HomeMy WebLinkAboutGATEWAY DEVELOPMENT AGREEMENT 1DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made as of the day of
k,c ir L_ , 2017 (the "Effective Date"), by and between HOGAN PROPERTY DEVELOPMENT
CO., a Kentucky corporation ("Developer"), and THE CITY OF JEFFERSONVILLE REDEVELOPMENT
COMMISSION, a municipal body politic of Indiana ("Commission"). This Agreement shall be effective
upon its mutual execution and delivery by Developer and Commission.
RECITALS:
A. Commission is the owner of certain real property located in the City of Jeffersonville,
County of Clark, State of Indiana, as legally described on Exhibit A-1 and commonly known as the Gateway
Commercial Development, and as also generally depicted on Exhibit A-1 (the "Property");
B. Developer possesses the requisite experience, expertise, and financial capabilities to
develop and construct a mixed-use commercial real estate development project on the Property, which may
include hotel, office, restaurant, retail, and other commercial improvements and uses (the "Project"); and
C. Commission and Developer agree that it is of mutual benefit for the parties to jointly
formulate a plan for the Project that will include transfer of the fee title to the Property to the Developer and
the mutual satisfaction of the commitments of each party contained herein.
NOW THEREFORE, in consideration of the foregoing and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1
PRICE AND INSPECTIONS
1.1 Purchase Price. The purchase price to be paid by Developer to Commission for the
Property shall be One Million Two Hundred Thousand Dollars ($1,200,000.00) (the "Purchase Price"),
payable as follows:
(a) Earnest Money Deposit. Within five (5) days of the Effective Date, Developer will deposit,
with Title Agency Support, LLC or such other agent of Title Company acceptable to
Developer (the "Escrow Agent"), an earnest money deposit of Twelve Thousand Dollars
($12,000.00) (the "Earnest Money"). Except as otherwise provided in this Agreement,
the Developer shall have no right to refund of the Earnest Money after the Discretionary
Termination Date (as defined herein).
(b) Application. If the transaction contemplated by this Agreement closes, then the Earnest
Money shall be credited against the Purchase Price at the Closing (as defined herein). In
the event the transaction contemplated by this Agreement does not close, the Earnest
Money shall be disbursed as provided in this Agreement.
(c) Balance of Purchase Price. Developer shall deliver the Purchase Price to Commission at
the Closing in the form of an electronic wire transfer or other immediately available funds,
subject to adjustment for the Earnest Money and other reductions, credits, and pro -rations
as set forth in this Agreement and calculated on the Closing Statement (as defined herein).
1.2 Feasibility Study and inspection. Commencing on the Effective Date and continuing
through the Closing (as defined herein) (the "Inspection Period"), unless this Agreement is earlier
terminated, Developer and its agents, contractors, consultants, licensees, and representatives (collectively,
the "Developer's Representatives") shall have reasonable access to the Property for the purpose of
conducting studies, investigations, inspections and tests of the Property as Developer deems reasonably
necessary or desirable, in its sole and absolute discretion, including without limitation surveys and
architectural, engineering, geo-technical, and environmental assessments, inspections, tests, studies,
and/or investigations (the "Site Inspections"); provided that:
(i) Developer must give Commission reasonable prior telephone or written notice
(which may be given via e-mail) of any such inspection or test and, with respect to
any intrusive inspection or test (e.g., boring, drilling or core sampling), Developer
must obtain Commission's prior written consent (which consent shall not be
unreasonably withheld, conditioned, or delayed);
(ii) Prior to assessing the Property and performing any inspection or test at or on the
Property, Developer must deliver a certificate of insurance to Commission
evidencing that Developer or Developer's Representatives which will be accessing
the Property, as applicable, has in place: (A) commercial general liability insurance
in the amount of $3,000,000 in the aggregate and not less than $2,000,000 for any
injury or death of one or more persons in an occurrence, and not less than
$1,000,000 for damage to tangible property (including loss of use) in an
occurrence; and (B) workers compensation insurance for its activities on the
Property in terms, amounts, and coverages as required by Applicable Laws (as
defined herein); provided that such commercial general liability insurance shall: (A)
name Commission as an additional insured thereunder; (B) contain a cross -liability
provision; and (C) contain a provision that the insurance provided by Developer
hereunder shall be primary and non-contributing with any other insurance
available to Commission (and its successors, assigns, and affiliates);
(iii) All Site Inspections (as defined herein) of the Property shall be conducted by
Developer or Developer's Representatives (as applicable) in compliance with
Developer's responsibilities set forth in Section 1.2(a). Developer shall bear the
cost of all Site Inspections, except as otherwise set forth in this Agreement; and
(a) Developer's Responsibilities. In conducting any Site Inspections of the Property,
Developer shall (and shall cause Developer's Representatives to):
(i) not unreasonably interfere with the operation and maintenance of the Property;
(ii) not damage any part of the Property or any personal property owned or held by
