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HomeMy WebLinkAbout6B1DEVELOPMENT AGREEMENT by and between SOUTH BEND REDEVELOPMENT COMMISSION, and 112 WEST JEFF, LLC TABLE OF CONTENTS Page SECTION 1. EFFECTIVE DATE, INTERPRETATION AND TERM ....... ..............................2 SECTION 2. RECITALS .............................................................................. ..............................2 SECTION 3. COMMISSION'S AND REDEVELOPMENT AUTHORITY'S OBLIGATIONS....................................................................... ..............................2 SECTION 4. OWNER'S OBLIGATIONS .................................................... ..............................3 SECTION 5. LIABILITY AND INDEMNITY ............................................ ..............................4 SECTION6. DEFAULT ............................................................................... ..............................4 SECTION 7. MISCELLANEOUS ................................................................ ..............................4 SECTION 8. AMENDMENTS ..................................................................... ..............................6 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT, made on , 2013, is by and among the South Bend Redevelopment Commission, governing body of the South Bend Department of Redevelopment (the "Commission'), and 112 West Jeff, LLC, an Indiana limited liability company (the "Owner ") (each sometimes being referred to herein as a "Party" or collectively as the "Parties "). RECITALS WHEREAS, the Commission exists and operates under the provisions of Indiana Code § 36 -7 -14, commonly known as the 'Redevelopment of Cities and Towns Act of 1953," as amended from time to time ( "Act"); and WHEREAS, Studebaker Plaza, the area described at Exhibit A attached hereto and incorporated herein (the "Plaza ") is located within the corporate boundaries of the City; and WHEREAS, pursuant to IC 36- 7- 14- 12.2(a)(22), the Commission may contract for the construction of local public improvements that are necessary for redevelopment or economic development within the corporate boundaries of the City; and WHEREAS, the Commission desires to construct certain local public improvements to create a user friendly open space that will facilitate and enhance the use of the Plaza and the downtown South Bend by pedestrians, which is an important component of a vibrant urban area; and WHEREAS, the Commission desires to facilitate the construction of local public improvements in accordance with the powers granted the Commission under the Act by undertaking the Improvements (defined herein) subject to the conditions contained herein; and WHEREAS, the local public improvements being funded and constructed by the Commission are described at Exhibit B attached hereto and incorporated herein (the "Improvements "); and WHEREAS, on November 8, 2012, the Commission entered into an "Agreement for License" with the Owner permitting the Commission to enter into the Plaza and to construct and install the Improvements. WHEREAS, the Parties agree that it is of mutual benefit for the Parties to enter into this Agreement relating to the Improvements and certain other matters described herein that will include the commitments of each Party with respect thereto; and NOW, THEREFORE, in consideration of the mutual promises and obligations in this Agreement, the adequacy of which consideration is hereby acknowledged, the Parties agree as follows: SECTION 1. EFFECTIVE DATE, INTERPRETATION AND TERM. 1.1 Effective Date. This Agreement shall be effective as of the date first written above (the "Effective Date "). 1.2 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, Section 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 ". 1.3 Term. The "Term" of this Agreement shall commence upon the Effective Date and shall terminate at 11:59 p.m. on December 31, 2033. Notwithstanding the foregoing, those obligations which by the terns of this Agreement are to continue, shall survive beyond the termination date of this Agreement. SECTION 2. RECITALS. The Recitals set forth above are a part of this Agreement for all purposes. SECTION 3. COMMISSION'S AND REDEVELOPMENT AUTHORITY'S OBLIGATIONS. 3.1 Generally. The Parties acknowledge and agree that Owner'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 the Agreement. 3.2 Improvements. The Commission agrees to construct the Improvements to the Plaza as depicted in Exhibit B. 3.3 Hardscape Public Improvements. Certain of the Improvements are hardscape improvements, as listed in Exhibit B -1 the " Hardscape Public Improvements." The City agrees to provide a Studebaker "S" emblem (the "Emblem ") as one of the Hardscape Public Improvements. -2- dm .us.52586909.04 3.4 Ownership of Hardscape Public Improvements. The City shall retain ownership of the Hardscape Public Improvements for the term of this Agreement, including the Emblem. Upon the expiration of this Agreement, the Hardscape Public Improvements shall become the property of the Owner, other than the Emblem in which the City shall retain ownership. 