HomeMy WebLinkAbout6B(3) Dev Agr LaSalle Hotel 1
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DEVELOPMENT AGREEMENT
by and between
THE SOUTH BEND REDEVELOPMENT COMMISSION,
and
REALAMERICA DEVELOPMENT LLC
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'FABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 2
SECTION 2. EFFECTIVE DATE, INTERPRETATION,TERM AND RECITALS 3
SECTION 3. PURCHASE OF LASALLE PROPERTY AND GRANT OF
EASEMENT. 3
SECTION 4. DEVELOPER'S OBLIGATIONS. 6
SECTION 5. COMMISSION'S OBLIGATIONS. 8
SECTION 6. ADDITIONAL DOCUMENTS AND AGREEMENTS. 10
SECTION 7. COOPERATION IN THE EVENT OF LEGAL CHALLENGE. 12
SECTION 8. DEFAULT. 12
SECTION 9. NO AGENCY, JOINT VENTURE OR PARTNERSHIP; CONFLICT
OF INTEREST, INDEMNITY 13
SECTION 10. MISCELLANEOUS 14
SECTION 11. AMENDMENTS. 17
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SCHEDULE OF EXHIBITS
Exhibit
A-1 The LaSalle Property
A-1 The Support Parcel
A-2 The Parking Lot
B The LaSalle Site Plan
C Description of Local Public Improvements
D Description of Private Investment and Schedule of Substantial Completion
E Minimum Insurance Amounts
F Form of Construction Management Agreement
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT, made on November _, 2014, is by and
between the South Bend Redevelopment Commission, governing body of the South Bend
Department of Redevelopment (the "Commission") and RealAmerica Development LLC, an
Indiana limited liability company (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("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 "LaSalle 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
LaSalle Property into approximately 67 apartment units and retail and restaurant/event space, to
be known as "Tire LaSalle" (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 and contemplates development
of the area consistent with the Project,to be located in the Area; and
WHEREAS,the Conunission 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
1 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,
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
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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
Ipursuant to Section 3.5 hereof.
1.5 Funding Amount. Funding Amount shall mean an amount not to exceed
$1,800,000 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
'J Improvements.
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1.6 LaSalle Property. The LaSalle Property means the property more particularly
described in Exhibit A-1, together with all improvements thereon and all easements, rights,
1 licenses and other interests appurtenant thereto.
I 1.7 Local Public Improvements. Local Public Improvements means the local public
i improvements in support of the Project in the Area, including: roof, waste chute, exterior,facade,
elevator and 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 Parking Lot. Parking Lot means the property more particularly described in
Exhibit A-2.
1.9 Private Investment. Private Investment means the sum of the construction and i,
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
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the Assessed Value of the improvements comprising the LaSalle Property. The Private Investment
is described on Exhibit D attached hereto and incorporated herein.
1.10 Project Site. Project Site means the LaSalle Property and Support Parcel,together.
1.11 Substantial Completion. Substantial Completion means, with respect to the
Project,the Developer's receipt of a certificate of occupancy or its local equivalent issued by the
local governmental authority.
1.12 Support Parcel. Support Parcel means the property immediately adjacent to the
LaSalle Property, as more particularly described in Exhibit A-1, together with all improvements
thereon and all easements, rights, licenses and other interests appurtenant thereto.
SECTION 2. EFFECTIVE DATE, INTERPRETATION,TERM AND RECITALS.
1 2.1 Effective Date. This Agreement shall be effective as of the date first written above
(the "Effective Date").
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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
j " or "Article " shall be deemed to refer to the Section or Article of this Agreement
1 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.
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(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 tins
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. c.
2.4 Recitals. The Recitals set forth above are a part of this Agreement for all purposes.
SECTION 3. PURCHASE OF LASALLE PROPERTY AND GRANT OF EASEMENT.
3.1 Purchase. Subject to all of the terms,covenants and conditions of this Agreement,
at Closing(as defined below)the Commission shall convey to Developer the LaSalle Property for
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One Dollar and 00/100 cents ($1.00) and other valuable consideration, for the purpose of
redevelopment of the LaSalle Property in order to serve the purposes of the Act.
3.2 Form of Deed. The Commission shall convey to Developer title to the LaSalle
Property by Quitclaim Deed(the"Deed")at Closing. In addition to the other conditions,covenants
and restrictions in this Agreement, such conveyance and title shall be subject to:
(a) Applicable building codes and zoning ordinances.
