HomeMy WebLinkAbout6A(2) DEVELOPMENT AGREEMENT
by and between
THE SOUTH BEND REDEVELOPMENT COMMISSION,
and
HOFFMAN HOTEL APARTMENT HOUSING PARTNERS, L.P.
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT, made on , 2014, by and
between the South Bend Redevelopment Commission, governing body of the South Bend
Department of Redevelopment (the "Commission") and Hoffman Hotel Apartment Housing
Partners, L.P., an Indiana limited partnership (the "Developer") (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(the "Act"); and
WHEREAS, the Indiana legislature has determined that the clearance, planning and
development of redevelopment areas are public uses and purposes for which public money may
be spent; and
WHEREAS, the area described on Exhibit A-1 attached hereto and incorporated herein
(the "Hoffman Hotel Property") is located within the corporate boundaries of the City of South
Bend, Indiana (the "City") and further is located within that area known as the "South Bend
Central Development Area" (the "Area"), an area previously determined by the Commission to
be a redevelopment area under the Act; and
WHEREAS, the Commission has designated and declared and the Common Council of
the City (the "Common Council") has approved of the designation and declaration of the entire
Area to be a tax increment financing allocation area and named the "South Bend Central
Development Area, Allocation Area" (the "Allocation Area"); and
WHEREAS, Developer desires to develop and otherwise rehabilitate a structure on the
Hoffman Hotel Property to be known as "The Hoffman Hotel" (collectively, the "Project"), all
as more particularly depicted on Exhibit B attached hereto and incorporated herein (the "Site
Plans"); and
WHEREAS, the Commission has previously adopted a development plan for the Area
(the "Redevelopment Plan"), which has subsequently been amended from time to time and
contemplates development of the area consistent with the Project,to be located in the Area; and
WHEREAS, the Commission believes that accomplishing the Project as described herein
is in the best interests of the health, safety and welfare of the City and its residents and complies
with the public purposes and provisions of the Act and all other applicable federal, state and
local laws under which the Project has been undertaken and is being assisted; and
WHEREAS, the Commission desires to facilitate the Project in accordance with the
powers granted the Commission under the Act by undertaking certain local public improvements
as more fully described in Exhibit C (the "Local Public Improvements") and the financing
thereof subject to the conditions contained herein; and
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WHEREAS, the Parties agree that it is of mutual benefit for the Parties to enter into this
Agreement relating to the Project, the Local Public 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. DEFINITIONS.
Defined terms are indicated by initial capital letters. Defined terms shall have the
meaning set forth herein, whether or not such terms are used before or after the definitions are set
forth. The following terms are more specifically defined below:
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
of South Bend, a public body granted the power to award contracts for public works pursuant to
IC 36-1-12.
1.3 Construction Management Agreement. Construction Management Agreement
refers to the agreement described in Section 6.1 of this Agreement.
1.4 Easement. Easement means the grant of easement by Developer to
Commission pursuant to Section 3.1 hereof.
1.5 Funding Amount. Funding Amount shall mean an amount not to exceed One
Hundred Seventy Five Thousand and no/100 Dollars ($175,000.00) of tax increment finance
revenues to be used for paying the costs to construct the Local Public Improvements, including
payment of a construction management fee pursuant to the Construction Management
Agreement relating to the construction of the Local Public Improvements.
1.6 Hoffman Hotel Property. The Hoffman Hotel Property means the property
more particularly described in Exhibit A-1, together with all improvements thereon and all
easements,rights, licenses and other interests appurtenant thereto.
1.7 Local Public Improvements. Local Public Improvements means the local public
improvements in support of the Project in the Area, including the roof, exterior facade, site work
and related improvements, each of which shall be completed as described in this Agreement, all
as more particularly described on Exhibit C.
1.8 South Parking Lot Property. South Parking Lot Property means the property
immediately adjacent to and south of the Hoffman Hotel Property, as more particularly described
in Exhibit A-2, together with all improvements thereon and all easements, rights, licenses and
other interests appurtenant thereto.
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1.9 Private Investment. Private Investment means the sum of the construction and
improvement costs associated with the Project, including architectural, engineering and any other
costs directly related to construction of the Project that are expected to contribute to increases in
the Assessed Value of the improvements comprising the Hoffman Hotel Property. The Private
Investment is described on Exhibit D attached hereto and incorporated herein.
1.10 Project Site and Project. Project Site means the Hoffman Hotel Property.
Project means the development of the Hoffman Hotel Property contemplated by this Agreement.
SECTION 2. EFFECTIVE DATE,INTERPRETATION,TERM AND RECITALS.
2.1 Effective Date. This Agreement shall be effective as of the date first written
above(the "Effective Date").
2.2 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".
2.3 Term. The "Term" of this Agreement shall commence upon the Effective Date
and continue until the date on which the occupancy permits for the Project have been received.
Notwithstanding the foregoing, those obligations which by the terms of this Agreement are to
continue, shall survive beyond the termination date of this Agreement.
2.4 Recitals. The Recitals set forth above are a part of this Agreement for all
purposes.
SECTION 3. GRANT OF EASEMENT.
3.1 Grant of Easement. Developer shall grant to the Commission a temporary non-
exclusive easement on, in, over and across the Hoffman Hotel Property to permit the
Commission to fulfill its obligations under this Agreement, including, but not limited to the
construction, equipping and delivery of the Local Public Improvements (the "Easement") in such
form as mutually agreed to between the Parties. The Easement shall (a) run with and burden the
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Hoffman Hotel Property; (b) inure to the benefit of the Commission and its contractors acting on
behalf of the Commission in connection with the construction, equipping and completion of the
Local Public Improvements; (c) bind the Developer (as owner of the Hoffman Hotel Property)
and its grantees, successors and assigns; and (d) terminate upon completion of the Local Public
Improvements.
SECTION 4. DEVELOPER'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 Developer's commitment to perform and abide by the covenants and
obligations of Developer contained in this Agreement.
4.2 The Project.
(a) Developer shall develop or cause to be developed The Hoffman Hotel in
accordance with the specifications set forth on Exhibit B attached to this Agreement and
made a part hereof which will comply with all zoning and land use laws and ordinances
in all material respects.
(b) As part of the development of the Hoffman Hotel, Developer shall
construct or cause to be constructed the improvements being funded by the Private
Investment by the date set forth on Exhibit D attached to this Agreement and made a part
hereof.
4.3 Private Investment. Developer agrees to Private Investment for the Project of
Four Million and 00/100 Dollars ($4,000,000.00) and other valuable consideration, as more
particularly described in Exhibit D which amount Developer shall use commercially reasonable
efforts to invest in the development of the Project, whether through equity, debt, and/or third-
party investment.
4.4 Cooperation. Developer and Commission each agree to endorse and support the
other party's efforts to expedite the Project through the required planning, design, permitting,
waiver, and related regulatory processes.
4.5 Employment of Local Labor and MBE/WBE Contractors.
(a) Employment of Local Labor. Developer hereby agrees to provide notice
to local contractors and to business agents of skilled trade unions of all requests for bids,
of pre-bid meetings and of related meetings and information with respect to the Project so
as to use commercially reasonable efforts to employ qualified local contractors and other
related local labor during construction of the Project.
(b) Employment of MBE/WBE Contractors. In awarding contracts for the
purchase of work, labor, services, supplies, equipment, materials, or any combination of
the foregoing including, but not limited to, public works contracts awarded under public
bidding laws or other contracts in which public bids are not required by law, the
Developer agrees to exercise good faith efforts to obtain participation by those
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contractors certified by the State of Indiana as a Minority Business Enterprise ("MBE")
or as a Women's Business Enterprise ("WBE") as a factor in determining the lowest,
responsible,responsive bidder.
4.6 Timeframe for Completion. Developer hereby agrees to complete the
development of the Project and any other obligations the Developer may have in conjunction and
in accordance with this Agreement by July 1, 2016.
4.7 Reporting Obligations.
(a) Upon the letting of contracts for substantial portions of the Project and
again upon substantial completion of the Project, Developer hereby agrees to report to the
Commission the number of local contractors and local laborers involved in the Project,
the amount of bid awards for each contract related to the Project, and information
regarding which contractor is awarded each contract with respect to the Project.
(b) On or before April 15, June 30, September 30 and December 31 of each
year until substantial completion of the Project, Developer shall submit to the
Commission a report demonstrating Developer's good-faith compliance with the terms of
this Agreement. This 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.
(c) On or before April 15 of the year that is one year after substantial
completion of the Project and on each April 15 thereafter until April 15 of the year which
is five years after substantial completion of the Project, Developer shall submit to the
Commission a report with the following information: (i) the number of jobs created as a
result of the Project and wage and benefit information for the jobs created; and (ii) a
detailed description of the of the job and wage details for the number of people employed
by the Project.
4.8 Submission of Plans and Specifications. Developer has made the Site Plans,
specifications and other planning materials of the Project available to the Commission as
identified on Exhibit B attached hereto and incorporated herein. Subject to the terms and
conditions of this Agreement, Developer shall construct, or cause to be constructed, the Project
in substantial accordance with the Site Plans; provided, that, Developer, may make changes,
supplements, deletions, additions and/or modifications to the Site Plans from time to time so
long as Developer obtains the Commission's written consent in the event of any material change
supplement, deletion, addition and/or modification to the Site Plans. Upon completion of plans
and specifications for the Project, Developer shall deliver a complete set thereof to the
Commission.
4.9 Costs and Expenses of Construction of Development. Developer hereby agrees
to pay, or cause to be paid, all costs and expenses of construction for the Project (including legal
fees, architectural and engineering fees), exclusive of the Local Public Improvements, which
shall be paid for by the Commission by and through the Funding Amount; provided, however,
Developer may pay certain expenses related to the design of the Local Public Improvements
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which expenses shall be reimbursed by the Commission, all in accordance with the Construction
Management Agreement(as herein defined).