3.5 Maintenance and Repair of Hardscape Public Improvements. The Commission shall assign to Owner certain warranties received by the Commission with respect to the Hardscape Public Improvements. To the extend any maintenance, repair or replacement to the Hardscape Public Improvements is covered by a warranty assigned to the Owner, the Owner is responsible for invoking such warranty and ensuring that such maintenance, repair or replacement is completed. The Commission shall be responsible for maintenance, repair and replacement of the Hardscape Public Improvements, other than routine maintenance and repairs, not otherwise covered by an existing warranty assigned to the Owner. 3.6 Information. The Commission hereby agrees to provide any and all due diligence items with respect to the Improvements reasonably requested by the Owner. SECTION 4. OWNER'S OBLIGATIONS. 4.1 Generally. The Parties acknowledge and agree that the Commission's agreements to perform and abide by the covenants and obligations set forth in this Agreement are material consideration of Owner's commitment to perform and abide by the covenants and obligations of Owner contained in this Agreement. 4.2 Plaza to Remain Open Space. All areas of the Plaza, other than the area identified as the "outdoor bar seating area" as depicted on Exhibit B shall remain open to the public for the term of this Agreement. If, during the tern of this Agreement, Owner develops, or causes to be developed a project that prevents the Plaza from remaining open to the public, Owner shall pay Commission liquidated damages in the amount of funds expended by Commission to construct the Improvements. The Commission may waive these liquidated damages in writing at its sole discretion. 4.3 Maintenance and Repair of Improvements. Owner shall be responsible for routine maintenance and repair of the Plaza including, but not limited to, trash and litter removal, sweeping, patching, painting, snow removal, landscaping and yard work, tree and plant watering, trimming, removal and replanting, maintenance of irrigation systems and water features, and light bulb replacement. 4.4 Maintenance and Repair of Hardscape Public Improvements. To the extent any maintenance, repair or replacement to the Hardscape Public Improvements is covered by a warranty assigned to the Owner pursuant to Section 3.5, the Owner is responsible for invoking such warranty and ensuring that such maintenance, repair or replacement is completed. 4.5 Right of Entry. Owner grants to the Commission and its agents, a right of entry to access the Plaza for the purpose of fulfilling the Commission's duties pursuant to this Agreement. -3- dm.us.52586909.04 4.6 Taxes. Owner shall be responsible for all taxes assessed with respect to the Plaza. SECTION 5. LIABILITY AND INDEMNITY. 5.1 Owners Liability Assumption of Risk and Indemnity. Owner agrees to indemnify, defend and hold the City and the Commission harmless from and against any third party claims suffered by the City or the Commission relating to the Plaza unless such claims arise by reason of the negligent act or omission of the City or the Commission. 5.2 Commission's Liability Assumption of Risk and Indemnity. The Commission agrees to indemnify, defend and hold Owner harmless from and against any third party claims suffered by Owner as a result of a negligent act or omission of the Commission relating to the construction of the Plaza unless such claims arise by reason of the negligent act or omission of Owner. 5.3 Insurance. Owner shall purchase and maintain, or cause to be purchased and maintained, Comprehensive General Liability Insurance as is appropriate for the Plaza. Owner shall provide proof of such adequate insurance to the Commission and shall notify the Commission of any change in or termination of such insurance. The City and the Commission shall be named as an additional insured. SECTION 6. DEFAULT. Any material failure by either Party to perform any term or provision of this Agreement, which failure continues uncured for a period of 30 days following written notice of such failure from the other Party, unless such period is extended by written mutual consent, 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. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30 -day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30 -day period. Upon the occurrence of a default under this Agreement, the non- defaulting Party may institute legal proceedings at law or in equity (including any action to compel specific performance. If the default is cured, then no default shall exist and the noticing Party shall take no further action. SECTION 7. MISCELLANEOUS. 7.1 Severability. If any tern or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. 7.2 Other Necessary Acts. Each Party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to accomplish the acts 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 -4- dms.us.52586909.04 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. 