(b) Any and all other covenants, restrictions, easements and reservations of
record ("Restrictions").
At Closing, the Parties will sign such other customary documents or instruments as Commission,
Developer or the Developer's title insurer may reasonably request in connection with the Closing
(including, for example, a sales disclosure form, closing statement and seller's affidavit) and the
title insurer's issuance of a title insurance policy to Developer, at Developer's cost.
3.3 Time anti Place for Delivery of Decd. Subject to the terms hereof, provided all
conditions to Closing have been satisfied (or otherwise waived),the(a) Commission shall deliver
the Deed and possession of the LaSalle Property to the Developer by March 15, 2015 (the
"Closing")or such earlier or later date as mutually agreed to between the Parties,and(b)Developer
shall accept such conveyance at such time and place.
3.4 Conditions Precedent to Closing. Prior to and as conditions precedent to closing
(unless otherwise waived by the Commission or Developer, as the case may be):
(a) Developer shall have delivered all documents required to be delivered by
the Developer to the Commission pursuant to the terms and conditions of this Agreement
within the time specified herein and shall be in form and substance reasonably satisfactory
to the Commission;
(b) Each of the representations and warranties of the Developer contained
herein shall be true in all material respects as of the Closing(as defined herein); and
(c) The Developer shall in all material respects have complied with, fulfilled
and performed each of the covenants, terms and conditions to be complied with, fulfilled
or performed by the Developer hereunder prior to the Closing.
(d) The Common Council shall have approved a grant of real property tax
abatement for all eligible investments in real property improvements to be undertaken by
Developer with respect to the Project according to a schedule reasonably acceptable to
Developer which permits the Developer to realize the maximum real property tax
abatement applicable to the Project based upon the investment and other written criteria
evaluated by the City according to its tax abatement program, notwithstanding the effect
of the Circuit Breaker Tax Credit set forth in Ind. Code. 6-1.1-20.6.
(e) Developer shall have received reasonable assurance that covered parking
may be located on the Support Parcel and be satisfied, in its reasonable discretion (i)with
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the title to the LaSalle Property, terms and provisions of any Restrictions and any further
due diligence regarding the LaSalle Property; and (ii) that certain building features of the
LaSalle Property, including those listed on Exhibit D-2, will be considered grandfathered
or otherwise approved by the state and local building departments as compliant under the
Indiana building code.
(fj The Commission shall have delivered to Developer copies of documents in
Commission's possession, if any, which pertain to restrictive covenants, surveys,
environmental reports and title documentation (including copies of exception documents,
if any)related to the LaSalle Property.
(g) As of the Closing,Developer shall have obtained or determined that it shall
be able to obtain all required building permits for the Project.
(h) The Parties shall have agreed to the form of lease referenced in Section
5.3(b)to be entered into upon substantial completion of the Project.
3.5 Grant of Easement. At the Closing, Developer shall grant to the Commission a
temporary non-exclusive easement on, in, over and across the LaSalle 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
LaSalle 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 LaSalle Property) and its grantees,
successors and assigns; and (d) terminate upon completion of the Local Public Improvements.
3.6 As Is Transaction. Except as expressly provided herein, Commission is not
making and has not at any time made any warranties or representations of any kind or character,
express or implied, with respect to the LaSalle Property, including, but not limited to, any
warranties or representations as to habitability, merchantability, fitness for a particular purpose,
title (other than Commission's limited warranty of title to be set forth in the deed), zoning, tax
consequences, physical or enviromnental condition, operating history or projections, valuation,
governmental approvals, governmental regulations, the truth, accuracy or completeness of the
items or any other information provided by or on behalf of Commission to Developer or any other
natter or thing regarding the LaSalle Property. Upon Closing, Commission shall sell and convey
to Developer, and Developer shall accept the LaSalle Property "as is, where is, with all faults."