4.10 Non-Interference. Developer hereby agrees to use commercially reasonable
efforts to minimize disruption for those living and working near the Hoffman Hotel Property
during construction of the Project.
4.11 Grant of Easement. Developer agrees to take all actions necessary to grant the
Easement to the Commission, as provided for in Section 3.5 of this Agreement.
4.12 Insurance; Indemnity. Developer shall purchase and maintain, or cause to be
purchased and maintained, Comprehensive General Liability Insurance as is appropriate for the
work being performed with respect to the Project. Developer shall provide proof of such
adequate insurance to the Commission and shall notify the City and the Commission of any
change in or termination of such insurance. During the period of construction or provision of
services regarding any Local Public Improvements, the City shall be named as an additional
insured for the minimum amounts or greater when required by law as described in Exhibit E
attached hereto and incorporated herein (but not on any worker's compensation policies). The
Developer agrees to indemnify, defend and hold harmless the Commission from and against any
third party claims suffered by the Commission resulting from or incurred in connection with the
Local Public Improvements.
4.13 Public Announcements, Press Releases and Marketing Materials. Developer
hereby agrees to (a) coordinate a Project "kick off' press release with the Commission, (b)
coordinate a Project groundbreaking ceremony with the Commission, and (c) use commercially
reasonable efforts to coordinate other significant public announcements with the Commission,
subject, in each case, to any securities laws that would prevent Developer from engaging in such
coordination. Developer agrees to allow the Commission to distribute and use Developer's
marketing materials to promote the Project.
4.14 Information. Developer agrees to provide any and all due diligence items with
respect to the Project reasonably requested by the Commission.
SECTION 5. COMMISSION'S OBLIGATIONS.
5.1 Generally. The Parties acknowledge and agree that Developer'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.
5.2 Completion of Local Public Improvements.
(a) The Commission hereby agrees to complete (or cause to be completed)the
Local Public Improvements on a schedule to be reasonably determined and agreed to by
the Commission and Developer, as may be modified due to unforeseen circumstances and
delays.
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(b) The Commission agrees to enter into the Construction Management
Agreement with the Developer as more particularly described in Section 6.1 of this
Agreement.
(c) Notwithstanding anything contained herein to the contrary, in the event
the costs to construct the Local Public Improvements are in excess of the Funding
Amount, Developer, at its sole option, may determine to pay to the Commission the
amount of the excess costs to permit timely completion of the Local Public
Improvements by the Commission, or an agent of the Commission, which amounts shall
be applied for such purpose. If Developer chooses not to pay any such excess costs of the
Local Public Improvements (above the Funding Amount), the Commission may reduce
the scope of the Local Public Improvements to the amount which may be funded with the
Funding Amount.
5.3 Cooperation. Consistent with City policy, the Commission hereby agrees to
endorse and support Developer's efforts to expedite the Project through the required planning,
design, permitting, waiver and related regulatory processes; provided, however, the Commission
shall not be required to expend any money in connection therewith. The Commission further
agrees to permit Developer, or its agents, access to the Hoffman Hotel Property through the use
of the public roads surrounding the Hoffman Hotel Property necessary to accomplish the actions
contemplated by this Agreement.
5.4 Tax Abatement. Upon request of Developer and at the earliest opportunity
legally permissible and upon timely receipt of the appropriate documentation, Commission
agrees to recommend approval of Developer's petition for real property tax abatement.
5.5 Costs and Expenses. The Commission hereby agrees to bear its own costs and
expenses related to this Agreement (including legal fees) not directly related to the design and
construction of the Local Public Improvements (such costs to be paid from the Funding
Amount).
5.6 Zoning, Variance, Special Permits, Etc. The Commission hereby agrees to
continue to assist Developer in its efforts to seek zoning, variance, design, sign, health, safety,
construction and other necessary permits, consents and/or approvals to complete the Project (to
the extent they have not yet been obtained and completed).
5.7 Information. The Commission hereby agrees to provide any and all due
diligence items with respect to the Project reasonably requested by the Developer.
5.8 Public Announcements, Press Releases and Marketing Materials. The
Commission hereby agrees to coordinate all public announcements and press releases relating to
the Project with Developer.
SECTION 6. ADDITIONAL DOCUMENTS AND AGREEMENTS.
6.1 Construction Management Agreement. The Commission shall enter into a
construction management agreement in the form attached hereto and incorporated herein as
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Exhibit F (or in such other form as mutually agreed) with Equal Construction, LLC, and the
Board of Works whereby the Commission and the Board of Works shall designate and appoint
Equal Construction, LLC, as construction manager and agent to act on behalf of the Commission
and the Board of Works in connection with the construction of the Local Public Improvements
(the "Construction Management Agreement"). Pursuant to the Construction Management
Agreement, Equal Construction, LLC, shall be responsible for and/or enabled to (a)preparing the
plans and specifications for the Local Public Improvements, (b) preparing all necessary bid
documents and legal advertisements, scheduling and participating in any pre-bid meetings with
potential bidders, reviewing bids and making recommendations with regard to the award of bids,
(c) supervising and monitoring the construction of the Local Public Improvements, including
establishing the timing, sequence and phasing of construction of the Local Public Improvements,
(d) recommending and processing change orders, and (e) reviewing all payment requests
submitted by contractors and vendors and recommending payments to be made by the Board of
Works. The Commission shall be responsible for reallocating the costs amongst the budgeted
line items within Exhibit C for provision of the full Funding Amount toward the Local Public
Improvements.
6.2 Option to Acquire South Parking Lot Property. Equal Holdings XII, LLC
("Equal Holdings"), an affiliate of the Developer, will acquire the South Parking Lot Property in
connection and simultaneous with the Developer's acquisition of the Hoffman Hotel Property,
for the purpose of providing dedicated surface parking to the Developer for tenants of the
Project. Equal Holdings will grant an exclusive parking easement to the Developer, for a term
not to exceed ninety (90) years, pursuant to an Easement Agreement substantially in the form
attached hereto as Exhibit G. Equal Holdings will also grant an access easement to the owner of
the corner surface parking lot to the immediate north of the South Parking Lot Property, pursuant
to an Access Easement Agreement substantially in the form attached hereto as Exhibit H.
Following the execution, delivery and recording of the Easement Agreement and the Access
Easement Agreement, Equal Holdings will grant to The Commission an option to purchase the
South Parking Lot Property at a purchase price of One and 00/100 Dollars ($1.00), which shall
be exercisable by The Commission commencing upon the completion of the Local Public
Improvements and the completion of construction of the Project, and extending for a period of
twenty (20) years thereafter (the "Parking Purchase Option"). The Parking Purchase Option
shall be in substantially the form attached hereto as Exhibit I, and shall provide for the transfer
of the South Parking Lot Property free and clear of liens and encumbrances, other than the
easements granted pursuant to the Easement Agreement and the Access Easement Agreement,
which shall remain in place following such transfer, subject to the termination provisions set
forth therein, and any other liens and encumbrances approved by The Commission. The
Commission shall be entitled to record a memorandum of the Parking Purchase Option with
respect to the South Parking Lot Property following the recording of the Easement Agreement
and the Access Easement Agreement. The Easement Agreement, the Access Easement
Agreement and the Parking Purchase Option shall be executed and delivered simultaneous with
this Agreement.
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
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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 and retain such counsel at its own expense, and in no event shall the Commission
be required to bear the fees and costs of Developer's attorneys nor shall Developer be required to
bear the fees and costs of the Commission's attorneys. The Parties agree that this Section 7.1
shall constitute a separate agreement entered into concurrently with this Agreement, and 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. DEFAULT.
8.1 Default. Except as provided in Section 8.2 and Section 8.3 hereof, 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); provided, that in no event shall any Party have the right to terminate this
Agreement. If the default is cured, then no default shall exist and the noticing Party shall take no
further action. If Developer provides the Commission with notice of the contact information for
Developer's Project lender, then such lender shall be provided any notice of default of Developer
hereunder and the opportunity to cure such default.
8.2 Termination of Benefits. If Developer fails to meet the obligation to complete
construction of the Project or if Developer fails to meet the Private Investment provided for
herein by more than 10% (meaning the Private Investment made by Developer does not exceed
$3,600,000), the Commission may recommend termination of any property tax abatement
granted, in connection with the Project.
8.3 Reimbursement Obligation. If Developer fails to complete construction of the
Project by July 1, 2016, or if the Developer fails to make a Private Investment of at least
$3,600,000,Developer agrees,upon request of the Commission,to:
(a) Repay to the City all or a portion, as determined by the Common Council,
of any tax abatement savings received through the date of such termination.
(b) Repay the Commission for all or a portion of the Funding Amount
expended by the Commission in furtherance of the Project.
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8.4 Enforced Delay in Performance for Causes Beyond the Control of a Party;
Extension of Time of Performance. 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, an extension of time for 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.
SECTION 9. NO AGENCY,JOINT VENTURE OR PARTNERSHIP; CONFLICT OF
INTEREST,INDEMNITY.
9.1 No Agency, Joint Venture or Partnership. It is specifically understood and
agreed to by and between the Parties that:
(a) The Project is a private development;
(b) Neither the Commission, the BPW nor Developer have 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 BPW and/or Developer accepts the
same pursuant to the provisions of this Agreement; and
(c) The Commission, the BPW and Developer hereby renounce the existence
of any form of agency relationship,joint venture or partnership between the Commission,
the BPW and Developer 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, the BPW and Developer.
9.2 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 this Agreement, nor shall any such member, official, or employee participate in any
decision relating to this 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 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 Developer or successor or assign or on any obligations under the
terms of the Agreement. No partner, employee or agent of Developer or successors of them shall
be personally liable to the Commission under this Agreement.