7.3 Titles of Articles and Sections. Any titles of the several parts, sections, and paragraphs of this Agreement are inserted for convenience or reference only and shall be disregarded in construing or interpreting any of its provisions. 7.4 Counterparts. This Agreement may be executed in counterparts, all of which shall be deemed originals. 7.5 Notices and Demands. 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 (a) in the case of the Owner, is addressed to or delivered personally to Owner: 112 West Jeff, LLC With a copy to: (b) in the case of the Commission is addressed to or delivered personally to: Commission: South Bend Redevelopment Commission 1200 County -City Building South Bend, IN 46601 Attn: Jitin Kain With a copy to: Faegre Baker Daniels LLP 202 S. Michigan St., Suite 1400 South Bend, IN 46601 Attn: Randolph R. Rompola, Esq. or at such other address with respect to such Party as that Party may from time to time designate in writing and forward to the other as provided in this Section. 7.6 Governing Law. This Agreement shall be interpreted and enforced according to the laws of the State of Indiana. -5- dms.us.52586909.04 7.7 Authority. The undersigned persons executing and delivering this Agreement on behalf of each of the Parties represent and certify that they are the duly authorized officers of such Party and have 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. 7.8 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. 7.9 Assignment. Owner's rights under this Agreement shall be personal to Owner and shall not run with the land. Upon written consent of the Commission, Owner may assign its rights and obligations under this Agreement to another party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Owner shall have the right to assign its rights and obligations under this Agreement to another entity that is an affiliate of Owner without the consent of the Commission if such entity has the ability to complete the Improvements and assume all of the obligations and responsibilities of Owner under this Agreement. Additionally, Owner's lender for the Improvements may receive an assignment of Owner's interests in this Agreement, it being understood, however, that the obligations of the Commission under this Agreement will remain subject to satisfaction of the obligations of Owner as described herein. 7.10 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 cant' out the intents and purposes of this Agreement. 7.11 Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Any telecopied version of a manually executed original shall be deemed a manually executed original. SECTION 8. AMENDMENTS. 8.1 Amendment. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties, in accordance with this Agreement. [END OF PAGE] -6- dms.m.52586909.04 IN WITNESS WHEREOF, the Parties hereby execute this Agreement on the date first written above. ATTEST: Secretary ATTEST: Lo Its: COMMISSION: SOUTH BEND REDEVELOPMENT COMMISSION President OWNER: 112 West Jeff, LLC 0 Its: (Signature Page to Development Agreement) EXHIBIT A The Plaza Legal Description of the Real Estate A PART OF LOTS NUMBERED TWO HUNDRED EIGHTY -THREE (283) AND TWO HUNDRED EIGHTY -FOUR (284) AS SHOWN ON THE ORIGINAL PLAT OF THE TOWN, NOW CITY, OF SOUTH BEND, BOUNDED BY LINES RUNNING AS FOLLOWS, VIZ: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT NUMBER TWO HUNDRED EIGHTY -THREE (283) AND RUNNING THENCE SOUTHERLY ALONG THE WEST LINE OF MICHIGAN STREET, EIGHTY -SEVEN (87) FEET, FIVE AND SEVEN - EIGHTS (5 -7/8) INCHES TO THE CENTER OF A SEVENTEEN INCH (17') BRICK WALL, WHICH WALL IS THE SOUTH WALL OF THE PREMISES HEREBY CONVEYED, AND THE NORTH WALL OF THE PREMISES ADJOINING ON THE SOUTH; RUNNING THENCE WESTERLY ALONG THE CENTER OF SAID WALL ONE HUNDRED TWENTY -ONE (121) FEET TO A POINT IN THE SEVENTEEN AND ONE -HALF (17 -1/2) INCH WALL, BEING THE WESTERLY WALL OF THE PREMISES HEREBY CONVEYED, AND THE EASTERLY WALL TO THE PREMISES ADJOINING ON THE WEST; RUNNING THENCE NORTHERLY EIGHTY -SEVEN (87) FEET FIVE AND SEVEN - EIGHTS (5 -7/8) INCHES TO A POINT IN THE NORTH LINE OF LOT TWO HUNDRED EIGHTY -THREE (283) ONE HUNDRED TWENTY -ONE (12 1) FEET WEST OF THE NORTHEAST CORNER OF SAID LOT NUMBER TWO HUNDRED EIGHTY -THREE (283); THENCE EASTERLY ALONG THE NORTH LINE OF SAID LOT NUMBER TWO HUNDRED EIGHTY -THREE (283) TO THE PLACE OF BEGINNING. ALSO, THE RIGHTS AND BENEFITS OF A PARTY WALL AGREEMENT SET OUT IN A DEED BY AND BETWEEN THE STUDEBAKER VEHICLE COMPANY AND SEBASTIAN S. KRESGEE RECORDED NOVEMBER 23, 1912 AS DEED RECORD 148, PAGE 467 OF THE ST. JOSEPH COUNTY RECORDS. A -1 dms.m.52586909.04 C) NBCA -A �b �F _ f EXHIBIT B The Improvements 1 OUTDOOR BAR SEATING AREA 1 1 00 0 dms.us.52586909.04 A EXHIBIT B-1 Hardscape Public Improvements Hardscape Public Improvements include the following: 1. Studebaker "S" Emblem 2. Planter Urns 3. Brick Pavers 4. Pre -cast Concrete Pavers 5. Pre -cast low wall 6. Plastic Chess Set 7. Light Fixtures 8. Benches B -1 -1 dms.us.52586909.04