Developer has not relied upon and will not rely upon either directly or indirectly, any
representation or warranty of Commission with respect to the LaSalle Property except as otherwise
expressly provided herein. Developer will conduct such investigations of the LaSalle Property,
including but not limited to, the physical and environmental conditions thereof, as Developer
deems necessary to satisfy itself as to the condition of the LaSalle Property and will rely solely
upon same and not upon any information provided by or on behalf of Commission. Upon Closing,
Developer shall assume the risk that adverse matters, including but not limited to, construction
defects and adverse physical and environmental conditions, may not have been revealed by
Developer's investigations or any information supplied by or on behalf of Commission pursuant
to this Agreement.Developer,upon Closing,hereby waives,relinquishes and releases Commission
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from and against any and all claims, demands, causes of action (including causes of action in tort
[i.e., negligence and strict liability]), losses, damages, liabilities, costs and expenses (including
attorneys'fees and court costs)of any kind and every kind or character,known or unknown,which
Developer might have asserted or alleged against Commission at any time by reason of or arising
out of any construction defects, physical and environmental conditions regarding the LaSalle
Property.
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.
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(a) Developer shall develop or cause to be developed The LaSalle as a mixed-
use, imiltifarnily residential building which will comply with all zoning and land use laws
and ordinances in all material respects.
(b) As part of the retail, restaurant and events use of The LaSalle, Developer
shall construct or cause to be constructed approximately 8,000 square feet of retail and
restaurant/event space by the date set forth on Exhibit D attached to this Agreement and
made a part hereof.
(c) As part of the multi-family use of The LaSalle,Developer shall construct or
cause to be constructed approximately 67 apartment units by the date set forth on Exhibit
D.
4.3 Private Investment. Developer agrees to Private Investment for the Project of ,
Seven Million Five Hundred Thousand Dollars and 00/100 cents ($7,500,000.00) 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 hereby agrees to endorse and support the Commission's
efforts to expedite the Project through the required planning, design, permitting, waiver, and
related regulatory processes.
4.5 Employment of Local Labor. Developer hereby agrees to provide notice to local
contractors including business agents of all skilled trade unions of all requests for bids, of pre-hid
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
4.6 Timeframe for Completion. Developer hereby agrees to reach Substantial
Completion for development of the Project and any other obligations the Developer may have in
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conjunction and in accordance with this Agreement by the later of November 1, 2016 or twenty
(20)months following Closing,whichever is later.
4.7 Reporting Obligations.
I (a) Upon the letting of contracts for substantial portions of the Project and again
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upon substantial completion of the Project, Developer hereby agrees to report to the
ii 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.
1 (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.
iii (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 three years after substantial completion of the Project,Developer shall submit to the City
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.
j To the extent that the Developer determines to construct covered parking on a portion of the
Support Parcel to serve the LaSalle Property,the Developer shall provide plans and specifications
to the Commission to obtain its written consent of such plans and specifications, which shall not
be unreasonably withheld.
I4.9 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
3 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 which
i expenses shall be reimbursed by the Commission, all in accordance with the Construction
1 Management Agreement(as later defined).
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4.10 Non-Interference. Developer hereby agrees to use commercially reasonable
i efforts to minimize disruption for those living and working in or near the LaSalle Property during
4 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
I 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 City, (b) coordinate a
Project groundbreaking ceremony with the City, and (c) use commercially reasonable efforts to
coordinate other significant public announcements with the City, subject, in each case, to any
1 securities laws that would prevent Developer from engaging in such coordination. Developer
agrees to allow the City and 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 City and/or 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.
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5.2 Completion of Local Public Improvements.
(a) The Commission hereby agrees to complete (or cause to be completed) at
its expense,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.
(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 fimded with the Funding Amount.
5.3 Lease of Support Parcel,Parking Lot and Easement.
(a) The Commission agrees, during all periods of construction of the Project
and Local Public hnprovements,the Commission will provide,upon request by Developer,
all reasonable access to and use of the Support Parcel for construction staging, storage and
related activities(which area of the Support Parcel reasonably required shall be fenced by
Developer in a manner to be agreed upon by Commission and Developer).
(b) The Commission agrees, upon substantial completion of the Project by
Developer,to enter into a lease agreement with Developer to lease both the Support Parcel
and Parking Lot to Developer for One Dollar and 00/100 cents ($1.00)per year, and other
valuable consideration, for an initial term of twenty (20) years, which term shall
automatically renew for seven (7) successive periods of ten (1 0) years each, unless earlier
terminated (i) pursuant to its terms or (ii) by either party, upon at least sixty (60) days
advance written notice in the event of construction of a New Building and Parking Garage
(each as defined below) as described herein on the Support Parcel and/or Parking Lot(with
such termination being only with respect to the area required for such construction).