9.3 Indemnity.
(a) Subject to Section 3.6 of this Agreement, the Commission agrees to
indemnify, defend and hold Developer harmless from and against any third party claims
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suffered by Developer as a result of a negligent act or omission of the Commission
relating to the completion of the Project and/or the Local Public Improvements unless
such claims arise by reason of the negligent act or omission of Developer.
(b) Developer agrees to indemnify, defend and hold the Commission harmless
from and against any third party claims suffered by the Commission as a result of a
negligent act or omission of Developer relating to the completion of the Project and/or
the Local Public Improvements unless such claims arise by reason of the negligent act or
omission of the Commission.
SECTION 10. MISCELLANEOUS.
10.1 Severability. If any term 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.
10.2 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
Project 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.
10.3 Waiver of Jury Trial. 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. In any legal proceeding, each party irrevocably waives the right to trial
by jury in any action, counterclaim, dispute or proceeding based upon, or related to the subject
matter of this Agreement. This waiver applies to all claims against all parties to such actions and
proceedings. This waiver is knowingly, intentionally and voluntarily made by both parties.
10.4 Attorneys' Fees. In the event of any litigation, mediation or arbitration between
the Parties regarding an alleged breach of this Agreement, none of the Parties shall be entitled to
any award of attorney's fees.
10.5 Equal Employment Opportunity. Developer, for itself and its successors and
assigns, agrees that during the construction of the Project:
(a) Developer will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. Developer agrees to
post in conspicuous places, available to employees and applicants for employment,
notices setting forth the provisions of this nondiscrimination clause; and
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(b) Developer will state, in all solicitations or advertisements for employees
placed by or on behalf of Developer, that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, or national
origin.
10.6 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.
10.7 Counterparts. This Agreement may be executed in counterparts, all of which
shall be deemed originals.
10.8 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 Developer, is addressed to or delivered personally to
Developer: Hoffman Hotel Apartment Housing Partners, LP
4000 W. 106th Street, Suite 125-146
Carmel, IN 46032
Attn: William J. Hollingsworth
(b) in the case of the Commission is addressed to or delivered personally to:
Commission: The South Bend
Redevelopment Commission
227 W. Jefferson Blvd., Suite 1400S
South Bend, IN 46601
Attn: Chris Fielding
With a copy to: Office of the Corporation Counsel
227 W. Jefferson Blvd, Suite 1200S
South Bend, IN 46601
Attn: Cristal Brisco, 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.
10.9 Governing Law. This Agreement shall be interpreted and enforced according to
the laws of the State of Indiana.
10.10 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.
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10.11 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.
10.12 Assignment. Developer's rights under this Agreement shall be personal to
Developer and shall not run with the land. Upon written consent of the Commission, Developer
may assign its rights and obligations under this Agreement to another party. Notwithstanding the
foregoing, Developer shall have the right to assign its rights and obligations under this
Agreement to another entity that is an affiliate of Developer without the consent of the
Commission if such entity has the ability to complete the Project and assume all of the
obligations and responsibilities of Developer under this Agreement. Additionally, Developer's
lender for the Project may receive an assignment of Developer'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 Developer as described herein.
10.13 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.
10.14 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 11. AMENDMENTS.
11.1 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]
{20142670.DOCX}
IN WITNESS WHEREOF, the Parties hereby execute this Agreement on the date first
written above.
COMMISSION:
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
Signature
Printed Name and Title
South Bend Redevelopment Commission
ATTEST:
Signature
Printed Name and Title
South Bend Redevelopment Commission
STATE OF INDIANA )
SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public for and in said County and State this day
of , 2014, personally appeared and
, the and
of the South Bend Redevelopment Commission, and
acknowledged execution of the foregoing Development Agreement for and on behalf of South
Bend Redevelopment Commission for the use and purposes contained therein.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
(SEAL)
,Notary Public
Commission expires: Resident of County,
(Signature Page to Development Agreement)
{20142670. DOCX}
DEVELOPER:
Hoffman Hotel Apartment Housing Partners, LP
By: Equal Holdings XII, LLC, its general partner
By:
William J. Hollingsworth, Member
STATE OF INDIANA )
SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared William J.
Hollingsworth, Member of Equal Holdings XII, LLC, a general partner of Hoffman Hotel
Apartment Housing Partners, LP, and acknowledged the execution of the foregoing
Development Agreement for and on behalf of Hoffman Hotel Apartment Housing Partners, LP
for the use and purposes contained therein.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
(SEAL)
,Notary Public
Commission expires: Resident of County,
(Signature Page to Development Agreement)
This Instrument prepared by Lawrence J. Meteiver,Assistant City Attorney, 227 W. Jefferson
Blvd. 202 South Michigan Street, Suite 1400 South Bend, Indiana 46601.
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
{20142670. DOCX}
EXHIBIT A-i
The Hoffman Hotel Property
Legal Description
A part of the West half of the Northwest Quarter of Section 12, T. 37 N., R. 2 E.
Also known as the East 87.7 feet of Lot #12 in the recorded plan of the Original
Plat of the Town, Now City of South Bend, St. Joseph County, Indiana.
[Generally referred to as Parcel Key No. 018-1008-0299]
•
{20142670. DOCX}
EXHIBIT A-2
SOUTH PARKING LOT PROPERTY
A part of the West half of the Northwest Quarter of Section 12, T. 37 N., R. 2 E.
Also known as Lot #11 in the recorded plan of the Original Plat of the Town,
Now City of South Bend, St. Joseph County, Indiana. [Generally referred to as
Parcel Key No. 018-1008-0300]
{20142670. DOCX}
EXHIBIT B
Site Plan for Hoffman Hotel
{20142670. DOCX}
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EXHIBIT C
Description of Local Public Improvements
To be determined.
Estimated Costs of Local Public Improvements
Not-to-exceed $175,000.
{20142670. DOCX}
EXHIBIT D
Description of Private Investment and Substantial Completion
All of the following are to be completed for a total investment by Developer of no less than Four
Million and 00/100 Dollars ($4,000,000).
Work to be performed:
To be determined.
Substantial Completion Benchmarks:
To be determined.
1
{20142670. DOCX}
EXHIBIT E
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. $1,000,000.00 Each Occurrence
b. $5,000,000.00 Annual Aggregate Products
and Completed Operation
2. Property Damage
a. $1,000,000.00 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
D. Comprehensive Liability Insurance
1. Bodily Injury
a. $1,000,000.00 Each Occurrence
b. $5,000,000.00 Annual Aggregate Products
and Completed Operation
2. Property Damage
a. $1,000,000.00 Each Occurrence
b. $5,000,000.00 Annual Aggregate
{20142670. DOCX}
EXHIBIT F
CONSTRUCTION MANAGEMENT AGREEMENT
{20142670. DOCX}
CONSTRUCTION MANAGEMENT AGREEMENT
THIS CONSTRUCTION MANAGEMENT AGREEMENT, made on
, 2014, by and between the South Bend Redevelopment Commission
("REDEVELOPMENT COMMISSION"), the South Bend Board of Works ("BOARD OF
WORKS") (collectively, "CITY") and Equal Construction, LLC, an Indiana limited liability
company ("DEVELOPER").
WHEREAS, the South Bend Redevelopment Commission and Hoffman Hotel
Apartment Housing Partners, L.P., have entered into a Development Agreement, dated
, 2014, relating to the development of a mixed use project to be located in
South Bend, Indiana, and commonly referred to as "The Hoffman Hotel" (the "Development
Agreement"); and
WHEREAS, in order to expedite the process and assist DEVELOPER in completing the
project on time, REDEVELOPMENT COMMISSION and BOARD OF WORKS have agreed to
appoint DEVELOPER as construction manager and agent on behalf of REDEVELOPMENT
COMMISSION and BOARD OF WORKS for the purpose of managing the design, construction
and equipping of the Local Public Improvements (as defined in the Development Agreement).
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and responsibilities, REDEVELOPMENT COMMISSION, BOARD OF
WORKS and DEVELOPER agree as follows:
ARTICLE I. AUTHORITY TO EXECUTE AGREEMENT
Each party represents and warrants to the other party that:
1.1 The party is duly organized and existing under the laws of Indiana.
1.2 The party has the power, authority, and legal right to enter into and perform its
obligations set forth in this Agreement, and the execution, delivery, and performance
whereof, have been duly authorized by all necessary action.
1.3 This Agreement has been duly entered into and delivered and constitutes a legal, valid,
and binding obligation of the party, enforceable in accordance with its terms.
ARTICLE II. DEFINITIONS
2.1. Capitalized terms not otherwise defined herein shall have the meaning assigned to them
in the Development Agreement. In addition to terms defined elsewhere in this
Agreement, the following terms, for the purpose of this Agreement, shall have the
meanings set forth below:
"Construction Management Services" means the inspection of construction by the
General Contractors, the coordination of, progress payment review with respect to, and
approval of contracts for the General Contractors, and the administration of change
orders in the manner described by this Agreement, which responsibilities shall include
overseeing the delivery of the Local Public Improvements in substantial accordance with
the plans and specifications as contemplated by the Development Agreement.
"Funding Amount" means the funds supplied by REDEVELOPMENT COMMISSION in
the amount of$175,000.00 for construction of the Local Public Improvements.
"General Contractors" means the contractors, including but not limited to their respective
sub-contractors, vendors and suppliers, who shall construct and complete the Local
Public Improvements.
ARTICLE III. INTENT AND INTERPRETATION
3.1. The "Agreement", as referred to herein, shall mean this Agreement executed by
REDEVELOPMENT COMMISSION, BOARD OF WORKS and DEVELOPER, and
shall include any written supplemental agreement or modification entered into between
REDEVELOPMENT COMMISSION, BOARD OF WORKS and DEVELOPER, in
writing, after the date of this Agreement.
