby are intended to comply in all
respects with applicable common or statutory law, including the
common law Rule Against Perpetuities or analogous statutory
restrictions. Therefore, any provision of this Lease that shall
be construed by a final, non -appealable judicial determination to
create or permit to arise any interest in the Leased Premises
that may vest in the future in any person, shall be deemed to
prohibit the creation of such interest from and after the date
which is twenty-one (21) years after the death of the survivor of
the now living lawful descendants of any of the persons who are
attorneys practicing in the Office of the South Bend City
Attorney as of the date of this Lease.
Section 20.05. Interpretation. Whenever herein the
singular number is used, the same shall include the plural, and
the masculine gender shall include the feminine and neuter
genders, and vice versa, as the context shall require. The
section headings and references to sections used herein are for
reference and convenience only, and shall not enter into the
interpretation hereof. This Lease may be executed in several
counterparts, each of which shall be an original, but all of
which shall constitute one and the same instrument.
Section 20.06. Entire Agreement. No oral statement or
prior written matter shall have any force or effect. This
agreement shall not be modified or canceled except by a writing
signed by the parties.
Section 20.07. Parties. Except as herein otherwise
expressly provided, the covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of
Memorial and the Commission and their respective successors and
assigns.
Section 20.08. Attorneys' Fees. Memorial shall, subject to
all the terms and conditions of this Lease, pay and indemnify the
Commission against all reasonable legal costs and charges,
including reasonable counsel fees, lawfully and reasonably
incurred in obtaining possession of the Leased Premises after
default of Memorial or upon the expiration of the Term. Each
party shall pay to and indemnify the other against all such
reasonable legal costs and charges lawfully and reasonably
incurred in successfully enforcing any covenant or agreement of
the other party herein contained.
Section 20.09. Authority.. Memorial and the Commission each
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represent and warrant to the other that they have the power and
authority to execute and deliver this lease and to carry out and
perform all covenants to be performed by it hereunder.
Section 20-10. Survival. The Commission's obligation under
this Lease to indemnify and hold Memorial harmless shall survive
the expiration of the Term or earlier termination of this Lease.
Nothing contained
herein, including, but not limited to, the method of computing
Rent, shall be deemed or construed by the parties thereto or by
any third party as creating between the parties hereto the
relationship of principal and agent, partnership, joint venturer,
or any relationship other than the relationship of lessor and
lessee.
IN WITNESS WHEREOF, the parties hereto have executed this
Lease as of the day and year first above written.
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT,
acting by and through the
SOUTH BEND REDEVELOPMENT COMMISSION
By:
ATTEST:
Paula N. Auburn, Secretary
Robert W. Hunt, President
-23-
STATE.OF INDIANA )
) S-S. :
COUNTY OF ST. JO.SEPH )
Before me, a Notary Public in and for said County and State
personally appeared Robert, W. Hunt and Paula N. Auburn,, President_
and Secretary, respectively, of the South Bend Redevelopment
Commission and acknowledged the execution of the foregoing.Ground
tease as their voluntary act.and'deed this day of
, 1998.
My Commission Expires:
Notary Public
Residing in St. Joseph County, IN
-24-
MEMORIAL HOSPITAL OF SOUTH BEND, INC.
By;
Philip Newbold
Its: President and C.E.O.
ATTEST:
By:
Its:
STATE OF INDIANA )
)SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State
personally appeared Memorial Hospital of South Bend, Inc., by its
President and C.E.O., Philip Newbold, and acknowledged the
execution of the foregoing Ground Lease as his voluntary act and
deed this day of , 1998.
Notary Public
Residing in St. Joseph County, IN
My Commission Expires:
This document prepared by Anne E. Bruneel, Chief Assistant City
Attorney, 1400 County -City Building, South Bend, IN 46617
-25-
EXHIBIT B
MEMORIAL LEASED PREMISES
A parcel of land being a part of Lots 29, 30, 31 and 32 in
the Original Plat of the Town (now City) of South Bend, Indiana,
and adjacent vacated alley as shown in the Office of the Recorder
of St. Joseph County, Indiana, and being more particularly
described as follows:
Beginning at the Southwest corner of said Lot 31; thence
North 0-10'-28" West along the East right-of-way line of Main
Street, a distance of 92.99 feet; thence North 89-39'-15" East, a
distance of 222.84 feet; thence South 0-20'-45" East, a distance
of 94.22 feet to the North right-of-way line of Jefferson
Boulevard; thence South 89-58'-12" West along said North right-
of-way line, a distance of 223.12 feet to the place of beginning.