During the lease term, the Commission covenants and agrees not to impose any liens,
encumbrances, covenants or restrictions on such Support Parcel which would result in an
impairment of the Developer's rights under the lease described herein. In addition, in the
event such lease expires or is otherwise terminated,the Commission agrees, upon request
of Developer, to consider providing a perpetual easement over a portion of such Parking
1 Lot for ingress/egress purposes to and from the Project Site to Main Street(or other named
public right of way).
5.4 Cooperation. Consistent with City policy, the Commission hereby agrees to
endorse and support Developer's efforts to expedite the Project through the required planning,
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design, permitting, waiver and related regulatory processes; provided, however, the Commission
'i shall not be required to expend any money in connection therewith. The Commission further
agrees to permit Developer or its agents access to the LaSalle Property through the use of the
public roads surrounding the LaSalle Property necessary to accomplish the actions contemplated
by this Agreement.
5.5 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 and support the designation of the LaSalle Property as both an Economic
Development Target Area and Economic Revitalization Area (under Ind. Code § 6-1.1-12.1-1 et
seq.)for purposes of real property tax abatement for the Project.
5.6 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).
5.7 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), including the construction of covered
parking (according to plans which shall be submitted to the Commission for prior approval as set
forth herein), on a portion of the Project Site, including the Support Parcel, to serve the LaSalle
Property.
5.8 Information. The Commission hereby agrees to provide any and all due diligence
items with respect to the Project reasonably requested by the Developer.
5.9 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. Following the Effective Date, the
Commission shall enter into a construction management agreement in the form attached hereto
and incorporated herein as Exhibit I+' (or in such other form as mutually agreed) with Developer
and the Board of Works whereby the Commission and the Board of Works shall designate and
appoint Developer as construction manager and agent to act on behalf of the Commission in
connection with the construction of the Local Public Improvements (the "Construction
Management Agreement"). Pursuant to the Construction Management Agreement, Developer
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
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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 Grant of Option for Future Development. The Commission has obtained a
preliminary site plan identifying the potential location for construction of a four deck parking
r.
structure on a portion of the Support Parcel (the "Parking Garage") which could support parking
for multiple uses, including The Morris Civic Performing Arts Center, Palais Royale Ballroom,
The LaSalle and retail stores,restaurants and office space in South Bend. The Commission agrees
to proceed with the construction of a parking garage if and in the event the tax increment finance
revenues (the "TIE Revenues") received with respect to the LaSalle Property and the Support
Parcel are sufficient to finance the costs of the Parking Garage. The Commission agrees, subject
to Section 6.3 of this Agreement, to grant the Developer (subject to the occurrence of Closing),
the one-time right and option("Option")to purchase any portion of the Support Parcel(the"Option
Property") for a period of ten (10) years following Closing (the "Option Period") for the sum of
$1.00 to the extent that (i) the Developer provides written notice of its intent to proceed with the
construction of a new building (the "New Building") on a portion of the Support Parcel and (ii)
the Commission determines, in its sole but reasonable discretion, that the TIF Revenues being
received or expected to be generated by development on the LaSalle Property and/or the Support
Parcel are sufficient to support the financing and construction of the Parking Garage. If Developer
elects to exercise the Option, then, on or before the end of the Option Period, Developer shall
notify Commnission by written notice of such exercise ("Option Notice") in accordance with
Section 10.8 of this Agreement. Upon the receipt of the Option Notice, the Commission shall
negotiate in good faith a development agreement to provide for the sale of the Option Property to
Developer and the construction of the Parking Garage by Commission. The closing on the Option
Property shall occur within ninety (90) days after the Option Notice is delivered to Commission,
or such longer period as may be mutually agreed to between the parties ("Option Closing").
Developer shall be responsible for paying its own costs and expenses related to the Option Property
and the Option Closing, including, without limitation, (i)closing costs, and (ii) costs of obtaining
title insurance, a survey or any other reports, studies or investigations.
