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HomeMy WebLinkAbout6A8�a�soUT�B Department of Yf,F Community Investment 1� Memorandum Monday, December 9, 2013 TO: Redevelopment Commission FROM: Jitin Kain IV-' SUBJECT: Hill & Colfax Lot Purchase Agreement Attached to this memorandum is a purchase agreement between the Redevelopment Commission and Colfax Hill Partners, LLC for Commission owned property on the NW corner of Hill St. & Colfax Ave. As Commissioners are aware, this property has been vacant for over 10 years and is a prime location for a mixed use project as envisioned in the East Bank Village Master Plan. Earlier this year, staff issued a Call for Offers with the Bradley Company, the listing agents for this property. Three developers responded with their proposals and staff selected the proposal by Colfax Hill Partners, LLC as it best matched the criteria established in the Call for Offers. The attached purchase agreement formalizes the transfer of the property to the developers who have agreed to build a mixed use project on the site with approximately 4,700 sq.ft of commercial space and 13 market rate apartment units. The complete terms are found within the purchase agreement. Some of the highlights are as follows: 1. Developers will pay the Commission $20,000 for the property and build an approximately 22,000 sq.ft mixed use building within 36 months. The projected cost of this building is $2.9 Million. 2. Developers will further seek a 5 year tax abatement for the project. 3. The Commission will agree to the following: a. Address site drainage, parking lot paving, striping, sidewalks and landscaping b. Work with Burkhart advertising to remove a billboard on site c. Address on- street parking and other streetscape elements Staff requests approval of the attached Purchase Agreement with Colfax Hill Partners, LLC and appropriation of $110,000 from the South Bend Central Development Area TIF (SBCDA) for site work associated with this project. 227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 1 P: 574 - 235 -9371 1 FAX: 574- 235 -9021 1 SOUTHBENDIN.GOV CONTRACT FOR SALE OF LAND FOR PRIVATE DEVELOPMENT THIS AGREEMENT, made on , 2013, between the South Bend Redevelopment Commission (the "Commission "), established under the Redevelopment of Cities and Towns Act of 1953, as amended, being Ind. Code 36- 7 -14 -1, et seq. (the "Act "), and having its office at 1400 County -City Building, South Bend, Indiana, and Colfax Hill Partners, LLC, a limited liability corporation organized under the laws of the State of Indiana (the "Developer "), having its principal place of business at 1115 Burns Ave, South Bend, IN 46601. WHEREAS, to further the objectives of the Act: 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 Plan (the "Plan"), to redevelop the area known as the South Bend Central Development Area. Copies of the Plan and amendments thereto, have been recorded in the St. Joseph County Recorder's Office. 2. The Developer has offered to purchase and develop the property described in Exhibit A (the "Property ") according to the Plan and this agreement ( "Contract ") and the Commission is willing to sell the property. 3. The Commission believes that developing the Property according to the Contract 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. NOW, THEREFORE, in consideration of the mutual promises and obligations in this Contract, the parties agree as follows: SECTION I. SALE, PURCHASE PRICE. Subject to all of the terms of this Contract, the Commission agrees to sell and the Developer agrees to purchase the Property. The amount of the Purchase Price is Twenty Thousand Dollars ($20,000.00) payable in full at closing. SECTION II. CONVEYANCE OF PROPERTY. A. Form of Deed. Subject to the terms of this Contract, the Commission shall convey to the Developer title to the Property by warranty deed (the "Deed "). In addition to the other conditions, covenants and restrictions in this Contract, such conveyance and title shall be subject to: 1. Building and use restrictions in the Plan (and its covenants) and this Contract. 2. Applicable building codes and zoning ordinances. 3. Any and all other covenants, restrictions, easements and reservations of record. B. Time and Place of Closing on Sale of the Property. Subject to the terms and conditions of this Contract, the Commission shall deliver the Deed and possession of the Property to the Developer when the conditions precedent to closing enumerated in Subsection F of this SECTION II have been met, or earlier if the parties mutually agree in writing. Conveyance shall be made at a time and place mutually agreed upon by the Commission and Developer. Fees for closing services provided by the title company shall be borne by the Developer. The Developer shall accept the conveyance and pay the Purchase Price to the Commission at that time and place. Prior to closing and as a condition precedent thereto, Developer must provide to the Commission evidence satisfactory to the Commission of a binding commitment by a financial institution for financing of the Project (as defined below). C. Apportionment of Current Taxes. The Commission shall bear the portion of the current taxes (if any) on the Property, which are a lien on the date of delivery of the Deed to the Developer. D. Recordation of Deed. The Commission shall promptly record the Deed at the St. Joseph County Recorder's Office and shall pay the costs for recording the Deed. E. Title Insurance. The Commission shall furnish the Developer a title insurance policy at Commission's expense that insures the Developer's title in a sum equal to the Purchase Price and subject only to those items provided for in the Contract. F. Conditions Precedent to Closing. Prior to and as conditions precedent to closing: The Commission shall provide to Developer an ALTA survey of the Property at Commission's expense. 