any third party;
(iii) not injure or otherwise cause bodily harm to Commission, or its respective agents,
guests, invitees, licensees, contractors, or employees, or their guests or invitees;
(iv) comply with all applicable laws, statutes, and/or ordinances, and any applicable
federal, state, or local rules, regulations, requirements, orders, decrees, and/or
judgments (collectively, the "Applicable Laws");
(v) promptly pay when due the costs of all Site Inspections done with regard to the
Property, except as otherwise set forth in this Agreement;
(vi) not permit any liens to attach to the Property or any portion thereof by reason of the
exercise of its rights hereunder;
(vii) promptly and diligently repair any damage to the Property and restore any areas
disturbed resulting directly or indirectly from any Site Inspections substantially to
2
their condition prior to the performance of such Site Inspections (unless Developer
purchases the Property pursuant to the terms and conditions of this Agreement);
and
(viii) not reveal or disclose prior to closing any material information obtained during the
Inspection Period concerning the Property or the Property Documents (as defined
herein) to anyone, except that which: (A) may be otherwise required by Applicable
Laws; or (B) is a matter of public record; without the prior written consent of
Commission. Notwithstanding anything to the contrary contained herein,
Developer may disclose any information to: (A) partners, directors, officers,
agents, contractors, employees, and outside counsel and accounting firms of
Developer and/or Developer's Representatives; and (8) Developer's lenders,
investors and financial advisors and such parties' outside counsel and accounting
firms, who, in Developer's reasonable judgment, need to know such information for
the purpose of evaluating the possible purchase of the Property by Developer.
(b) Documents and Items. To the extent that such items are available in the possession or
under the control of Commission or the City of Jeffersonville, Indiana (the "City"),
Commission (i) shall deliver to Developer copies of all such items that are readily available,
including all items that Commission or the City have in electronic form, and (11) will make
available to Developer, and allow Developer to make copies at Developer's expense, of all
other items, in either case, for Developer's or Developer's Representatives' review and
inspection, which items shall include those certain documents relating to the Property listed
in Exhibit B (collectively, the "Property Documents"). Commission shall make available
all Property Documents to Developer within three (3) business days after the Effective
Date. The Property Documents shall be made available to Developer without
representation or warranty by, or recourse against, Commission, it being agreed that
Developer shall: (A) not rely on such documents; and (B) independently verify the truth,
accuracy, and completeness of the information and/or items contained therein; provided
that, notwithstanding any other term or condition of this Agreement, if Commission or any
affiliate, agent, attorney, employee, officer, or member of Commission (collectively,
"Commission's Representatives") knows or is aware of any matter or statement
addressed or made by or in the Property Documents that is untrue, inaccurate, or
incomplete, then, at the time Commission makes the Property Documents available to
Developer (or, if there is not knowledge or awareness of the untruth, inaccuracy, or
incompleteness at such time, then, as promptly as possible after there first is knowledge or
awareness on the part of Commission or any affiliate, agent, attorney, employee, officer, or
member of Commission), Commission shall give Developer written notice describing the
untruth, inaccuracy, or incompleteness, to the extent of such knowledge or awareness.
(c) Disclaimers. Developer acknowledges that neither Commission nor any of Commission's
Representatives has made, nor does it make, any warranty or representation regarding the
truth, accuracy, or completeness of the Property Documents or the source(s) thereof.
Developer further acknowledges that some, if not all, of the Property Documents were
prepared by third parties other than Commission. Commission expressly disclaims any
and all liability for: (A) representations or warranties, express or implied, statements of fact,
and other matters contained in the Property Documents; (B) omissions from the Property
Documents; or (C) any other written or oral communications made or made available to
Developer; except to the extent that a representation or warranty is expressly made in this
Agreement, a Commission Closing Document (as defined herein), or another written
communication made or made available to Developer. Developer: (A) may rely upon the
Existing Phase II Assessment (as defined herein), the Updated Phase 11 Assessment (as
defined herein) and the Title Commitment (as defined herein); but (B) otherwise shall rely
3
upon Developer's own investigation with respect to the Property, including, without
limitation: (1) the Property's physical and economic condition; (2) compliance, or lack of
compliance with any ordinance, order, permit, or regulation; or (3) any other attribute or
matter relating thereto, except for any representation or warranty expressly made in this
Agreement, a Commission Closing Document, or another written communication made or
made available to Developer. Commission: (A) has not undertaken any independent
investigation as to the truth, accuracy, or completeness of the Property Documents; and
(B) is providing the Property Documents solely as an accommodation to Developer.