3.2. This Agreement shall include, and incorporate by reference, any provision, covenant or
condition required or provided by law or by regulation of any state or federal regulatory
or funding agency.
ARTICLE IV. CONSTRUCTION MANAGEMENT
4.1. CITY hereby designates DEVELOPER as CITY'S construction manager for the purpose
of granting to DEVELOPER, to the fullest extent permitted by law, the responsibility and
authority to act as the agent for and on behalf of CITY to provide the Construction
Management Services and granting unto DEVELOPER the sole and exclusive
responsibility and authority to manage the design, construction, and equipping by the
General Contractors of the Local Public Improvements in accordance with the terms set
forth herein.
4.2. CITY shall pay DEVELOPER as compensation for DEVELOPER'S services under this
Agreement a construction management fee in an amount equal to the net of the Funding
Amount less the actual amount spent for the Local Public Improvements.
4.3. CITY and DEVELOPER acknowledge and agree that the Local Public Improvements
will be designed and constructed in a manner consistent with applicable laws, including
but not limited to any applicable competitive bidding requirements. DEVELOPER, in
consultation with its design and other professionals, will prepare bid packages for the
solicitation of bids from independent contractors to construct the Local Public
Improvements. The bid packages shall include plans and specifications as contemplated
by the Development Agreement. Construction of the Local Public Improvements can
either be bid as one package or as several packages, as determined by DEVELOPER
consistent with applicable law. All bid packages shall be in a form consistent with other
bid packages and legal advertisements used by the BOARD OF WORKS, with such
modifications as DEVELOPER may request, subject to approval by BOARD OF
- 2 -
WORKS, which approval shall not be unreasonably withheld, conditioned or delayed.
DEVELOPER shall be responsible for scheduling and participating in pre-bid meetings
with potential bidders and responding to any questions submitted by bidders with regard
to the bid packages, and issuing any addenda to bid packages.
4.4. DEVELOPER, with the cooperation of CITY, shall be responsible for scheduling the
publication of legal advertisements and receipt of bids at regularly scheduled public
meetings of the BOARD OF WORKS. All bids shall be received and opened publicly,
pursuant to applicable law. BOARD OF WORKS shall deliver copies of all bid
proposals to DEVELOPER at or promptly after the public opening. DEVELOPER and
CITY shall review the proposals and make recommendations with the intent to award
contracts in accordance with applicable laws to the lowest responsible and responsive
bidder at a public meeting, provided such bid has been submitted in accordance with all
applicable laws and meets the requirements of the bidding documents. CITY, in
consultation with DEVELOPER, shall have the right to reject any and all bids not in
compliance with applicable law and CITY'S requirements.
4.5. DEVELOPER shall prepare the form of a construction contract(s) to be entered into in
connection with construction of the Local Public Improvements; provided, that such
construction contract(s) shall include all provisions required by applicable law and other
standard provisions included in construction contracts used by the BOARD OF WORKS
and which construction contracts shall be subject to review and approval by the BOARD
OF WORKS.
4.6. Notwithstanding anything contained in this Article 4, it is agreed that all procedures
followed in connection with the solicitation of bids, the awarding of contracts and all
related activities must conform to all requirements of all applicable laws. All provisions
of this Article 4 are conditioned upon the procedures described herein being consistent
with applicable laws, and shall be followed only if consistent therewith.
4.7. DEVELOPER hereby is granted and shall have, as agent for and on behalf of CITY, total
and exclusive responsibility and authority to perform the Construction Management
Services and to manage and supervise the design, construction and equipping of the Local
Public Improvements, except for the final award of contracts which shall be subject to
approval of BOARD OF WORKS, at the direction of DEVELOPER. DEVELOPER
acknowledges that the Local Public Improvements will be constructed in substantial
accordance to the plans and specifications as contemplated by the Development
Agreement. DEVELOPER shall schedule, coordinate and monitor the work of the design
professionals, engineers, consultants, General Contractors relating to the Local Public
Improvements, including but not limited to establishing the timing, sequence and phasing
of construction of the Local Public Improvements.
4.8. In accordance with applicable law, DEVELOPER shall have discretion and authority to
initiate the implementation of change orders. Any change order shall be subject to final
approval by BOARD OF WORKS. DEVELOPER shall be responsible for preparing and
processing any such change orders for review and approval by the BOARD OF WORKS.
- 3 -
4.9. DEVELOPER hereby agrees to provide notice to local contractors of all requests for bids,
of pre-bid meetings and of related meetings and information with respect to the Local
Public Improvements so as to use commercially reasonable efforts to employ qualified
local contractors and other related local labor during construction of the Local Public
Improvements. DEVELOPER agrees to meet with the business agents of all skilled trade
unions to give them the details of the Local Public Improvements prior to contracting for
the completion of the Local Public Improvements.
4.10. In awarding contracts for the purchase of work, labor, services, supplies, equipment,
materials, or any combination of the foregoing including, but not limited to, public works
contracts awarded under public bidding laws or other contracts in which public bids are
not required by law, the DEVELOPER agrees to exercise good faith efforts to obtain
participation by those contractors certified by the State of Indiana as a Minority Business
Enterprise ("MBE") or as a Women's Business Enterprise ("WBE") as a factor in
determining the lowest, responsible, responsive bidder.
ARTICLE V. REIMBURSEMENTS
5.1. REDEVELOPMENT COMMISSION will provide the Funding Amount in order to
timely pay for the Local Public Improvements.
As CITY'S construction manager, DEVELOPER agrees to review invoices presented for
payment by General Contractors. Such invoices shall be made through AIA Application
and Certificate for Payment where applicable and consistent with industry guidelines.
DEVELOPER will pay appropriate invoices and then forward copies of paid invoices to
REDEVELOPMENT COMMISSION at the following address:
South Bend Redevelopment Commission
227 W. Jefferson Boulevard
Suite 1400 S
South Bend, IN 46601
Attention: David Relos
5.2. No draw request or statement made pursuant to this Article shall exceed the estimated
amount in value of the work and services performed by a General Contractor without the
prior approval of both DEVELOPER and REDEVELOPMENT COMMISSION (such
approvals not to be unreasonably withheld, conditioned or delayed).
5.3. Draw Requests made by DEVELOPER, pursuant to the Disbursement Agreement, for
amounts paid to General Contractors shall be made on an as-needed or as-billed basis. A
written Draw Request shall be accompanied by a signed letter of transmittal from
DEVELOPER and include all customary lien waivers, which includes but is not limited
to lien waivers from the General Contractors, and other customary documentation. Such
payments will be made directly from REDEVELOPMENT COMMISSION to the
DEVELOPER within Thirty (30) days of receipt from DEVELOPER (and no such
payment shall be made without DEVELOPER'S written instruction).
-4 -
ARTICLE VI. SUCCESSORS AND ASSIGNS
6.1. CITY and DEVELOPER each binds itself and its agents, successors and assigns to the
other party of this Agreement and to the agents, successors and assigns of such other
party, in respect to the promises, representations, acknowledgements, covenants and
responsibilities contained in this Agreement.
6.2. Except as otherwise provided herein or in connection with a permitted assignment of the
Development Agreement, DEVELOPER shall not assign, sublet or transfer its interest in
this Agreement without the written consent of CITY.
6.3. Nothing herein shall be construed as creating any personal liability on the part of any
officer or agent of REDEVELOPMENT COMMISSION, BOARD OF WORKS or
DEVELOPER.
ARTICLE VII. NOTICES
When written notice is required by this Agreement, it shall be sufficiently given, in the
absence of a specific provision to the contrary, if sent by overnight delivery, United
States first-class mail, or hand delivery, in each case to the party to be in receipt thereof,
at the addresses below:
CITY South Bend Redevelopment Commission
227 W. Jefferson Boulevard
Suite 1400 S
South Bend, IN 46601
Attention: David Relos
with a copy to: Corporation Counsel's Office
227 W. Jefferson Blvd,
Suite 1200 S
South Bend, IN 46601
Attention: Cristal Brisco
DEVELOPER Equal Construction, LLC
4000 W. 106`h Street, Suite 125-146
Carmel, IN 46032
Attn: William J. Hollingsworth
ARTICLE VIII. CHOICE OF FORUM
The Parties agree that any litigation associated with or arising from this Agreement shall
be filed with a court of competent jurisdiction in St. Joseph County, State of Indiana.
- 5 -
ARTICLE IX. APPLICABLE LAWS
DEVELOPER agrees to comply with all federal, state, and local laws, rules and
regulations as are in effect from time to time and applicable to DEVELOPER in
performing work pursuant to this Agreement. This Agreement shall be governed by the
laws of the State of Indiana.
ARTICLE X. AMENDMENTS
This Agreement may be amended only by written instrument and signed by all parties
hereto.
ARTICLE XI. SEVERABILITY
In the event any provision of this Agreement is determined by a court of competent
jurisdiction or by the laws of the State of Indiana to be null and void, such provision shall
be stricken and all other provisions which can be given effect independently of the
stricken provision shall remain in full force and effect.
ARTICLE XII. INDEPENDENT CONTRACTOR STATUS
DEVELOPER expressly understands and agrees that it is an independent contractor and
that it is not an employee of CITY, and CITY is not to provide worker's compensation,
health or accident insurance coverage or indemnification agreement of any kind which
would cover DEVELOPER or its employees, if any, in and under the terms of this
Agreement.
ARTICLE XIII. WAIVER
CITY'S delay or inaction in pursuing its remedies set forth in this Agreement, or
available by law, shall not operate as a waiver of any of CITY'S rights or remedies.
DEVELOPER'S delay or inaction in pursuing its remedies set forth in this Agreement, or
available by law, shall not operate as a waiver of any of DEVELOPER'S rights or
remedies.