2. The Commission shall approve the Site Plan (as defined below) attached to this Contract as Exhibit B. 3. Developer shall submit to the Commission evidence satisfactory to the Commission of binding commitments for financing the Project (as defined below). 4. The billboard owned by Burkhart Advertising, Inc. shall have been removed from the Property. dms.us.53213138.03 2 5. Commission has delivered to Developer, at Commission's cost, a Phase I environmental study of the Property that includes language permitting Developer and/or Developer's lender to rely upon the study. 6. Commission has substantially completed the stormwater and drainage improvements as shown in Exhibit C -1. 7. The Common Council of the City of South Bend shall have approved a five (5) year grant of real property tax abatement for all eligible investments in real property improvements to be undertaken by Developer with respect to the Project. SECTION III. NATURE OF IMPROVEMENTS; TIME FOR COMMENCEMENT; AND COMPLETION; PHASING OF PROJECT AND LIQUIDATED DAMAGES. A. Nature of Improvements. The construction of improvements on the Property (the "Project ") shall be substantially of the same size, scope and nature as that specified in the Site Plan and Development Specifications submitted by Developer to the Commission, and as attached to this Contract as Exhibit B (the "Site Plan") (as such may be amended and revised as described in SECTION IV) at a cost to Developer of no less than $2,900,000.00 (the "Total Project Cost "). B. Time for Commencement and Construction. This Project shall begin as soon as possible following closing, as defined in SECTION II, and shall qualify for the award of a certificate of occupancy from the Building Commissioner of the City of South Bend, Indiana, within thirty -six (36) months after execution of this Contract. C. Local Public Improvements and Funding Amount. The Commission agrees to facilitate the Project in accordance with the powers granted the Commission under the Act by undertaking certain local public improvements on and around the Property, as more particularly described in Exhibit C (the "Local Public Improvements ") in an amount not to exceed $110,000.00 (the "Funding Amount ") no later than December 31, 2016 (the "LPI Completion Date "). D. Liquidated Damages. The Parties understand and agree that in the event Developer (i) fails to complete construction of the Project, on or before thirty -six (36) months from the date of execution of this Contract, or (ii) Developer defaults in its obligations under this Contract and fails to cure such default as provided in this Contract before the issuance of a Certificate of Completion as described in SECTION V, below, then Developer shall pay as liquidated damages to the Commission the Funding Amount described above without any reduction, offset, or recoupment. The payment of liquidated damages under this Subsection C shall be in addition to any other remedies otherwise available to the Commission and shall not waive any other right or remedy under this Contract, but Commission acknowledges Developer is relying upon Commission's promise to dms.us.53213138.03 construct the Local Public Improvements as provided in SECTION III, Subsection C and Exhibit C and that a delay in completion of the Local Public Improvements, or a deviation from the specifications described in Exhibit C could cause delay in Developer's completion of the Project. As a result, Commission agrees to extend the thirty -six (36) month deadline for completion of the Project by a reasonable amount of time to be determined by mutual agreement of Developer and Commission that is at least the same length of time by which the Commission was late in meeting the LPI Completion Date. E. Burkhart Billboard. Commission agrees to terminate the July 17, 1985 lease with Burkhart Advertising, Inc. for advertising space on the Property (the "Burkhart Lease ") and to remove, or cause to be removed, at no cost to Developer, the billboard situated on the property prior to the date of closing on the sale of the Property to Developer. Commission agrees to take all actions necessary and reasonable under the Burkhart Lease to ensure proper termination of the lease including providing timely notice of termination and ensuring the commencement of construction within ninety (90) days of providing notice. F. Streetscape Improvements. Commission agrees to work with Developer on a plan for completion of the streetscape improvements with respect to the Property. SECTION IV. TIME FOR CERTAIN OTHER ACTIONS. A. Time for Submitting Plans for Design Development Review. The Developer has submitted for approval