EXHIBIT C-#
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EXHIBIT C-2
N TOTAL PARKING INCLUDING RAMP: 548
TOTAL PARKING SPACES (LOWER LEVEL): 236
0' 2W 50' 100, LOWER LEVEL PLAN
DOWNTOWN MIXED USE DEVELOPMENT L"" mw c-mp'"c
South Bend, Indiana
24 July 1990
02/02/98 11:19 #0312 466 4851
UDG - CHICAGO
Won
r
£-0 ZIgIHZS
EXHIBIT D
LEGAL DESCRIPTION OF PROPERTY
A parcel of land being a part of the West Half of the
Northwest Quarter of Section 12, Township 37 North, Range 2 East,
Portage Township, City of South Bend, St. Joseph County, Indiana,
and being more particularly described as follows:
Beginning at the Southwest corner of Lot 31 as the same is
shown and designated on the Original Plat of the Town (now City) of
South Bend and recorded in the office the Recorder of St. Joseph
County, Indiana; thence North 89058112" East (Bearing Assumed for
this survey) along the North right-of-way line of Jefferson
Boulevard, a distance of 345.54 feet to the Southeast corner of Lot
30 in said Original Plat; thence North 0020145" West, along the
West right-of-way line of Michigan Street, a measured distance of
277.24 feet; thence North 89054106" West, a distance of 52.81 feet;
thence North 0020145" West, a distance of 12.49 feet; thence South
89°39-'15" West, a distance of 77.22 feet; thence South 0020145"
East, a distance of 11.89 feet; thence North 89054106" West, a
distance of 214.68 feet to the .East right-of-way line of Main
Street; thence South 00010128" East along the East right-of-way
line of Main Street, a measured distance of 278.01 feet to the
place of beginning containing 96,756 square feet.
The above described parcel of land being subject to the legal
rights of public highways, if any, and subject to any easements,
covenants or restrictions of record.
PROPDES\ENTIRE
ZXH1B=T E
LEGAL DESCRIPTION OF THE
OFFICE BUILDING SITE
A parcel of land being a part of Lots 27, 28, 33 and 34 in the
Original Plat of the Town (now City) of South Bend, Indiana and
adjacent vacated alley as shown in the Office of the Recorder of
St. Joseph County, Indiana and being more particularly described as
follows: Commencing at the Southwest corner of said Lot_ 31; thence
North 0"10'28" West along the East right-of-way line of Main
Street, a distance of 163.82 feet; thence continuing North 0*10128"
West along said East right-of-way line, a distance of 92.67 feet;
thence North 89*39115" East, a distance of 182.85 feet; thence
South 0020145" East, a distance of 92.67 feet; thence South
89*39115" West, a distance of 183.12 feet to the place of
beginning.
De5cription of Parkinga a
The parking garage consists of an underground garage containing approximately 215 parking
spaces that will be constructed on the site. The underground garage will be connected to the
Memorial and MEPT buildings by elevators constructed by Memorial and MEPT. There will
also be an above ground parking garage containing 429 parking spaces locted along Michigan
Street. This above ground garage will contain approximately 11,000 s.f. of retail space fronting
on Michigan Street. Total parking provided by the underground and above ground garages is
approximately 644 spaces.
EXHIBIT "G"
A four story building having approximately 20,360 square feet
on each floor and a fifth floor of approximately 2,397 square
feet for a total of approximately 83,837 square feet. The
facility will house a four lane lap pool, a heated therapeutic
pool, two aerobic studios, a cardiovascular exercise area, a
strengthening and conditioning area, a child care room, a
basketball/volleyball gymnasium, locker rooms, whirlpools,
steam rooms and a virtual golf driving range. Some of the
services that will be offered include wellness and disease
prevention programs, support for pulmonary/cardiac
rehabilitation, an outpatient traumatic brain injury program,
fitness and wellness programs, and orthopedic and sports
therapy.
V
EXHIEXT"K
PROHISITZD USES -RETAIL SPACE
1) Any business Which constitutes a controlled use within -
the meaning of Section 21-1 (31) of the South Bend Municipal Code:
2) Any business which sells cigarettes.
3) Any business which sells liquor.
EXHIBIT H
Lease Agreement