(d) Developer Indemnity. Developer, for and on behalf of itself, its officers, members,
managers, directors, licensees, invitees, agents, and employees, and Developer's
Representatives, shall, and hereby does, indemnify, defend, release, discharge, and
forever hold harmless Commission and its officers, members, managers, directors,
employees, partners, brokers, agents, and any person, firm, corporation, trust, partnership,
limited liability company, or other entity claiming by, through, or under Commission
(collectively, the "Commission Indemnified Parties") from and against any and all
actions, claims, demands, liabilities, liens, losses, costs (including court costs), damages,
awards, and expenses (including reasonable attorney's fees) arising from: (A) Developer's
or Developer's Representatives' access or entry onto the Property; (B) any event, accident,
or occurrence causing damage or injury to, or death of, any person or property resulting
from the use of or access to the Property by Developer or Developer's Representatives in
connection with this Agreement; (C) any Site Inspections performed by, Developer or
Developer's Representatives; or (D) any material breach by Developer of the terms and
conditions of this Agreement, including, without limitation, the breach by Developer (or by
Developer's Representatives) of the confidentiality provisions of Subsection 1.2(a);
provided that Developer shall have no obligation to remediate and/or indemnify
Commission or the Commission Indemnified Parties for any pre-existing conditions merely
discovered or revealed by Developer's investigations with respect to the Property, except
to extent Developer materially exacerbates the same; further provided that Developer shall
have no obligation to remediate and/or indemnify Commission or the Commission
Indemnified Parties from the causes listed above to the extent resulting from any negligent,
willful, illegal, or unauthorized acts of Commission or the Commission Indemnified Parties.
Commission's and the Commission Indemnified Parties' right to indemnity from Developer
shall in no way be limited to the amount recoverable under any insurance maintained by
Developer as required in this Agreement. The provisions of this Subsection shall survive
the termination of this Agreement or the Closing for a period of one (1) year.
(e) Commission Indemnity. Commission, for and on behalf of itself, its officers, members,
managers, directors, licensees, invitees, agents, and employees, and Commission's
Representatives, shall, and hereby does, indemnify, defend, release, discharge, and
forever hold harmless Developer and its officers, members, managers, directors,
employees, partners, brokers, agents, and any person, firm, corporation, trust, partnership,
limited liability company, or other entity claiming by, through, or under Commission
(collectively, the "Developer Indemnified Parties") from and against any and all actions,
claims, demands, liabilities, liens, losses, costs (including court costs), damages, awards,
and expenses (including reasonable attorney's fees) arising from: (A) Commission's or
Commission's Representatives' ownership, occupancy, or use of the Property; (B) any
event, accident, or occurrence causing damage or injury to, or death of, any person or
property resulting from the occupancy or use of the Property by Commission or
Commission's Representatives; (C) any work performed by, Commission or Commission's
Representatives; or (D) any breach by Commission of the terms and conditions of this
Agreement; provided that Commission shall have no obligation to indemnify Developer or
the Developer Indemnified Parties from the causes listed above to the extent resulting from
4
any negligent, willful, illegal, or unauthorized acts of Developer or the Developer
Indemnified Parties. Developer's and the Developer Indemnified Parties' right to
indemnity from Commission shall in no way be limited to the amount recoverable under any
insurance maintained by Commission. The provisions of this Subsection shall survive the
termination of this Agreement or the Closing for a period of one (1) year.
1.3 Discretionary Termination Date. Developer and Developer's Representatives shall have
the right to inspect, test, study, and investigate the Property (which includes the Site Inspections) and
review the Property Documents in a manner Developer deems necessary to determine whether the
Property is suitable for Developer in Developer's sole and absolute discretion. Developer shall be solely
responsible for any and all costs associated with its Site Inspections, unless this Agreement specifically
allocates such responsibility to Commission. During the period from the Effective Date through the date
one hundred eighty (180) days after the Effective Date (the "Discretionary Termination Date"), Developer
shall have the right to terminate this Agreement for any reason whatsoever, or no reason, in its sole and
absolute discretion, upon written notice to Commission, in which event: (A) the Earnest Money and all
interest earned thereon shall be refunded to Developer; and (B) the parties shall have no further right or
obligation under this Agreement (except for rights or obligations which expressly survive the termination of
this Agreement). If Developer fails to give Commission such written notice of termination on or before the
Discretionary Termination Date, then Developer shall: (A) be deemed to have accepted the Property,
subject to the terms and conditions of Sections 6.3. 6.4. and 12.19; and (B) have waived any right to
terminate this Agreement pursuant to this Section.