by the Department of Redevelopment and the Commission, the Site Plan which details building size and location, building materials, construction, and landscaping. Subject to immaterial changes, modifications and revisions, the Site Plan shall be used by the Commission in determining that Developer has completed the Project and is entitled to the Certificate of Completion as provided in SECTION V. B. Time for Submitting Financial Commitment. Prior to closing on the sale of the Property, the Developer shall submit to the Commission evidence satisfactory to the Commission of binding commitments for financing the Project. SECTION V. COMPLETION. A. Certificate of Completion. Promptly after the Developer completes the Project under this Contract and in substantial accordance with the Site Plan, the Commission shall furnish the Developer with a Certificate of Completion for the Project. The Certificate shall be a conclusive determination of satisfaction and termination of all covenants, requirements, obligations and the like in the Contract and Deed for the Project, except the covenants of SECTION VI of the Contract and Section III of the Deed. After the final issuance of the Certificate of Completion for the Project 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 Property as a result of a default in or breach of any provisions of the Contract or the Deed by the Developer or any successor in interest or assign, unless: dms.us.53213138.03 4 the Developer, any lessee, or any other successor in interest or assign defaults or breaches the covenants of SECTION VI of the Contract or Section III of the Deed, and 2. the right, remedy or control relates to such default or breach. B. Form of Certification. The Certificate provided for in this SECTION V shall be in such form as to be recordable in the St. Joseph County Recorder's Office. C. Refusal or Failure to Provide Certificate. If the Commission refuses or fails to provide the Certificate 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 Contract and giving the measures necessary, in the Commission's opinion, for the Developer to take in order to obtain such Certificate. SECTION VI. RESTRICTIONS UPON USE OF PROPERTY. Developer agrees, and the Deed shall state, that during the Funding Period (as defined in SECTION VII below), it will: (1) devote the Property only to uses described in the Site Plan, and (2) not discriminate on the basis of race, color, creed, sex or national origin in the sale, lease, rental, use or occupancy of the Property. In addition, Developer agrees to require application of these restrictions in any document transferring an interest in the Property to a third party during the Funding Period. SECTION VII. TAX ABATEMENT. The Commission shall recommend approval of and support the granting of a five (5) year real property tax abatement with respect to all eligible investment in real property improvements to be undertaken by Developer with respect to the Project. For purposes of this Contract, the "Funding Period" is the period starting at the execution of this Contract and ending at the expiration of any tax abatement granted to Developer with respect to the Property. dms.us.53213138.03 5 SECTION VIII. PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER. A. Representations as to Development. The Developer represents and agrees that its purchase of the Property and its other undertakings under this Contract are and will be used for development of the Property and not for speculation in land holding. The Developer further recognizes that: 1. in view of the importance of the development of the Property 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 such development possible, and 3. the fact that a transfer in ownership of the Developer is, for practical purposes, a transfer or disposition of the Property then owned by the Developer; the qualifications and identity of the Developer and its shareholders, members 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 Contract 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 that any transactions with respect to the equity of the Developer, including any increased capitalization, merger, transfer or transfers of ownership of the outstanding shares of the Developer, or otherwise, which results in the ownership by persons who are not presently shareholders, members or partners of the Developer of 50% or more of the outstanding equity of the Developer at any time prior to the date of issuance of a Certificate of Completion, will constitute a violation of this Contract unless the Commission has given prior written approval to such transfer or transfers, which approval will not be unreasonably withheld, conditioned, or delayed. C. Prohibition Against Transfer of Property or Assignment of Contract. The Developer represents and agrees for itself, its successors and assigns, that except for security for obtaining financing needed to enable the Developer to make the improvements under this Contract, and except for any other purpose authorized by this Contract, the Developer has not made or will not make prior to receiving the Certificate of Completion: any total or partial sale, assignment, conveyance, or lease; or 2. any trust or power; or dms.us.53213138.03 3. any transfer in any other