ARTICLE XIV. TERM OF AGREEMENT
This Agreement shall become effective upon execution hereof and shall expire on the
date on which the Local Public Improvements have been substantially completed and all
General Contractors have been paid.
ARTICLE XV. DEFAULT
15.1. DEVELOPER has committed an Event of Default if DEVELOPER fails to perform any
material term, covenant, condition or agreement contained in this Agreement for more
than 30 days after written notice thereof from REDEVELOPMENT COMMISSION, or
within such other period of time as is reasonably necessary to cure such failure, but only
if DEVELOPER has, within said 30 day period, provided REDEVELOPMENT
- 6 -
COMMISSION with assurances that DEVELOPER will cure the failure as soon as is
reasonably possible and DEVELOPER so commences and completes such cure.
15.2. CITY has committed an Event of Default if CITY fails to perform any material term,
covenant, condition or agreement contained in this Agreement for more than 30 days
after written notice thereof from DEVELOPER, or within such other period of time as is
reasonably necessary to cure such failure, but only if CITY has, within said 30 day
period, provided DEVELOPER with assurances that CITY will cure the failure as soon as
is reasonably possible and CITY so commences and completes such cure.
15.3. Upon the happening of an Event of Default, the non-defaulting party may, at its option
and with prior notice, institute any action, suit or other proceeding at law, in equity
(including any action to compel specific performance) or otherwise which it shall deem
necessary or proper for the protection of its interests under this Agreement.
- 7 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as follows:
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
Signature
Printed Name and Title
South Bend Redevelopment Commission
ATTEST:
Signature
Printed Name and Title
South Bend Redevelopment Commission
CITY OF SOUTH BEND, INDIANA
BOARD OF PUBLIC WORKS
Gary Gilot, President
Kathryn Roos, Member
David Relos, Member
Patrick Henthorn, Member
Brian Pawlowski, Member
ATTEST:
Linda Martin, Clerk
EQUAL CONSTRUCTION, LLC
By:
William J. Hollingsworth, Member
(Signature Page to Construction Management Agreement)
EXHIBIT G
FORM OF EASEMENT AGREEMENT FOR
SOUTH PARKING LOT PROPERTY
1
{20142670. DOCX}
PARKING EASEMENT AGREEMENT
THIS PARKING EASEMENT AGREEMENT (the "Agreement") is made this day
of , 2014, by and between Equal Holdings XIII, LLC, an Indiana limited
liability company (the "Grantor"), and Hoffman Hotel Apartments Housing Partners, L.P., an
Indiana limited partnership(the"Grantee").
WITNESSES THAT:
WHEREAS, Grantor is the owner of certain real estate located in St. Joseph County,
Indiana, and described on Exhibit A attached hereto and made a part hereof (the "Grantor
Property");
WHEREAS, Grantee is the owner of certain real estate located in St. Joseph County,
Indiana, and described on Exhibit B attached hereto and made a part hereof (the "Grantee
Property"); and
WHEREAS, Grantor desires to grant, and Grantee desires to obtain, an exclusive
easement in, on, under, over, through and across the Grantor Property, for a term of ninety (90)
years, for the common passage of persons or motor vehicles across the Grantor Property and for
parking passenger motor vehicles (the "Parking Lot").
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual agreements
contained herein, and other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, and the mutual undertakings hereinafter contained, the parties
do hereby agree as follows:
Easements
Section 1. Easement. Grantor hereby grants, creates, declares, makes and conveys to
Grantee, Grantee's successors, assigns, any tenants on the Grantee Property and their respective
licensees and invitees, or any of the agents or representatives of the foregoing, an exclusive
easement in, on, under, over, through and across the Grantor Property, for the common passage
of persons or motor vehicles across the Grantor Property and for parking passenger motor
vehicles (the "Easement"). The Easement is for the benefit of the Grantee Property.
Section 2. Term. The term of the Easement granted hereunder shall commence as of
the date hereof(the"Commencement Date") and shall run for a period of ninety (90) consecutive
years from the Commencement Date, unless sooner terminated in accordance with the terms
hereof.
Section 3. Maintenance and Repair Obligations. The owner of the Grantee Property,
its successors and/or assigns, as the "Maintenance Agent", shall be responsible for the repair,
replacement and/or maintenance of the Parking Lot and any other improvements or landscaping
constructed or installed on the Grantor Property, including but not limited to snow removal, at its
sole cost and expense.
{20142245.DOC}
The Maintenance Agent shall in its reasonable discretion determine the need for any such
repair, replacement and/or maintenance to the Parking Lot. In the event that the Maintenance
Agent has not repaired, replaced and/or maintained the Parking Lot as required under this
Agreement, the owner of the Grantor Property shall provide a written notice to the Maintenance
Agent at the address set forth herein for Grantee describing in detail the necessary repair,
replacement or maintenance and the estimated cost of such repair, replacement or maintenance,
and giving the Maintenance Agent thirty (30) days within which to commence and diligently
pursue completion of the repair, replacement or maintenance. In the event the Maintenance
Agent does not commence the requested repair, replacement and/or maintenance within such
thirty (30) day period and diligently pursue completion thereof, the owner of the Grantor
Property, its successors and/or assigns may complete the requested repair, replacement and/or
maintenance and seek reimbursement from the Maintenance Agent, which reimbursement
payment must be paid within fifteen (15) days after the receipt of such written request for
reimbursement.
Section 4. Grantor's Use of Grantor Property. Grantor shall have the right use the
Grantor Property for all purposes not inconsistent with the permitted uses thereof by Grantee, its
successors and assigns; provided, that, Grantor shall not construct or place or permit to be
constructed or placed, any structure or obstruction on the Grantor Property that will unreasonably
prevent or interfere with Grantee's use of the Grantor Property for the purposes permitted herein.
Section 5. Real Estate Taxes. The Maintenance Agent shall be responsible for the
payment of all real property taxes and assessments, of any nature whatsoever (the "Taxes"),
which are levied against the Grantor Property; provided that Grantor shall reimburse the
Maintenance Agent upon demand for such Taxes on a reasonably equitable basis to the extent
the Grantor Property is being used for purposes other than the permitted uses thereof by Grantee.
General Provisions
Section 6. Nature and Assignment of Easement. The terms "Grantee" and"Grantor"
shall refer to the owner of the Grantee Property and the Grantor Property, respectively, from time
to time, and their successors and assigns, including any holder of the fee simple estate of the
Grantee Property. The obligations and covenants contained herein shall run with the land and
shall be binding upon and shall inure to the benefit of the parties hereto and their successors,
assigns, invitees, tenants, customers and licensees. When any person or entity who is a Grantor
shall sell or assign its entire interest or estate in the Grantor Property, it shall have no further
liability for the performance thereafter of the obligations of the Grantor hereunder other than
those that accrued while it owned the Grantor Property. When any person or entity who is a
Grantee shall sell or assign its entire interest or estate in the Grantee Property, it shall have no
further liability for the performance thereafter of the obligations of the Grantee hereunder other
than those that accrued while it leased and occupied the Grantee Property.
Section 7. Indemnification. Grantee agrees to indemnify, defend, and hold Grantor
harmless from and against any and all liability, loss, claims, damages, penalties, fines, costs and
expenses, including, without limitation, reasonable attorneys' fees, and for any and all injury to
persons or damage to property, that arise from or out of a breach of its covenants and obligations
hereunder and/or its negligence or willful acts or omissions, except to the extent caused by the
{20142245.DOC} - 2 -
negligent or willful acts or omissions of Grantor or its licensees, suppliers, agents, customers or
invitees. Grantor agrees to indemnify, defend, and hold Grantee harmless from and against any
and all liability, loss, claims, damages, penalties, fines, costs and expenses, including, without
limitation, reasonable attorneys' fees, and for any and all injury to persons or damage to
property, that arise from or out of the presence of any hazardous material present on the Grantor
Property, unless introduced or released by Grantee or its agents,tenants or invitees, and that arise
from or out of a breach of its covenants and obligations hereunder and/or its negligence or willful
acts or omissions.
Section 8. Insurance. Grantor and Grantee each agree to maintain commercial
general liability insurance in a reasonable amount, insuring against any and all claims for bodily
injury, death or property damage occurring on, in or about the Grantor Property as a result of the
activities contemplated by this Agreement.
Section 9. Default. If Grantee defaults in or otherwise fails to perform any of its
obligations set forth in this Agreement, and fails to cure any such default or failure within ten
(10) business days after receipt of written notice from Grantor (except in the case of an
emergency which shall be cured as soon as reasonably practicable), then Grantor may cure such
default at its expense and collect from Grantee the reasonable costs incurred in curing such
default including reasonable attorney's fees or may pursue any applicable injunctive or equitable
remedies. Grantor may not terminate this Agreement. Any reimbursement for curing a default
shall be due and payable ten (10) days after the written demand by Grantor, which demand shall
include paid invoices or other evidence of payment or expense. Notwithstanding the foregoing,
if the default is of such a nature that it cannot reasonably be cured within ten (10) business days,
then, so long as the Grantee commences the cure within said 10-business day period, and
thereafter diligently pursues the cure to completion, the cure period shall be extended for such
periods as may be reasonable under the circumstances, not to exceed ninety (90) days. All such
expenses shall accrue interest at the rate of the greater of (i) 12% per annum or (ii)the then
current prime rate listed by the Wall Street Journal plus 4%.
Section 10. Severability. The invalidity or unenforceability of any covenant,
condition, term or provision in this Agreement shall not affect the validity and enforceability of
any other covenant, condition,term or provision.
Section 11. Notices. All notices, requests, demands, consents and other
communications required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly and properly given on the date of service if delivered via hand
delivery, or on the first business day following deposit with a nationally recognized overnight
courier service (e.g., FedEx),postage prepaid, in any event addressed appropriately as follows:
If to Grantor: Equal Holdings XIII, LLC
4000 West 106th Street, Suite 125-146
Carmel, Indiana 46032
Attn: William J. Hollingsworth
{20142245.DOC} - 3 -
•
If to Grantee: Hoffman Hotel Apartments Housing Partners, L.P.