ARTICLE 2
SURVEY AND TITLE
2.1 Survey and Title. Developer shall obtain a commitment for an owner's policy of title
insurance with respect to the Property (the "Title Commitment") that: (A) is issued by a title company
acceptable to Developer (e.g., a Fidelity National Title Group company, First American Title Insurance
Company, or Old Republic National Title Insurance Company) (the "Title Company"); and (B) commits to
insure marketable, indefeasible fee simple title to the Property in the name of Developer. Developer shall
obtain, at Developer's sole cost and expense, a survey from Jacobi, Toombs & Lanz, Inc., Land Design &
Development, Inc. or another surveyor mutually acceptable to the parties (the "Survey"). Developer shall
provide copies of the Title Commitment, any relevant title exceptions and the Survey to Commission in
connection with delivery of the Objections (as defined below). The Survey shall be certified to
Commission, in addition to any other parties that Developer may require.
2.2 Obiections. Developer shall have until the Discretionary Termination Date to examine the
Survey and the Title Commitment and to provide written objections to Commission of matters deemed
defects by Developer, in Developer's sole but reasonable discretion, which are disclosed on the Survey
and/or by the Title Commitment (collectively, the "Objections"). Notwithstanding any other term of this
Agreement, Commission shall be obligated to remove at or before Closing all monetary liens attached to the
Property and evidencing Commission's or the City's obligation to pay money to a third party (the "Monetary
Liens"), irrespective of whether such are stated as Objections. In the event Developer gives timely written
notice of its Objections, Commission shall have the right, but not the obligation, to attempt to remove,
satisfy, or otherwise cure the Objections within thirty (30) days after receipt of Developer's notice of
Objection, but in any event, prior to the Closing Date (the "Commission Cure Period"). Within five (5)
business days after receipt of Developer's notice of Objection, Commission shall give written notice to
Developer informing Developer of Commission's election with respect to the Objections. If Commission
fails to give written notice of its election within such five (5) day period, then Commission shall be deemed to
have elected to attempt to cure the Objections. In the event an updated Title Commitment, updated
Survey, or disclosure through any other means discloses a defect in the title to the Property after the
Discretionary Termination Date, and such defect was not known to the Developer, Developer shall have
5
seven (7) business days to examine the disclosed defect and make an Objection if Developer deems it
necessary to do so. Any such Objection made after the Discretionary Termination Date, shall be handled
as if the Objection were made prior to the Discretionary Termination Date.
(a) Non -Cure of Obiections. If Commission elects not to attempt to cure any Objections or if,
after electing to attempt to cure the Objections: (A) Commission determines that it is unable
to remove, satisfy, or otherwise cure any Objections; and (B) Commission gives to
Developer written notice of such determination; then Developer's sole remedy under this
Agreement shall be to either: (A) elect to terminate this Agreement by written notice to
Commission, in which event: (1) the Earnest Money and all interest earned thereon shall
be refunded to Developer; and (2) the parties shall have no further right or obligation under
this Agreement (except for rights or obligations which expressly survive the termination of
this Agreement); or (B) waive the Objections and continue the transaction contemplated by
this Agreement. If Commission does remove, satisfy, or otherwise cure the Objections
within the Commission Cure Period, then this Agreement shall continue in full force and
effect.
(b) Termination Due to Obiections. To terminate this Agreement pursuant to this Section 2.2,
Developer must give written notice to Commission of Developer's election to terminate not
later than ten (10) business days after: (A) receipt of written notice from Commission of
Commission's election not to attempt to cure any Objection; or (B) receipt of written notice
from Commission of Commission's determination, having previously elected to attempt to
cure, that it is unable to do so. If Developer fails to give timely notice of its election to
terminate due to an Objection, then: (A) Developer's right to terminate this Agreement
under this Section shall expire; and (B) any uncured Objections shall be deemed to be
accepted by Developer (the "Permitted Encumbrances"). Moreover, the Permitted
Encumbrances shall be deemed to include: (A) any matter disclosed on the Survey or the
Title Commitment to which Developer does not timely object or which expressly are
approved by Developer in writing; and (B) any Objection that is waived or deemed to have
been waived by Developer pursuant to the terms and conditions of this Agreement.
ARTICLE 3
REPRESENTATIONS
3.1 Commission Representations. Commission represents and warrants to Developer the
following:
(a) Title. Commission owns fee simple title to the Property.
(b) Authority. Commission has all necessary power and authority to: (A) dispose of the
Property; (B) execute and deliver this Agreement, the Commission Closing Documents,
and all other documents or instruments to be executed and delivered by Developer
pursuant to this Agreement; and (C) incur and satisfy all obligations of Commission
provided herein; and the person executing this Agreement for Commission has been fully
authorized and duly empowered to bind Commission.