mode or form, with respect to the Contract or the Property or any part thereof, of any interest therein; or 4. any contract or agreement to do any of the above without prior written approval of the Commission, which approval shall not be unreasonably withheld. This prohibition provided in this subsection does not prohibit the sale or lease of portions of the Project, as contemplated in the Site Plan approved by the Commission and attached to this Contract as Exhibit B. D. Approval of Qualifications Prior to Transfer. The Commission may require as conditions precedent to any approval of transfer or 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 the Act, the Plan, and this Contract. E. No Transfer of Developer's Obligations. Absent 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 Contract or otherwise with respect to the construction of the improvements and completion of the Project from any of its obligations with respect thereto. F. Information as to Interest. The Developer agrees that during the period between execution of this Contract and the Commission's issuance of the Certificate of Completion, the Developer will promptly notify the Commission of any and all changes in the ownership of shares or partnership interest, or any other act or transaction involving or resulting in any change in the ownership of such interest in the Developer or the relative distribution thereof, of which it or any of its officers have been notified or otherwise have knowledge or information, and which results in the ownership of 50% or more of all outstanding equity of the Developer by persons who are not presently shareholders, members or partners of the Developer. SECTION IX. MORTGAGE FINANCING; RIGHTS OF MORTGAGEES. A. Mortgage and Other Encumbrance of Propert y: Before securing any financing by mortgage or similar lien instrument with regard to any part of the Property, the Developer shall notify the Commission. The Commission understands that any interest it may retain in the Property will be subordinate to the interest of a mortgagee. In addition, the Developer shall promptly notify the Commission of any encumbrance that has been attached to the Property, whether by the Developer's voluntary act or otherwise. For any mortgage financing made under this Contract, the Property may, at the Developer's option, be divided into several parts if such subdivision: dms.us.53213138.03 7 1. in the Commission's opinion is not inconsistent with the purpose of the Plan, the Project and this Contract; and 2. is approved in advance in writing by the Commission. Any subdivision under this SECTION IX must also be approved by any other local government agencies whose action is required for such subdivision under local or state law. B. Mortgagee Not Obligated to Construct. Notwithstanding any of the provisions of this Contract, any mortgage holder authorized by the Contract shall not be obligated by this Contract to construct or complete the Project or to guarantee such construction or completion. No covenants or provisions in the Deed shall be construed so to obligate such holder. Nothing in this Contract shall be construed to permit or authorize any such holder to use the Property in any manner not provided for or permitted in the Plan or this Contract or to construct any improvements other than those provided for or permitted in the Plan or this Contract. C. Copy of Notice of Default to Mortgagee. Whenever the Commission delivers a notice or demand to the Developer with respect to any breach or default under this Contract the Commission shall at the same time forward a copy of such notice or demand to each holder of any mortgage authorized by the Contract at the last address of such holder as shown in the records of the Commission. D. Mortgagee's Option to Cure Defaults. After any breach or default referred to in subsection C, above, each such holder shall have the right at its option: to cure or remedy such breach or default to the extent that it relates to the part of the Property covered by its mortgage; and 2. to add the cost of doing so to the mortgage debt and the lien of its mortgage. Such holder shall not undertake or continue the construction beyond the extent necessary to conserve or protect those improvements or construction already made without first having expressly assumed the obligation to complete the construction on the property. This assumption shall be made by written agreement pursuant to terms and conditions satisfactory to the Commission. Any holder who properly completes the Project shall be entitled to request a Certificate of Completion under the same terms and conditions provided for the Developer under SECTION V. E. Commission's Option to Pay Mortgage Debt or Purchase Property. In any case, where after default or breach by the Developer or any successor in interest under the Contract, any mortgage holder of any part of the Property: dms.us.53213138.03 has, but does not exercise, the option to complete the improvements relating to the part of the Property covered by its mortgage or for which it has obtained title, and such failure continues for a period of sixty (60) days after the holder has been notified or informed of the default or breach; or 2. begins construction but does not complete