4000 West 106th Street, Suite 125-146
Cannel, Indiana 46032
Attn: William J. Hollingsworth
With a copy to: CREA SLP, LLC
30 South Meridian Street, Suite 400
Indianapolis, Indiana 46204
Attn: Asset Management Group
Either party may change its address for purposes of this Section by giving the other party
written notice of the new address in the manner set forth above.
Section 12. Governing Law. The conditions, terms and provisions of this Agreement
shall be governed by and construed in accordance with the laws of the State of Indiana.
Section 13. Construction. The Section headings are included only for convenience,
and shall not be construed to modify or affect the covenants, terms or provisions of any Section.
Section 14. Attorney Fees. In the event that it shall be necessary for either party to
retain an attorney to enforce the obligations of the other party hereunder, the prevailing party
shall be entitled to recover from the other party all reasonable attorneys' and paralegal fees and
expenses incurred in connection therewith.
Section 15. Assignability. This Agreement may be assigned by Grantee, only to a
successor in interest as owner of the Grantee Property or to a mortgagee in possession of the
Grantee Property and to no other party. The rights and obligations hereunder shall run with the
land and be binding on the owners of the Grantor Property and shall benefit the owners of the
Grantee Property. Grantee will not permit use of the Grantor Property, or any part thereof,
except in strict compliance with the provisions of this Agreement. The provisions of this
Agreement are for the benefit of and will be applicable to Grantee and its successors and assigns.
Section 16. Counterparts. This Agreement may be signed in counterparts, each of
which will be deemed an original, but all of which when taken together will constitute one and
the same instrument.
Section 17. Last Deed of Record. The most recent deed of record relative to the
Grantor Property is recorded as Instrument Number in the office of the
Recorder of St. Joseph County, Indiana.
Section 18. Title. Grantor hereby covenants that it is the sole owner in fee simple of
the Grantor Property, is lawfully seized thereof and has a good right to grant and convey the
easements herein; that the Grantor Property is free from any and all liens and encumbrances,
except for real estate taxes and assessments not yet due and payable; and that Grantor guarantees
the quiet possession by Grantee, its successors and assigns and will warrant and defend
Grantee's title to the easements herein against all claims. Grantor represents that execution and
delivery of this Agreement and performance by the Grantor of its obligations pursuant to this
(20142245.DOC) -4 -
Agreement will not violate any agreement, instrument, order,judgment, decree, permit, approval,
license, law, regulation or ordinance to which Grantor is a party or by which Grantor or its assets
or the Grantor Property is bound or which otherwise affect the Grantor Property. Grantor shall
indemnify, defend and hold Grantee and its successors and assigns harmless from and against
any and all claims, damages, liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and any consequential damages, arising from a breach of the
representations, warranties, guarantees or covenants of Grantor contained in this Agreement.
Section 19. Authority. The undersigned person executing this Agreement on behalf of
Grantor represents and certifies that he has been fully empowered to execute and deliver this
Agreement; that Grantor has full capacity to convey the easements and the rights herein; and all
necessary action for the making of such conveyance has been taken and done. The undersigned
person executing this Agreement on behalf of Grantee represents and certifies that he has been
fully empowered to execute and deliver this Agreement; and that Grantee has full capacity to
convey the easements and the rights herein; and all necessary action for the making of such
conveyance has been taken and done.
Section 20. Amendment. No amendments, modifications or revisions shall be made to
this Agreement without the prior written consent of both Grantor and Grantee, and without the
prior written consent of The South Bend Redevelopment Commission (the "City") for so long as
the City holds a purchase option with respect to the Grantor Property pursuant to that certain
Option Agreement dated September , 2014, by and between Grantor and the City.
Section 21. Termination. Grantee may terminate this Agreement and all rights of
Grantee hereunder upon thirty(30) days written notice.
Section 22. Recitals. The recitals set forth above and the exhibits attached hereto are
hereby incorporated herein.
Section 23. No Waiver. No waiver of any default of any obligation by any party will
be implied from the failure of the other party to take any action with respect to a default.
Section 24. No Agency. Nothing in this Agreement will be deemed or construed by
either party or by any third person to create the relationship of principal and agent or of limited
or general partners or of joint ventures or of any other association between the parties or between
any party or third party.
Section 25. Grantee's Acceptance. The grantee of either the Grantor Property or the
Grantee Property or any portion thereof, by acceptance of a deed conveying title to such property
or acceptance of a lease for such property, whether from an original party or from a subsequent
owner, will accept the deed or lease subject to this Agreement. By acceptance, such grantee and
its successors and assigns agree to assume the burdens and obligations of this Agreement and
comply with the terms of this Agreement.
Section 26. Parking Garage. Notwithstanding the foregoing, Grantor, or its successors
and/or assigns, shall have the right to develop a multi-story parking garage on the Grantor
Property at its sole cost and expense (the "Garage"). In the event Grantor, or its successors
and/or assigns, does construct the Garage, Grantor, or its successors and/or assigns, shall (i)upon
{20142245.DOC} - 5 -
completion of construction of the Garage, provide Grantee, or its successors and/or assigns, with
a number of parking spaces within the first three (3) levels of the Garage at least equal to the
number of parking spaces then existing on the Grantor Property, and such additional number of
parking spaces within the first three (3) levels of the Garage as Grantee shall reasonably require
to satisfy its parking requirements with respect to the Grantee Property, as determined by
Grantee; provided, however that the total number of such parking spaces provided in the Garage
shall not exceed forty-eight (48); (ii) during the construction of the Garage, provide Grantee, or
its successors and/or assigns, with a number of temporary replacement surface or garage parking
spaces within two (2) blocks of the Grantor Property at least equal to the number of parking
spaces then existing on the Grantor Property, and such additional number of temporary
replacement surface or garage parking spaces within two (2) blocks of the Grantor Property as
Grantee shall reasonably require to satisfy its parking requirements with respect to the Grantee
Property, as determined by Grantee; provided, however that the total number of such temporary
replacement parking spaces shall not exceed forty-eight (48); and (iii) become the Maintenance
Agent for all purposes under this Agreement. In the event Grantor, or its successors and/or
assigns, does construct the Garage, the term "Parking Lot" shall be replaced with "Garage"
wherever it appears in this Agreement, and this Agreement shall survive and remain effective in
all other respects, except as may otherwise be modified or amended in accordance herewith.
[ signatures begin on following page]
{20142245.DOC) - 6 -
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day,
month and year first written above.
"GRANTOR"
Equal Holdings XIII, LLC,
an Indiana limited liability company
By:
William J. Hollingsworth, Member
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared
William J. Hollingsworth, as Member of Equal Holdings XIII, LLC, an Indiana limited liability
company, who acknowledged the execution of the foregoing Agreement, and who, having been
duly sworn, stated that any representations therein contained are true.
Witness my hand and Notarial Seal this day of , 2014.
(signature)
(printed name) Notary Public
My Commission Expires: County of Residence:
(20142245.DOC) - 7 -
"GRANTEE"
Hoffman Hotel Apartments Housing Partners, L.P.,
an Indiana limited partnership
By: Equal Holdings XII, LLC,
its general partner
By:
William J. Hollingsworth, Member
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared
William J. Hollingsworth, as Member of Equal Holdings XII, LLC, as general partner of
Hoffman Hotel Apartments Housing Partners, L.P., an Indiana limited partnership, who
acknowledged the execution of the foregoing Agreement, and who, having been duly sworn,
stated that any representations therein contained are true.
Witness my hand and Notarial Seal this day of , 2014.
(signature)
(printed name) Notary Public
My Commission Expires: County of Residence:
This instrument was prepared by Matthew G.Nolley,Esq.,KUHL&GRANT LLP,55 Monument Circle,Suite 201,Indianapolis,Indiana 46204;
Telephone(317)423-9900.
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.Matthew G.Nolley
{20142245.DOC} - 8 -
EXHIBIT H
FORM OF ACCESS EASEMENT AGREEMENT FOR
CORNER PARKING LOT
{20142670. DOCX}
1
ACCESS EASEMENT AGREEMENT
THIS ACCESS EASEMENT AGREEMENT (the "Agreement") is made this day of
, 2014, by and between Equal Holdings XIII, LLC, an Indiana limited liability
company (the "Grantor"), and Equal Holdings XIII, LLC, an Indiana limited liability company
(the"Grantee").
WITNESSES THAT:
WHEREAS, Grantor is the owner of certain real estate located in St. Joseph County,
Indiana, and described on Exhibit A attached hereto and made a part hereof (the "Grantor
Property");
WHEREAS, Grantee is the owner of certain real estate located in St. Joseph County,
Indiana, and described on Exhibit B attached hereto and made a part hereof (the "Grantee
Property"); and
WHEREAS, Grantor desires to grant, and Grantee desires to obtain, a perpetual, non-
exclusive easement in, on, under, over, through and across the Grantor Property, for the common
passage of persons or motor vehicles, over the areas designated for access, ingress and egress
from the Grantee Property to the public right-of-ways located adjacent to the Grantor Property,
as such areas may be modified from time to time and whether such areas provide pedestrian or
vehicular access, ingress and egress (the"Access Ways").
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual agreements
contained herein, and other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, and the mutual undertakings hereinafter contained, the parties
do hereby agree as follows:
Easements
Section 1. Easement. Grantor hereby grants, creates, declares, makes and conveys to
Grantee, Grantee's successors, assigns, any tenants on the Grantee Property, any party benefitted
by any easement with respect to the Grantee Property, and their respective licensees and invitees,
or any of the agents or representatives of the foregoing, a perpetual, non-exclusive easement in,
on, under, over, through and across the Grantor Property, for the common passage of persons or
motor vehicles, over the Access Ways (the "Easement"). The Easement is for the benefit of the
Grantee Property.