(c) Compliance. Commission has complied with all Applicable Laws relating to: (A) the
ownership and operation of the Property (B) the acquisition, public offering, and disposition
of the Property and the selection of Developer for the development of the Property; and (C)
execution and delivery this Agreement, and incurrence and satisfaction of all obligations of
Commission provided herein.
6
(d) Resolution. Commission duly adopted Resolutions, true, accurate, and
complete copies of which are attached hereto as Exhibit F (collectively, the
"Resolutions"), and: (A) the Resolutions were approved as required by Applicable Laws:
(1) at a properly called, noticed, held, and conducted public meeting; and (2) by affirmative
concurring votes of at least three (3) of Commission's redevelopment commissioners; (B)
the Resolutions specifically: (1) authorize: (AA) the public offering of the Property for
disposition; (BB) the request for proposals for acquisition of the Property; (CC) the receipt
of such proposals from bidders; (DO) the selection of a winning bidder and proposal; and
(EE) the disposition of the Property to that selected bidder in accordance with its proposal;
and (2) approve the selection of Developer and its development proposal as required by
Applicable Laws; and (C) the Resolutions remain in full force and effect without
amendment or modification.
(e) Enforceability. This Agreement, the Commission Closing Documents, and any other
documents and/or instruments to be executed and delivered by Commission pursuant to
this Agreement: (A) have been duly authorized by all requisite action on the part of
Commission; and (B) when executed and delivered, will constitute valid and legally binding
obligations of Commission enforceable in accordance with their respective terms.
Litigation. Commission has not received any service of process or other notice of, and
does not otherwise have any knowledge of, any filed, existing, pending, or threatened
litigation, suit, arbitration, claim, unsatisfied order or judgment, investigation, action, or
proceeding before any court or governmental agency affecting Commission, the Property,
the Resolution, or this Agreement that, individually or in the aggregate, if adversely
determined, could affect adversely: (A) the Property, the Resolution, or this Agreement;
and/or (B) the performance and compliance by Commission with the terms, conditions, and
provisions of this Agreement.
(f)
(g) No Conflict. The performance and compliance by Commission with the terms, conditions,
and provisions of this Agreement, the Commission Closing Documents, or any other
documents or instruments to be executed and delivered by Commission pursuant to this
Agreement do not and will not conflict with, or result in any violation of any of, the terms,
conditions, or provisions of the Resolutions or any agreement, obligation, lease, license, or
Applicable Law binding on, or relating to, Commission, the Property, the Resolutions, or
this Agreement.
(h) Notices. Commission has not received, nor has the City issued, any written notice or
citation of: (A) any existing and/or uncorrected violation of any fire, zoning, building,
environmental, or health law or regulation, or any other Applicable Law affecting the
Property; or (B) a taking or condemnation of, or intent to take or condemn, all or any portion
of the Property.
(i) Claims. There are no unpaid claims: (A) of contractors, materialmen, suppliers, or
laborers: (1) with which or whom Commission or its agents, representatives, officers,
members, managers, directors, contractors, consultants, licensees, or employees has
contracted; or (2) by which or whom work, materials, supplies, or labor benefitting
Commission or the Property has been performed or provided; and (B) that could give rise
to a lien against the Property.
The continued validity in all respects of the representations and warranties made by Commission in this
Section, continuing from the Effective Date to the Closing (the "Pre -Closing Period"), shall be a condition
precedent to Developer's obligations hereunder. Commission shall take all actions necessary: (A) so that
the representations and warranties in Subsections 3.1(a), (b). (c), (d), (e), (q) and (i) remain valid in all
7
respects during the Pre -Closing Period and to promptly provide Developer with notice of any change to the
Commission's representations and warranties in Subsections 3.1 ff] and (h); and (B) during the Pre -Closing
Period, to correct any violation of any existing and/or uncorrected fire, zoning, building, or health law or
regulation, or any other Applicable Law affecting the Property; provided that correction of any violation of
any existing and/or uncorrected environmental law or regulation affecting the Property shall be undertaken
and completed in accordance with the terms and conditions of Exhibit Q. In the event Developer
terminates this Agreement on the basis that any of the representations and warranties made by
Commission in this Section become invalid, the Earnest Money and all interest earned thereon shall be
refunded to Developer. All representations and warranties by Commission contained this Article shall: (A)
be deemed remade as of the Closing Date; and (B) shall survive the Closing for one (1) year; provided that
such representations and warranties shall not terminate with respect to any representation and warranty to
which Developer, before the expiration of the one (1) year period, shall have made a claim by delivering
written notice of such claim (stating in reasonable detail the basis of such claim) to Commission.
3.2 Developer Representations. Developer represents and warrants to Commission the following:
(a) Existence. Developer is a corporation, duly organized and validly existing under the
Applicable Laws of the Commonwelath of Kentucky.