6.3 Right of First Refusal. If, during the Option Period, Commission receives a
proposal to construct the New Building from a third party that the Conunission determines will
generate enough TIF Revenues (when coupled from any new TIF Revenues from the LaSalle
Property) to finance the construction of the Parking Garage, Commission shall provide written
notice to the Developer, in accordance with Section 10.8 of this Agreement, of the proposal and
provide Developer a period of forty-five(45) days to make an alternate proposal for construction
of the New Building. In the event the Developer and the Commission do not enter into a
development agreement to provide for the construction of the New Building by Developer and the
Parking Garage by Commission within ninety(90)days after Commission has notified Developer
of the third party's proposal, the Option Period shall terminate and the Commission may proceed
to provide for the development of the Support Parcel provided the same includes construction of
the Parking Garage,subject to the parking rights of the Developer as set forth in Section 6.4 hereof.
6.4 Parking Access. In the event of construction of a Parking Garage on the Support
Parcel, the Commission agrees that the Developer will have access to parking in the Parking
Garage for the LaSalle Property and further agrees that it will modify the lease described in Section
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thus us.52637413.08
5.3(b) hereof to provide the Developer with the same number of parking spaces in the Parking
Garage for the benefit of the LaSalle Property. The Commission will provide replacement parking
with the same number of spaces within two blocks of The LaSalle during construction of the
Parking Garage.
SECTION 7. COOPERATION IN THE EVENT OF LEGAL CHALLENGE.
7.1 Cooperation. In the event of any administrative,legal or equitable action or other
proceeding instituted by any person not a party to this Agreement challenging the validity of any
provision of this Agreement, the Parties shall cooperate in defending such action or proceeding to
settlement or final judgment including all appeals. Each Party shall select its own legal counsel
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 and Reversion. If Developer fails to meet Substantial
Completion of the Project within thirty-six(36)months following Closing, the Commission may:
I (a) Recommend termination of any economic revitalization area created, and
associated property tax abatement granted, in connection with the Project.
(h) Thereafter, unless construction work of a material nature has resumed and
is continuing without interruption for prompt Substantial Completion, re-enter and take
possession of the LaSalle Property and terminate and cause title to the LaSalle Property to
be surrendered by Developer and revested in the Commission,provided any such revesting
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dins.us.52637 413.08
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(or conveyance to the Commission) shall always be subject to and limited by,and shall not
defeat,render invalid,or limit in any way,the lien of any mortgage on the LaSalle Property
for the purpose of securing any financing obtained by the Developer to complete the
Project; and shall not apply to individual parts of the LaSalle Property, if any, (or in the
case of parts sold or leased, the part so conveyed) on which the construction thereon has
been completed under this Agreement.
8.3 Reimbursement Obligation. If(i) the Commission determines not to exercise its
right to re-enter and retake possession of the LaSalle Property as described in Section 8.2(b) upon
Developer's failure to reach Substantial Completion of the Project within thirty-six (36) months
following Closing, or(ii) the Developer fails to make a Private Investment of at least $7,000,000,
Developer agrees,upon request of the Commission, to:
(a) Repay to the City all or a portion of the 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 fiwtherance of the Project.
8.4 Enforced Delay in Performance for Causes Beyond Control of 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 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 and/or Developer accepts the same pursuant to the
provisions of this Agreement; and
(c) The Commission and Developer hereby renounce the existence of any form
of agency relationship, joint venture or partnership between the Commission and
Developer and agree that nothing contained herein or in any document executed in
)
- 13 -
dms.us.52637413.08
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coimection herewith shall be construed as creating any such relationship between the
Commission 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
indenmify, defend and hold Developer harmless from and against any third party claims
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 fiill 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 MI 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
3 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
- 14 -
dms.us.52637413.08
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
(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: RealAmerica Development
10711 America Way, Suite 200
Fishers, IN 46038
Attn: Ronda Weybright
With a copy to: Gareth Kuhl
Kuhl& Grant LLP
55 Monument Circle, Suite 201
Indianapolis, IN 46204
(b) in the case of the Commission is addressed to or delivered personally to:
Commission: The South Bend
Redevelopment Commission
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dms.us.52637413.08
222 W. Jefferson Blvd., Suite 14005
South Bend, IN 46601
Attn: Chris Fielding
With a copy to: City Attorney's Office
227 W. Jefferson Blvd, Suite 1200S
South Bend, IN 46601
Ann: Cristal Brisco
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.
10.11 No Third-Party Beneficiaries. Nothing in tins 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.
- 16 -
dnu.us.52637413.08
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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]
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I IN WITNESS WHEREOF, the Patties hereby execute this Agreement on the date first
written above.