Section 2. Maintenance and Repair Obligations. The owner of the Grantor Property,
its successors and/or assigns, as the "Maintenance Agent", shall be responsible for the repair,
replacement and/or maintenance of the Access Ways and any other improvements or landscaping
constructed or installed on the Grantor Property, including but not limited to snow removal, at its
sole cost and expense.
The Maintenance Agent shall in its reasonable discretion determine the need for any such
repair, replacement and/or maintenance to the Access Ways. In the event that the Maintenance
Agent has not repaired, replaced and/or maintained the Access Ways as required under this
{20142247.DOC}
Agreement, the owner of the Grantee Property shall provide a written notice to the Maintenance
Agent at the address set forth herein for Grantee describing in detail the necessary repair,
replacement or maintenance and the estimated cost of such repair, replacement or maintenance,
and giving the Maintenance Agent thirty (30) days within which to commence and diligently
pursue completion of the repair, replacement or maintenance. In the event the Maintenance
Agent does not commence the requested repair, replacement and/or maintenance within such
thirty (30) day period and diligently pursue completion thereof, the owner of the Grantee
Property, its successors and/or assigns may complete the requested repair, replacement and/or
maintenance and seek reimbursement from the Maintenance Agent, which reimbursement
payment must be paid within fifteen (15) days after the receipt of such written request for
reimbursement.
Section 3. Grantor's Use of Grantor Property. Grantor shall have the right use the
Grantor Property for all purposes not inconsistent with the permitted uses thereof by Grantee, its
successors and assigns; provided, that, Grantor shall not construct or place or permit to be
constructed or placed, any structure or obstruction on the Grantor Property that will unreasonably
prevent or interfere with Grantee's use of the Grantor Property for the purposes permitted herein.
Section 4. Real Estate Taxes. The Maintenance Agent shall be responsible for the
payment of all real property taxes and assessments, of any nature whatsoever (the "Taxes"),
which are levied against the Grantor Property; provided that Grantor shall reimburse the
Maintenance Agent upon demand for such Taxes on a reasonably equitable basis to the extent
the Grantor Property is being used for purposes other than the permitted uses thereof by Grantee.
General Provisions
Section 5. Nature and Assignment of Easement. The terms "Grantee" and "Grantor"
shall refer to the owner of the Grantee Property and the Grantor Property, respectively, from time
to time, and their successors and assigns, including any holder of the fee simple estate of the
Grantee Property. The obligations and covenants contained herein shall run with the land and
shall be binding upon and shall inure to the benefit of the parties hereto and their successors,
assigns, invitees, tenants, customers and licensees. When any person or entity who is a Grantor
shall sell or assign its entire interest or estate in the Grantor Property, it shall have no further
liability for the performance thereafter of the obligations of the Grantor hereunder other than
those that accrued while it owned the Grantor Property. When any person or entity who is a
Grantee shall sell or assign its entire interest or estate in the Grantee Property, it shall have no
g
further liability for the performance thereafter of the obligations of the Grantee hereunder other
than those that accrued while it leased and occupied the Grantee Property.
Section 6. Indemnification. Grantee agrees to indemnify, defend, and hold Grantor
harmless from and against any and all liability, loss, claims, damages, penalties, fines, costs and
expenses, including, without limitation, reasonable attorneys' fees, and for any and all injury to
persons or damage to property, that arise from or out of a breach of its covenants and obligations
hereunder and/or its negligence or willful acts or omissions, except to the extent caused by the
negligent or willful acts or omissions of Grantor or its licensees, suppliers, agents, customers or
invitees. Grantor agrees to indemnify, defend, and hold Grantee harmless from and against any
and all liability, loss, claims, damages, penalties, fines, costs and expenses, including, without
{20142247.DOC} - 2 -
limitation, reasonable attorneys' fees, and for any and all injury to persons or damage to
property, that arise from or out of the presence of any hazardous material present on the Grantor
Property, unless introduced or released by Grantee or its agents,tenants or invitees, and that arise
from or out of a breach of its covenants and obligations hereunder and/or its negligence or willful
acts or omissions.
Section 7. Insurance. Grantor and Grantee each agree to maintain commercial
general liability insurance in a reasonable amount, insuring against any and all claims for bodily
injury, death or property damage occurring on, in or about the Grantor Property as a result of the
activities contemplated by this Agreement.
Section 8. Default. If Grantee defaults in or otherwise fails to perform any of its
obligations set forth in this Agreement, and fails to cure any such default or failure within ten
(10) business days after receipt of written notice from Grantor (except in the case of an
emergency which shall be cured as soon as reasonably practicable), then Grantor may cure such
default at its expense and collect from Grantee the reasonable costs incurred in curing such
default including reasonable attorney's fees or may pursue any applicable injunctive or equitable
remedies. Grantor may not terminate this Agreement. Any reimbursement for curing a default
shall be due and payable ten (10) days after the written demand by Grantor, which demand shall
include paid invoices or other evidence of payment or expense. Notwithstanding the foregoing,
if the default is of such a nature that it cannot reasonably be cured within ten (10) business days,
then, so long as the Grantee commences the cure within said 10-business day period, and
thereafter diligently pursues the cure to completion, the cure period shall be extended for such
periods as may be reasonable under the circumstances, not to exceed ninety (90) days. All such
expenses shall accrue interest at the rate of the greater of (i) 12% per annum or (ii)the then
current prime rate listed by the Wall Street Journal plus 4%.
Section 9. Severability. The invalidity or unenforceability of any covenant,
condition, term or provision in this Agreement shall not affect the validity and enforceability of
any other covenant, condition,term or provision.
Section 10. Notices. All notices, requests, demands, consents and other
communications required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly and properly given on the date of service if delivered via hand
delivery, or on the first business day following deposit with a nationally recognized overnight
courier service(e.g., FedEx),postage prepaid, in any event addressed appropriately as follows:
If to Grantor: Equal Holdings XIII, LLC
4000 West 106th Street, Suite 125-146
Cannel, Indiana 46032
Attn: William J. Hollingsworth
If to Grantee: Equal Holdings XIII, LLC
4000 West 106th Street, Suite 125-146
Cannel, Indiana 46032
Attn: William J. Hollingsworth
{20142247.DOC} - 3 -
Either party may change its address for purposes of this Section by giving the other party
written notice of the new address in the manner set forth above.
Section 11. Governing Law. The conditions, terms and provisions of this Agreement
shall be governed by and construed in accordance with the laws of the State of Indiana.
Section 12. Construction. The Section headings are included only for convenience,
and shall not be construed to modify or affect the covenants,terms or provisions of any Section.
Section 13. Attorney Fees. In the event that it shall be necessary for either party to
retain an attorney to enforce the obligations of the other party hereunder, the prevailing party
shall be entitled to recover from the other party all reasonable attorneys' and paralegal fees and
expenses incurred in connection therewith.
Section 14. Assignability. This Agreement may be assigned by Grantee, only to a
successor in interest as owner of the Grantee Property or to a mortgagee in possession of the
Grantee Property and to no other party. The rights and obligations hereunder shall run with the
land and be binding on the owners of the Grantor Property and shall benefit the owners of the
Grantee Property. Grantee will not permit use of the Grantor Property, or any part thereof,
except in strict compliance with the provisions of this Agreement. The provisions of this
Agreement are for the benefit of and will be applicable to Grantee and its successors and assigns.
Section 15. Counterparts. This Agreement may be signed in counterparts, each of
which will be deemed an original, but all of which when taken together will constitute one and
the same instrument.
Section 16. Last Deed of Record. The most recent deed of record relative to the
Grantor Property is recorded as Instrument Number in the office of the
Recorder of St. Joseph County, Indiana.
Section 17. Title. Grantor hereby covenants that it is the sole owner in fee simple of
the Grantor Property, is lawfully seized thereof and has a good right to grant and convey the
easements herein; that the Grantor Property is free from any and all liens and encumbrances,
except for real estate taxes and assessments not yet due and payable; and that Grantor guarantees
the quiet possession by Grantee, its successors and assigns and will warrant and defend
Grantee's title to the easements herein against all claims. Grantor represents that execution and
delivery of this Agreement and performance by the Grantor of its obligations pursuant to this
Agreement will not violate any agreement, instrument, order,judgment, decree, permit, approval,
license, law, regulation or ordinance to which Grantor is a party or by which Grantor or its assets
or the Grantor Property is bound or which otherwise affect the Grantor Property. Grantor shall
indemnify, defend and hold Grantee and its successors and assigns harmless from and against
any and all claims, damages, liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and any consequential damages, arising from a breach of the
representations, warranties, guarantees or covenants of Grantor contained in this Agreement.
Section 18. Authority. The undersigned person executing this Agreement on behalf of
Grantor represents and certifies that he has been fully empowered to execute and deliver this
Agreement; that Grantor has full capacity to convey the easements and the rights herein; and all
(20142247.DOC) -4 -
necessary action for the making of such conveyance has been taken and done. The undersigned
person executing this Agreement on behalf of Grantee represents and certifies that he has been
fully empowered to execute and deliver this Agreement; and that Grantee has full capacity to
convey the easements and the rights herein; and all necessary action for the making of such
conveyance has been taken and done.
Section 19. Amendment. No amendments, modifications or revisions shall be made to
this Agreement without the prior written consent of both Grantor and Grantee, and without the
prior written consent of The South Bend Redevelopment Commission(the "City") for so long as
the City holds a purchase option with respect to the Grantor Property pursuant to that certain
Option Agreement dated September , 2014, by and between Grantor and the City.