(b) Authority. Developer has all necessary power and authority to: (A) acquire the Property;
(B) execute and deliver this Agreement and any other documents or instruments to be
executed and delivered by Developer pursuant to this Agreement; and (C) perform all of its
obligations hereunder and thereunder.
(c) Enforceability. This Agreement and any other documents or instruments to be executed
and delivered by Developer pursuant to this Agreement: (A) have been duly authorized by
all requisite action on the part of Developer; and (B) when executed and delivered, will
constitute a valid and legally binding obligation of Developer enforceable in accordance
with their respective terms.
(d) Litigation. Developer has not received any service of process or other written notice of,
and does not otherwise have any knowledge of, any filed, existing, pending, or threatened
(in writing) litigation, suit, arbitration, claim, unsatisfied order or judgment, investigation,
action, or proceeding before any court or governmental agency affecting Developer that,
individually or in the aggregate, if adversely determined, could affect materially and
adversely: (A) this Agreement; and/or (B) the performance and compliance by Developer
with the terms, conditions, and provisions of this Agreement.
(e) No Conflict. To Developer's actual knowledge, the performance and compliance by
Developer with the terms, conditions, and provisions of this Agreement or any other
documents or instruments to be executed and delivered by Developer pursuant to this
Agreement do not and will not conflict with, or result in any violation of any of the terms,
conditions, or provisions of any agreement, obligation, lease, license, or Applicable Law
binding on, or relating to, Developer or this Agreement, which violation could materially and
adversely affect Developer's obligations under this Agreement.
(f) Orcanization. The organizational chart of Developer attached hereto as Exhibit C is true,
correct, and complete in all material respects.
(g)
OFAC Order. To Developer's actual knowledge, Developer is in material compliance with
all Applicable Laws that relate to Developer and all beneficial owners of Developer,
including, without limitation, the requirements of Executive Order No. 133224, 66 Fed Reg.
49079 (September 25, 2001) (the "Order") and other similar requirements contained in the
8
rules and regulations of the Office of Foreign Asset Control, Department of the Treasury
("OFAC") and in any enabling legislation or other Execution Orders in respect thereof (the
Order and such other rules, regulations, legislation, or orders are collectively called the
"Orders"). To Developer's actual knowledge, neither Developer nor any beneficial owner
of Developer is listed on the Specially Designated Nationals and Blocked Persons List
maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist
organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant
to any other applicable Orders.
All representations and warranties by Developer contained in this Article shall: (A) be deemed remade as of
the Closing Date; and (B) shall survive the Closing for one (1) year; provided that such representations and
warranties shall not terminate with respect to any representation and warranty to which Commission, before
the expiration of the one (1) year period, shall have made a claim by delivering written notice of such claim
(stating in reasonable detail the basis of such claim) to Developer.
ARTICLE 4
PLAN APPROVAL
4.1 Proiect Reouirernents. The parties acknowledge that Commission is entering into this
Agreement based upon Developer's representations that it will develop the Project (or require and cause
the Project to be developed) in accordance with the following criteria (collectively, the "Project
Requirements"):
(1) plan and construct a mixed-use commercial real estate development project (which may
include hotel, office, restaurant, retail, and other commercial improvements and uses) on
the Property depicted on Exhibit ID attached hereto and substantially consistent with the
final site plan subsequently approved by Commission as provided in Section 4.2; and
(ii) develop and construct improvements (the "Improvements") for such mixed-use
commercial real estate development project, which may include hotel, office, restaurant,
retail, and other commercial improvements and uses.
The parties further acknowledge that: (A) Developer, itself, may (and is permitted by the terms and
conditions of this Agreement to) develop and construct only certain Improvements (i.e., certain portions of
the Project); and (B) Developer may sell to third parties portions of the Property on which Developer will
require and cause the third party purchaser to develop and construct other Improvements (i.e., other
portions of the Project) in accordance with the Project Requirements and the terms and conditions of this
Agreement; provided that Developer requires and causes the third party purchasers to: (A) assume and
undertake the obligations of Developer to develop and construct such other Improvements; and
(B) complete construction of such other Improvements in accordance with the Project Requirements and
the terms and conditions of this Agreement. For example, Developer may (and is permitted by the terms
and conditions of this Agreement to): (A) construct only infrastructure Improvements and develop only
pad -ready sites that are served and supported by Developer's infrastructure Improvements; and (B) sell the
pad -ready sites to third party purchasers; and (C) require and cause the third party purchasers to: (1)
assume and undertake the obligations of Developer to develop and construct other Improvements (such as
hotel, office, restaurant, retail, and other commercial buildings) on the pad -ready sites; and (2) complete
construction of such Improvements in accordance with the Project Requirements and the terms and
conditions of this Agreement.