such construction within the period as agreed upon by the Commission and such holder (which period shall in any event be at least as long as the period prescribed for such construction or completion in the Contract), and such default shall not have been cured within sixty (60) days after written demand by the Commission so to do, the Commission shall have the option of paying to the holder the amount of the mortgage debt and securing an assignment of the mortgage and the debt secured under it, and every mortgage instrument made prior to the Commission's issuance of a Certificate of Completion of construction with respect to the Property by the Developer or successor in interest shall so provide. In the event ownership of any part of the Property has vested in such holder by way of foreclosure or action in lieu of foreclosure, the Commission shall be entitled, at its option, to a conveyance of any part of the Property (as the case may be) upon delivering to such holder an amount equal to the sum o£ the mortgage debt at the time *of foreclosure or action in lieu of foreclosure, less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings; 2. all expense with respect to the foreclosure; 3. the net expense, if any, exclusive of general overhead, incurred by such holder in and as a direct result of the subsequent management of the Property; 4. the costs of any improvements made by such holder; and 5. an amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage debt and such debt had continued in existence. F. Commission's Option to Cure Mortgage Default. Prior to the Commission's issuance of a Certificate of Completion, if the Developer or any successor in interest defaults or breaches any of its obligations under any mortgage or other instrument creating an encumbrance or lien upon any part of the Property, the Commission, at its option, may cure such default or breach. If this occurs, the Developer or successor in interest shall reimburse the Commission for all costs incurred by the Commission in curing such default or breach. Such reimbursement shall be in addition to and without limitation upon any other rights or remedies to which the Commission is entitled. Any such dms.us.53213138.03 9 lien shall be subject always to the lien (including any lien contemplated, because of advances yet to be made) of any then existing mortgages on the Property authorized by the Contract, including any lien contemplated, because of advances yet to be made. G. Mortgage and Holder. For the purposes of this Contract: the term "mortgage" shall include a deed of trust or other instrument creating an encumbrance or lien upon any part of the Property as security for a loan to construct and otherwise finance the Project; the term "holder" in reference to a mortgage shall include any insurer or guarantor of any obligation or condition secured by such mortgage or deed of trust, including, but not limited to, the Federal Housing Commissioner, the Administrator of Veterans Affairs, and any successor in office of either such official. SECTION X. REMEDIES. A. In General. Except as otherwise provided in the Contract, upon any default in or breach of the Contract by either 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. Termination by Developer Prior to Conveyance. 1. If the Commission does not tender conveyance or possession of the Property in the manner and condition and by the date provided in the Contract, and any such failure is not cured within forty -five (45) days after the date of written demand by the Developer, the Contract shall be terminated at the option of the Developer, by written notice to the Commission, and, except for return of any Deposit, neither the Commission nor the Developer shall have any further rights against or liability to the other under the Contract: 2. If the Developer furnishes evidence reasonably satisfactory to the Commission that, after and despite reasonably diligent effort for a period of sixty (60) days after the date of this Contract, it has been unable to obtain mortgage financing for the Project on a basis and on terms that would generally be considered satisfactory by builders or contractors for construction of the nature and type of the Project, the Developer shall, after having submitted such evidence and if so requested by the Commission, continue to make diligent efforts to obtain such financing for a period of sixty (60) days after such request. If the Developer fails to obtain financing after efforts listed above, then the Contract shall, at the option of the Commission or the Developer, be terminated by written notice thereof to the other party, dms.us.53213138.03 10 and neither the Commission nor the Developer shall have any further rights against or liability to the other under the Contract. C. Termination by Commission Prior to Conve ance. In the event that: prior to conveyance of the Property to the Developer and in violation of the Contract: a. the Developer (or successor in interest) assigns or attempts to assign the Contract or any rights therein or the Property, or b. there is any change in the ownership of the Developer or with respect to the identity of the parties holding partnership interest 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 equity capital