COMMISSION:
SOUTH BEND REDEVELOPMENT
COMMISSION
President
ATTEST:
Secretary
STATE OF INDIANA )
) SS:
COUNTY OF ST.JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared
, _ South Bend Redevelopment Commission, an
Indiana corporation, who, being first duly sworn, acknowledged the execution of the foregoing
Development Agreement for and on behalf of South Bend Redevelopment Commission for the use
and purposes contained therein.
Witness my hand and Notarial Seal this day of , 2014.
My Commission Expires:
(Signature)Notary Public
My County of Residence:
(Printed)
t
g
1
(Signature Page to Development Agreement)
dms.us.52637413.08
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DEVELOPER:
REAL1 LMERICA D • LOPMIINT
By: '`i' --___✓
Its: S r(X---7 e- 4/-
ATTEST:
By:
I Its:
r
1 STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared
loo,�Q.z Sf.r•ewsek f !r?S id,,L of RealAmerica Development., an Indiana
corporation, Ivho, b in�duly sworn, acknowledged the execution of the foregoing
Development Agreement for and on behalf of RealAmerica Development for the use and purposes
contained therein.
Witness my hand and Notarial Seal this /? day of ,o ve,,,bed- , 2014.
My Commission Expires:
2/2 e /zo r ft ( ti��,�
(Siature)Notary Public
My County of Residence: ii//
/'-Cart oh gtt/ot.e.- 54 c
YVONNESLOAN
�, Resident bn of Marlon County,IN (Printed)
Comdss Marl cm
(Signature Page to Development Agreement)
•
This Instrument prepared Randolph R. Rompola, Counsel,Faegre Baker Daniels,LLP,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. /s/Randolph R. Rompola
dms.us.52637413.08
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EXHIBIT A-1
PROJECT SITE
The LaSalle Property
A part of the West half of the Northwest Quarter of Section 12, T. 37 N., R. 2 E.
Also known as Lot#1 in the recorded plan of the Original Plat of the Town,Now
City of South Bend Portage Township, City of South Bend, St. Joseph County,
Indiana. [Generally referred to as Parcel Key No. 018-1002-0040]
Support Parcel
A part of the West half of the Northwest Quarter of Section 12, T. 37 N., R. 2 E.
Also known as Lots#2 and#3 in the recorded plan of the Original Plat of the Town,
Now City of South Bend Portage Township,City of South Bend,St.Joseph County,
Indiana. [Generally referred to as Parcel Key No. 018-1002-0041]
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dms.ns.52637413.08
EXHIBIT A-2
PARKING LOT
A part of the West half of the Northwest Quarter of Section 12, T. 37 N., R. 2 E.
Also known as Lot#10 in the recorded plan of the Original Plat of the Town,Now
City of South Bend Portage Township, City of South Bend, St. Joseph County,
Indiana. [Generally referred to as Parcel Key No. 018-1008-0304]
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dms.ns.52637413.08
EXHIBIT B
• The LaSalle Site Plan -
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EXHIBIT C
Description of Local Public Improvements
Estimated Costs of Local Public Improvements
Fire protection and pump. 321,000
Trash chute 14,000
Roof 75,000
Exterior Facade/site work 773,000
Elevators 446,000
Construction management 171,000
Total $1,800,000
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3 dms.us.52637413.06
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EXHIBIT D
Description of Private Investment and Substantial Completion
All of the following are to be completed so as to meet the standards that protect the building as a
landmark recognized on the National Register of Historic Places and the Indiana Register of
Historic Sites and Structures, and those standards set by the St. Joseph County Historic
Preservation Commission for a total investment by Developer of no less than Seven Million Five
Hundred Thousand Dollars and 00/100 cents($7,500,000.00).