4.2 Proiect Plans. Within ninety (90) days after the Discretionary Termination Date (unless
this Agreement has been terminated), Developer shall submit to the Executive Director of Commission, two
(2) complete sets of its preliminary plans and drawings for the Project, which shall include: (A) a site plan
(the "Site Plan"); (B) landscape plan; (C) utility and infrastructure plans; (D) sign plans; (E) construction
9
schedule with milestone completion dates; and (F) Developer's construction budget (collectively, the
"Project Plans"). The Project Plans shall: (A) incorporate the Project Requirements; and (B) be subject to
the approval of Commission, which approval shall not be withheld, conditioned, delayed, or denied
unreasonably.
(a) Commission AoDroval. Within fifteen (15) business days after Commission receives the
Project Plans, Commission shall deliver to Developer written notice that it approves or
rejects the Project Plans; provided that: (A) Commission shall not reject any part of the
submitted Project Plans that is consistent with this Agreement or satisfies the Project
design standards set forth on Exhibit E (the "Project Standards"); and (B) if Commission
rejects all or any part of the Project Plans, then such notice shall: (1) specify the part or
parts that Commission is rejecting; and (2) include the specific basis for such rejection. Any
parts of the submitted Project Plans that are not rejected shall be deemed to be approved
by Commission.
(b) Re-submission. If, at any stage of the Project Plans approval process, Commission,
rather than approving any submitted or resubmitted Project Plans, rejects any part of the
Project Plans as provided in Subsection 4.2(a), then, within thirty (30) days after Developer
receives notice from Commission that it has rejected any part of any submitted or
resubmitted Project Plans, Developer shall revise and resubmit the Project Plans to
Commission. Within fifteen (15) business days after Commission receives the
resubmitted Project Plans, Commission shall deliver to Developer written notice that it
approves or rejects the resubmitted Project Plans; provided that: (A) Commission shall not
reject any part of the resubmitted Project Plans that is consistent with the Project
Standards or other parts of the Project Plans that Commission either has approved or is
deemed to have approved; and (B) if Commission rejects all or any part of the resubmitted
Project Plans, then such notice shall: (1) specify the part or parts that Commission is
rejecting; and (2) include the specific basis for such rejection. Any parts of the resubmitted
Project Plans that are not rejected shall be deemed to be approved by Commission. The
process for which this Subsection provides shall be repeated by the parties until either the
Project Plans are approved by Commission or a party terminates this Agreement as
permitted by the terms and conditions of Subsection 4.2(c).
(c) Termination Rights. If Commission does not approve the Project Plans within sixty (60)
days after the initial submission date, then, at any time thereafter until the Project Plans are
approved, Developer may terminate this Agreement, and, if Commission does not approve
the Project Plans within one hundred twenty (120) days after the initial submission date,
then, at any time thereafter until the Project Plans are approved, Commission may
terminate this Agreement. Upon any termination of this Agreement pursuant to this
Subsection: (A) the Earnest Money shall be refunded to Developer; and (B) the parties
shall have no further rights or obligations under this Agreement (except for rights or
obligations which expressly survive the termination of this Agreement).
(d) Proiect Plan Changes. Upon Commission approving the Project Plans, the Project Plans
shall be final, subject to modification by: (A) approved Building Plans (as defined herein);
and/or (B) change orders that either are: (1) submitted by Developer and approved by
Commission; or (2) prepared by Developer and provide only for minor modifications to the
Project Plans that: (AA) are consistent with the Project Standards and the Applicable Laws;
(BB) were not rejected by Commission as part of the Project Plans approval process; and
(CC) are shown on proposed change orders delivered in advance to Commission; which
minor modification change orders may be made part of the final Project Plans and
implemented by Developer without the approval of Commission.
10
(e) Change Order Approval. If Developer desires to make any changes to the Project Plans
that requires the approval of Commission, then Developer shall submit a change order
request to Commission for approval (the "Change Order Request"), which approval shall
not be withheld, conditioned, delayed, or denied unreasonably. Within fifteen (15)
business days after Commission receives a Change Order Request, Commission shall
deliver to Developer written notice that it approves or rejects the Change Order Request;
provided that, if Commission rejects all or any part of a Change Order Request, then such
notice shall: (A) specify the part or parts that Commission is rejecting; and (B) include the
specific basis for such rejection. If Commission fails to give written notice of its election
regarding such Change Order Request within such fifteen (15) business day period, then
Commission shall be deemed to have approved such Change Order Request. If
Commission approves or is deemed to approve a Change Order Request, then
Commission and Developer shall execute a change order.
ARTICLE 5
PROJECT CONSTRUCTION
5.1 Developer's Covenants. The parties acknowledge that Commission is entering into this
Agreement based upon the Developer's compliance with the following covenants and conditions after
Closing (collectively, the "Developer's Covenants").