and mortgage financing, in satisfactory form and in the manner and by the dates respectively provided in the Contract therefore; then the Contract and any rights of the Developer in the Contract and the Property shall, at the option of the Commission, without need of the consent of the Developer, be terminated: Provided, however, that with respect to any default or failure referred to in subdivisions 1 or 2 of this SECTION X, Subsection C, a period of thirty (30) days shall be given to cure such failure or default after the date of written demand by the Commission shall be given to cure such failure or default. D. Revesting Title in Commission upon Happening of Event Subsequent to Conveyance to Developer. If, subsequent to conveying any part of the Property to the Developer and prior to completion of the Project 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 Project, including the nature and the dates for the beginning and completion thereof, or shall abandon or 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 fail to pay real estate taxes or assessments on the Property when due, or shall place thereon any dms.us.53213138.03 11 encumbrance or lien unauthorized by the Contract, or shall cause any levy or attachment to be made, or any materialmen's or mechanic's 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 the Contract, any transfer of any part of the Property, or any change in the ownership or distribution of the stock 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 VIII, 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 Property and to terminate and revest in the Commission the estate conveyed by the Deed to the Developer. The intent of this provision, together with other provisions of the Contract, is that the conveyance of the Property to the Developer shall be made upon, and that the Deed 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 Subsection 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 of the title, and of all the rights and interest in and to the Property conveyed by the Deed to the Developer, and that such title and all rights and interests of the Developer, and any assigns or successors in interest to and in the Property, shall revert to the Commission; provided, that such condition subsequent and any revesting of title as a result thereof in the Commission: 1. shall always be subject to and limited by, and shall not defeat, render invalid, or limit in any way, (i) the lien of any mortgage authorized by the Contract, and (ii) any rights or interests provided in the Contract for the protection of the holders of such mortgages; and 2. shall not apply to individual parts of the Property, if any, (or in the case of parts sold or leased, the part so conveyed) on which the construction thereon has been completed under the Contract. E. Resale of Reacquired Property; y Disposition of Proceeds. Upon the revesting in the Commission of title to the Property or any part thereof as provided in Subsection D, above, the Commission shall, pursuant to its responsibilities under State law, use its best efforts to resell the Property or part thereof (subject to such mortgage liens and other interests as set forth in Subsection D above) as soon and in such manner as the Commission shall find feasible and consistent with the objectives of State law and of the 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 dms.us.53213138.03 12 Project 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 resale of the Property, the proceeds shall be applied: First, to reimburse the Commission, on its own behalf or on behalf of the City of South Bend, Indiana, 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 resale of the Property or part thereof, but less any income derived by the Commission from the Property or part thereof in connection with recapture such management or resale; b. all taxes, assessments, and water and sewer charges with respect to the Property or part thereof, or, in the event the Property is exempt from taxation or assessment or such charges during the period of ownership thereof by the Commission, an amount, if paid, equal to such taxes, assessments, or charges, as determined by the appropriate assessing officials, as would have been payable if the Property were not so exempt; C. any payments made or needed to be made to discharge any encumbrances or liens existing on the Property 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 Property 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: a. the sum of the Purchase Price paid by it for the Property (or allocable to the part thereof) and the cash actually invested by the Developer in construction on the Property or part thereof, less b. any gains or income withdrawn or made by the Developer from the Contract or the Property. dms.us.53213138.03 13 Any balance remaining after such reimbursements shall be retained by the Commission as its property. F. Other Rights and Remedies of Commission; No Waiver by Delay. The Commission shall have the right to institute such actions or proceedings, as it may deem desirable, for putting into effect the purposes of this SECTION X. This includes the right to execute and record or file among the public land records in the office in which the Deed is recorded