Section 20. Termination. Grantee may terminate this Agreement and all rights of
Grantee hereunder upon thirty(30) days written notice.
Section 21. Recitals. The recitals set forth above and the exhibits attached hereto are
hereby incorporated herein.
Section 22. No Waiver. No waiver of any default of any obligation by any party will
be implied from the failure of the other party to take any action with respect to a default.
Section 23. No Agency. Nothing in this Agreement will be deemed or construed by
either party or by any third person to create the relationship of principal and agent or of limited
or general partners or of joint ventures or of any other association between the parties or between
any party or third party.
Section 24. Grantee's Acceptance. The grantee of either the Grantor Property or the
Grantee Property or any portion thereof, by acceptance of a deed conveying title to such property
or acceptance of a lease for such property, whether from an original party or from a subsequent
owner, will accept the deed or lease subject to this Agreement. By acceptance, such grantee and
its successors and assigns agree to assume the burdens and obligations of this Agreement and
comply with the terms of this Agreement.
Section 25. Non-Merger. Notwithstanding that the same party owns the Grantor
Property and the Grantee Property, the easement rights granted hereunder shall not merge with
the fee simple ownership rights, unless the owner(s) of the Grantor Property and the Grantee
Property file a termination of this Declaration.
[ signatures begin on following page ]
{20142247.DOC} - 5 -
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day,
month and year first written above.
"GRANTOR"
Equal Holdings XIII, LLC,
an Indiana limited liability company
By:
William J. Hollingsworth, Member
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared
William J. Hollingsworth, as Member of Equal Holdings XIII, LLC, an Indiana limited liability
company, who acknowledged the execution of the foregoing Agreement, and who, having been
duly sworn, stated that any representations therein contained are true.
Witness my hand and Notarial Seal this day of , 2014.
si
� gn ature
)
(printed name) Notary Public
My Commission Expires: County of Residence:
(20142247.DOC) - 6 -
"GRANTEE"
Equal Holdings XIII, LLC,
an Indiana limited liability company
By:
William J. Hollingsworth, Member
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared
William J. Hollingsworth, as Member of Equal Holdings XIII, LLC, an Indiana limited liability
company, who acknowledged the execution of the foregoing Agreement, and who, having been
duly sworn, stated that any representations therein contained are true.
Witness my hand and Notarial Seal this day of , 2014.
(signature)
(printed name) Notary Public
My Commission Expires: County of Residence:
This instrument was prepared by Matthew G.Nolley,Esq.,KUHL&GRANT LLP,55 Monument Circle,Suite 201,Indianapolis,Indiana 46204;
Telephone(317)423-9900.
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.Matthew G.Nolley
(20142247.DOC} - 7 -
EXHIBIT I
FORM OF PURCHASE OPTION AGREEMENT FOR
SOUTH PARKING LOT PROPERTY
{20142670. DOCX}
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") is entered into as of this day of
September, 2014 by and between Equal Holdings XIII, LLC, an Indiana limited liability company
(the"Seller"), and the South Bend Redevelopment Commission,governing body of the South Bend
Department of Redevelopment(together with its nominee or assignee,the"Buyer").
1. Grant of Option. In consideration of Buyer's obligations under the Development
Agreement (as defined below), Seller hereby grants to Buyer the exclusive right and option (the
"Option") to purchase all of Seller's rights, titles, and interests in and to the real estate legally
described in Exhibit A attached hereto, and all improvements located thereon (the "Option
Property"),on the terms and conditions set forth herein. Buyer may exercise the Option by delivery
to Seller of written notice of its election to purchase (the "Option Notice") during the time period
commencing upon the earlier to occur of (A) the completion of both (i) the Local Public
Improvements (as defined in the Development Agreement) and (ii) the construction of the Project
(as defined in the Development Agreement) or (B) July 1, 2016 (such date referred to herein as the
"Option Open Date"), and ending at 11:59 p.m. ET on July 1, 2036 (the "Option Exercise
Deadline"). If.Buyer fails to timely give the Option Notice by the Option Exercise Deadline, the
Option shall terminate and be forever null and void. If Buyer timely gives the Option Notice by the
Option Exercise Deadline,then, subject to the terms and provisions hereof, Seller shall be obligated
to sell the Option Property to Buyer and Buyer shall be obligated to purchase the Option Property
from Seller; and the closing of the purchase of the Option Property (the"Closing") shall take place
within sixty(60) days of Seller's receipt of the Option Notice at such time as mutually agreed upon
by Seller and Buyer(the"Closing Date").
For purposes of this Agreement, the "Development Agreement" shall mean that certain
Development Agreement by and between the South Bend Redevelopment Commission, governing
body of the South Bend Department of Redevelopment, and Hoffman Hotel Apartment Housing
Partners,L.P.,an Indiana limited partnership,dated September ,2014.
2. Purchase Price. If the Option is exercised, the purchase price for the Option
Property(the"Purchase Price")shall be One and No/100 Dollars($1.00).
3. Closing. If the Option is exercised,the Closing shall take place on the Closing Date
at such location within the City of South Bend, Indiana, as may be selected by the Buyer and Seller
by mutual agreement. At the Closing, Seller shall convey the Option Property to Buyer free and
clear of all encumbrances other than the Easement Agreement (as defined in the Development
Agreement), and Buyer shall pay to Seller the Purchase Price determined in accordance with
Section 2.
4. Documents to be Delivered by Seller. At the Closing, the Buyer shall receive all of
the following, to be in form and substance reasonably satisfactory to Buyer and where the delivery
requires execution by the Seller, to be duly executed, attested, and, where necessary, acknowledged
by the Seller:
{20142674.DOC}
(a) a limited warranty deed executed by the Seller for the Option Property subject to
real estate taxes not yet due and payable and the Easement Agreement(as defined in
the Development Agreement);
(c) a closing statement executed by the Seller setting forth all proration and credits;
(d) a vendor's affidavit executed by Seller in a form acceptable to the title company
sufficient to remove all non-survey standard exceptions from the Title Policy;
(e) an affidavit stating that Seller is not a"foreign person",as such term is used in§1445
of the Internal Revenue Code; and
(f) such other documents and instruments and other deliveries as are customary for
delivery by sellers in similar transactions, including but not limited to a Disclosure of
Sales Information Form as required by the State of Indiana.
5. Taxes. Seller shall be responsible for any all real estate taxes assessed against the
Option Property up to and including the Closing Date, even if any such real estate taxes are not yet
due and payable.
6. Expenses. Buyer shall pay for (a) all expenses related to the premium for any title
policy, including extended coverage and any endorsements, (b) costs of any survey, (c) any escrow
closing fees, (d) the cost of recording any documents, and (e) Buyer's own legal fees. Seller shall
be responsible for Seller's own legal fees.
7. Waiver. Each party hereto may, at any time or times, at its election, waive any of
the conditions to its obligations hereunder by a written waiver expressly detailing the extent of such
waiver(and no other waiver or alleged waiver by such party shall be effective for any purpose). No
such waiver shall reduce the rights or remedies of such party by reason of any breach by the other
party or parties of any of its or their obligations hereunder.
8. No Third Party Benefits. This Agreement is made for the sole benefit of Buyer and
Seller and their respective successors, and, as to the Buyer, its nominee and assigns, and no other
person or persons shall have any right or remedy or other legal interest of any kind under or by
reason of this Agreement. This Agreement shall be assignable by Seller, without Buyer's consent,
and upon such assignee's express assumption of Seller's obligations and liabilities under this
Agreement, Seller shall be released therefrom.
9. Integration; Interpretation. This Agreement contains the entire agreement between
the parties respecting the matters herein set forth and supersedes all prior agreements between the
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parties hereto respecting such matters. The provisions of this Agreement may not be amended,
changed or modified orally,but only by an agreement in writing signed by the Buyer and Seller.
10. Notices. All notices and other communications which either party is required or
desires to send to the other shall be in writing and shall be sent by personal delivery or courier(such
as Federal Express), or registered or certified mail, postage prepaid, return receipt requested.
Notices and other communications shall be deemed to have been given on actual receipt if
personally delivered or sent by courier, or three business days after the date of mailing if mailed.
Notices shall be sent to the addresses set forth below each party's respective signature.
11. Attorneys' Fees. In the event either party institutes legal proceedings to enforce its
rights hereunder, the prevailing party in such litigation shall be paid all reasonable expenses of the
litigation by the losing party,including its reasonable attorneys' fees.
12. Memorandum. Seller shall record a memorandum of this Agreement in the real
estate records of St. Joseph County, Indiana within a reasonable time following the execution of
this Agreement. Buyer and Seller shall execute a termination of this Agreement in recordable form
(i) upon the Closing or (ii) after the Option has expired if it has not been exercised in accordance
with the terms hereof
13. Time of Essence. Time is of the essence of this Agreement.
14. Governing Law. This Agreement shall be interpreted and enforced according to the
laws of the State of Indiana.
(signatures to follow)
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day
and year first above written.
SELLER:
Hoffman Hotel Apartments Housing Partners,L.P.,
an Indiana limited partnership
By: Equal Holdings XII,LLC,
an Indiana limited liability company,
its general partner
By:
William J. Hollingsworth, Member
Address:
Hoffman Hotel Apartment Housing Partners, LP
4000 W. 106t Street, Suite 125-146
Cannel, IN 46032
BUYER:
City of South Bend,Department of Redevelopment
By:
Printed:
Title:
South Bend Redevelopment Commission
Address:
The South Bend Redevelopment Commission
227 W. Jefferson Blvd., Suite 1400S
South Bend,IN 46601
Attn: Chris Fielding
With a copy to:
Office of the Corporation Counsel
227 W. Jefferson Blvd, Suite 1200S
South Bend,IN 46601
Attn: Cristal Brisco,Esq.
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EXHIBIT A
LEGAL DESCRIPTION
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