Work to be performed:
• Restored Lobby and Mezzanine, including marble staircases and Georgian Revival
details
• New ground floor Retail/Gallery/Special Events spaces
• New Catering/Prep Kitchen
• New Restroom Facilities, Coat Room,and Events Storage
• Renovated and possibly expanded existing"Gentleman's Bar"
• New Landscape around the building
• Full upgrade/modernization of building systems and services:
-New energy efficient mechanical systems
-New upgraded gas service
-New upgraded electrical service
-New domestic water service throughout
-New domestic waist-sanitary service
• New fire protection system,with code-compliant:
-Smoke detectors
-Heat detectors
-Pull stations
-Horn/strobe devices
-Wet and dry sprinkler systems
• Fire-rated emergency staircases
• New passenger elevator cars (2) installed in existing shafts
• 49 New one bedroom/one bathroom apartments
• 14 New two bedroom/one bathroom apartments
• New loft-style apartments on the Mezzanine level
• A complete turnkey renovation for the residential units including new ceilings, walls,
floors,finishes,paint
• New kitchen cabinets with granite counter tops and stainless steel appliances for each
apartment including range, oven,refrigerator, dishwasher and combined washer/dryer
• New toilet fixtures and accessories
• New multi-zone RTUs IIVAC Units
• New light fixtures
• New fire-rated doors, hardware and triple-glazed windows
D-1
dms.us.52637413.08
• New Residents' Storage
• New Residents" Gym
• New energy efficient insulation throughout
• New 45 mil EPDM Single Ply Roofing Membrane System on top of 3.25' (R-20)
insulation, 15 year minimum manufacturer's warranty.
Substantial Completion Benchmarks:
Secure building envelope by
Installation of mechanicals by
Elevator restoration by
Rough framing by
Drywall and finishing by _
Installation of interior finishes by
Leasing by
D-2
dms.us.52637413A8
EXHIBIT D-2
Grandfathered/Approved Building Characteristics
1. Confirmation that the following is deemed a compliant 2-hour fire barrier construction:
(a) existing interior partitions at stairs and elevators are 4" thick terra cotta tiles with
approximately 1" plaster on exposed faces. Final construction will include metal furring
and an additional 5/8"type X gypsum board at exposed face.
(b) Existing floor/ceiling horizontal assembly is cast in place concrete with 12"x12"x6"terra
cotta tile"fillers". Overall floor depth is approximately 8"thick.
2. Existing stairs do not comply with current requirements for tread/riser dimensions. Existing
stairways are cast-in-place concrete integral with the building structure and removing or replacing
the stairs is impractical. Compliancy with number of exit requirements assumes that existing
stairway tread/riser dimensions will be grandfathered/approved.
3. Existing elevator shafts do not have required 90 minute hoistway doors at each floor. New walls
and doors complying with smoke and fire barrier requirements will be installed to create an elevator
lobby at each floor above the level of discharge. Compliancy assumes that doors with hold-opens
at elevator lobbies will be acceptable without fully complying with ADA requirements.
4. Approval of proposed means of egress design.
5. Existing historical elements within the 1st and 2nd floor lobby/ atrium space may need special
approval,including(a)guardrails at atrium are not 42"high per current code,and(b)existing stairs
at atrium lobby do not have 42"guardrails and separate handrails at 36".
D-2
dms.us.52637413.08
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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. $1,000,000.00 Annual Aggregate Products
and Completed Operation
2. Property Damage
a. $1,000,000.00 Each Occurrence
b. $1,000,000.00 Ammal 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
2. Property Damage
a. $1,000,000.00 Each Occurrence
b. $1,000,000.00 Annual Aggregate
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EXHIBIT F
IForm of Construction Management Agreement
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Am s.us.52637413A8
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dins.us.52637413.08
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Michelle Adams
From: Pam Thompson <PTHOMPSO @co.st-joseph.in.us>
Sent: Wednesday, November 19, 2014 1:19 PM
To: Michelle Adams
Subject: Re: Restaurant Approval
Attachments: Pam Thompson.vcf
1
Yes Food Service, permitted for the first time November 9, 2009, renewed January 13, 2014
Pamela J. Thompson
Administrative Assistant
Food Services Division
St.Joseph County Health Department
Telephone: 574-245-6769
Fax: 574-235-9497
>>> Michelle Adams <madams @southbendin.gov> 11/19/2014 11:10 AM >>>
Hi Pam,
2014 Food Service Permit?
Low Bobs Express-4505 Ameritech Dr., Suite 105
Thank You,
soux,r ` Michelle Adams
Business License Administrator
u.4.. o'
(574)235-5912
1:
madams@southbendin.gov
ins .
City of South Bend
227 W.Jefferson Blvd..Suite 1400 S
South Bend, IN 46601
VISIT OUR NEW WEE5ITE
o J'J`Fr NCRI _.,
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