a written declaration of the termination of all the right, title, and interest of the Developer, and (subject to such mortgage liens and conveyances as provided in SECTION X, Subsection D hereof) its successors in interest and assigns, in the Property, and the revesting of title in the Commission. Any delay by the Commission in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this SECTION X 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 Contract 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 Contract be considered or treated as a waiver of the Commission's rights to any other defaults by the Developer under this Contract or with respect to the particular default except to the extent specifically waived in writing. G. Enforced Delay in Performance for Causes Beyond Control of Party. For the purposes of any of the provisions of the Contract, 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 Project, 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 embargos 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 Developer with respect to construction of the Project shall be extended for the period of the enforced delays as determined by the Commission. 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. H. Rights and Remedies Cumulative. The rights and remedies of the parties to the Contract, whether provided by law or by the Contract, 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 dms.us.53213138.03 14 obligation under the Contract 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. I. Party in Position of Surety With Respect 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 the Contract, 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 XI. MISCELLANEOUS. A. Conflict of Interest; Commission Representatives Not Individually Liable. No member, official or employee of the Commission shall have any personal interest, direct or indirect, in the Contract, nor shall any such member, official or employee participate in any decision relating to the Contract 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 that may become due to the Developer, successor or assign or on any obligations under the terms of the Contract. B. Recordation. This Contract shall be recorded in the office of the St. Joseph County Recorder immediately subsequent to its execution. C. Equal Employment Opportunity. 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. D. Provisions Not Merged With Deed. None of the provisions of the Contract are intended to nor shall be merged by reason of any Deed transferring title to the Property from the dms.us.53213138.03 15 Commission to the Developer or any successor in interest, and any such Deed shall not be deemed to affect or impair the provisions and covenants of this Contract. E. Titles of Articles and Sections. Any titles of the several parts, sections and paragraphs of the Contract are inserted for convenience or reference only and shall be disregarded in construing or interpreting any of its provisions. F. Notices and Demands. A notice, demand or other communication under the Contract 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 i. in the case of the Developer, is addressed to or delivered personally to the Developer as follows: Colfax Hill Partners, LLC 1115 Burns Avenue South Bend, IN 46601 Attn: Audra Sieradzki ii. in the case of the Commission, is addressed to or delivered personally to the Commission as follows: South Bend Redevelopment Commission 1400 County -City Building 227 West Jefferson Boulevard South Bend, Indiana 46601 Attn: David Relos With a copy to: Cristal Brisco Corporation Counsel 1200 S 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 XI G. Governing Law. This Contract shall be interpreted and enforced according to the laws of the State of Indiana. dms.us.53213138.03 16 H. Authority. The undersigned persons executing and delivering this Contract on behalf of each Party represent and certify that they have been fully empowered to execute and deliver this Contract and that all necessary action has been taken and done such Party. I. Environmental Concerns. Commission warrants to Developer that there has not been a release of hazardous substance or waste upon the Property, as defined under any Federal law or law of the State of Indiana, and warrants that Commission has obtained all necessary permits for the generation, storage, or transportation of any hazardous waste material on the Property; and further agrees to indemnify and hold harmless against any costs or expenses of any type or nature related to or arising from removal or remedial action incurred as a result of any governmental order resulting from or claimed to have resulted or arisen from the generation, storage, or transportation of hazardous materials on the Property, or the noncompliance with any existing regulation, law, rule or ordinance pertaining to environmental matters, which indemnity shall include, but not be limited to, the cost of defense incurred by Developer, court costs, expenses, attorney's fees, judgments and awards, expenses of investigation, expenses of remediation, and other related expense which may arise from or be claimed to have arisen from any environmental claim of any type or nature pertaining to the Property. For the purposes of this paragraph, "hazardous substance" and "environmental matters" shall include all chemicals, compounds, products, by- products, contaminants, substances, emissions, and/or any other regulated environmental agent or event, as set forth in any federal, state or local statute, rule, regulation or ordinance relating to the environment, or underground storage tanks, including, without limitation, the Clean Air Act, 42 U.S.C. §7401, et §M.; the Clean Water Act, 33 U.S.C. § 1251, et se .; Resource Conservation and Recovery Act, §42 U.S.C. 6921, et seg; the Solid Waste Disposal Act, 42 U.S.C., §6901, et seq.; the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §9601, et sce .; the Emergency Planning and Community Right -to -Know Act, 42 U.S.C. §11001, et se ., together with any parallel or similar state and local laws, and all rules and regulations promulgated pursuant thereto. The Commission's obligation to indemnify and hold harmless under this paragraph shall be limited to environmental concern(s) of which it has knowledge prior to the construction deadline set forth above in SECTION III Subsection (B). The Commission's obligation to indemnify and hold harmless shall expire and be no longer enforceable at the end of thirty -six (36) months after execution of this Contract; unless notice has been given requesting indemnification of specific concern(s) within the thirty -six (36) month period, then the Commission shall continue to indemnify and hold harmless for any concern(s) for which notice was given. above. IN WITNESS WHEREOF, the Parties hereby execute this Contract on the date first written [SIGNATURE PAGES ATTACHED] dms.us.53213138.03 17 [Signature page to Contract for Sale of Landfor Private Development] CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT Signature Printed Name and Title South Bend Redevelopment Commission ATTEST: Printed Name and Title South Bend Redevelopment Commission STATE OF INDIANA ) ) SS: ST. JOSEPH COUNTY ) Before me, the undersigned, a Notary Public, in and for said County and State, personally appeared and , known to me to be the and respectively of the South Bend Redevelopment Commission and acknowledged the execution of the foregoing Contract for Sale of Land for Private Development. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day of , 2013. My Commission Expires: Notary Public Residing in St. Joseph County, Indiana dms.us.53213138.03 18 [Signature page to Contract for Sale of Landfor Private Development] COLFAX HILL PARTNERS, LLC Date: Signature Printed Name and Title ATTEST: Signature Printed Name and Title STATE OF INDIANA ) ) SS: ST. JOSEPH COUNTY ) 2013 Before me, the undersigned, a Notary Public, in and for said County and State, personally appeared and known to me to be and of Colfax Hill Partners, LLC, and acknowledged the execution of the foregoing Contract for Sale of Land for Private Development. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the _ day of 52013. My Commission Expires: Notary Public Residing in St. Joseph County, Indiana This instrument was prepared by Lawrence J. Meteiver, Assistant City Attorney, 1200 S County-City Building, 227 W. Jefferson Blvd., South Bend, Indiana 46601,(574)235 -9294. 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. Lawrence J. Meteiver. dms.us.53213138.03 19 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY EXHIBIT A PARCEL I: A tract of land 55 feet in width, East and West, taken off of and from the entire length of the West side of Lots Numbered Eighty -nine (89) and Ninety (90) as shown on the recorded Original Plat of the Town of Lowell,now a part of the City of South Bend, recorded May 4, 1860 in Plat Book "J ", page 455 in the Office of the Recorderof St. Joseph County, Indiana. PARCEL Il; A part of Lot Numbered Eighty -nine (89) as shown on the Original Plat of the Town of Lowell, now a part of the City of South Bend, which part is bounded by a line running as follows: Beginning at the Northeast corner of said Lot 89; thence South 44 feet; thence West 110 feet; thence North 44 feet; thence East 110 feet to the place of beginning. PARCEL III: A part of Lots Numbered Eighty -nine (89) and Ninety (90) as shown on the Original Plat of the Town of Lowell, now a part of the City of South Bend, which part is bounded by a line running as follows, viz: Beginningat the Southeast corner of said Lot 90; thence running West on South line thereof, a distance of 110 feet; thence North 88 feet; thence East 110 feet to the East line of said Lot 89; thence South on the East line of said Lots 89 and 90 a distance of 88 feet to the place of beginning. dms.us.53213138.03 20 EXHIBIT B SITE PLAN AND DEVELOPMENT SPECIFICATIONS 4 4 �! o 5 r 's ALLET (ONE-WAY) P f 1111 pf sib— 4 e r D X U y O• z c Ie of vi q. o u A y I a I I 4 •' I ti 1 � e I � I 1 ool_l000 �� . o F S HILL STREET 66' R/W b COLFC,?X ALLIANCE SITE DEVELOPMENT PLAN 13 -0. -15 YN1>raw/ 0—l— , dms.us.53213138.03 �) 1 EXHIBIT C LOCAL PUBLIC IMPROVEMENTS • Site utilities including stormwater and drainage improvements (per Abonmarche Plan attached as Exhibit C -1) • Sidewalks • Parking Lot paving, striping and landscaping dms.us.53213138.03 22 EXHIBIT C-1 . . ........... . .. T 7- 4-1 SOW& so 40LI t 4011 I dms.us.53213138.03 23 mrlseQm