(i) Developer shall construct the Project in substantial accordance with the Project
Requirements and the Project Plans approved by Commission pursuant to
Section 4.2 and Subsection 12.19(a).
(ii) Developer shall: (A) commence the portion of the Project designated as the
"Phase I — Pad Preparation" on Exhibit D attached hereto (as the same may be
updated in the Project Plans pursuant to Section 4.2) within sixty (60) days after
the later to occur of: (1) the Closing Date; or (2) the date on which Commission has
satisfied all of its obligations under Section 12.19; and (B) complete the
"Phase I — Pad Preparation" in substantial accordance with the Project Plans on or
before the date one (1) year after the date on which Developer is obligated by the
terms and conditions of this Subsection to commence the "Phase I — Pad
Preparation"; all subject to Force Majeure (as defined herein) (the "Construction
Condition").
The Developer's Covenants shall be: (A) real covenants that bind and run with the title to the Property; and
(B) memorialized in the Deed (as defined herein). Notwithstanding any other term or condition of this
Agreement, Commission shall have all rights at law and equity to enforce the Developer's Covenants.
5.2 Construction Condition.
(a) Reversionary Riaht. In the event that: (A) Developer fails to substantially comply with the
Construction Condition; and (B) such failure to comply continues for thirty (30) days after
written notice of such specific failures to comply is delivered by Commission to Developer;
fee title to the Property shall revert to Commission upon Commission: (1) delivering to
Developer written notice that the Construction Condition has not been satisfied (after the
expiration of the cure period provided in this Subsection); (2) refunding to Developer the
Purchase Price Tess any reasonable third party costs that Commission incurred in
exercising its reversionary rights; (3) paying to Developer the full Infrastructure
Reimbursement (as defined herein); and (4) complying in full with the Lender Protections
(as defined herein) (collectively, the "Reversionary Right"); provided that Commission
shall exercise the Reversionary Right, if, at all, within thirty (30) days after the failure of the
11
Construction Condition; and further provided that, if the nature of the failure to comply is
such that it cannot be cured within the thirty (30) day cure period, then no default shall exist
(and Commission may not exercise the Reversionary Right) if Developer: (A) commences
to cure the failure within the thirty (30) day period; and (B) thereafter diligently pursues the
same to completion; all subject to Force Majeure.
(b) Exercise of Riaht. In the event Commission exercises the Reversionary Right, Developer
shall be entitled to reimbursement in an amount equal to: (A) the costs to design and
construct any infrastructure improvements to the Property in substantial accordance with
the Project Requirements and the approved Project Plans (including engineering costs and
fees); plus (B) the costs to design and perform Phase I — Pad Preparation in substantial
accordance with the Project Plans (including engineering costs and fees) (the
"Infrastructure Reimbursement"); provided that, in all events, the amount of the
Infrastructure Reimbursement shall not be less than the outstanding principal balance of
any mortgage loan advances made to pay Project costs, together with accrued interest
thereon.
(c) Third Party Debt. Commission acknowledges that Developer's funding sources for the
construction and completion of the Project may include third party debt, and Commission
agrees to make commercially reasonable accommodations to such third party for
Developer to obtain such debt, including, without limitation, granting such third party: (A)
written notice and a reasonable right to cure any failure of Developer to perform its
obligations under this Agreement prior to exercising Commission's Reversionary Right;
and (B) other rights and protections reasonably required or requested by any such third
party, including those set forth on Exhibit G (collectively, the "Lender Protections").
(d) Individual Lot Releases. The Reversionary Right shall be: (A) memorialized in the Deed;
and (B) held and enforced exclusively by Commission or the City; and, accordingly, the
Reversionary right may not be assigned or transferred to, or held or enforced by, any other
party. So long as Developer is in compliance with its obligations under this Agreement,
and in connection with the closing of a conveyance, Commission shall record in the Office
of the Clark County Recorder (the "Recorder's Office"): (A) releases of individual
Improved Lots (as defined herein) being conveyed pursuant to the terms and conditions of
a Qualified Purchase Agreement (as defined herein) from the Reversionary Right, and
(B) modifications of the Deed reflecting such release and that the Construction Condition
has been satisfied with respect to the Improved Lot being sold (collectively, the "Partial
Release Documents"), subject to the following conditions:
(i)
Commission shall have received from Developer at least five (5) business days
prior to the closing written notice identifying: (A) the date proposed for such
release; and (B) the Improved Lot to be released; and
(ii) The Partial Release Documents shall be: (A) prepared by Developer at its
expense; provided, however, that Commission shall be responsible for its own
attorneys' fees incurred in connection with the Partial Release Documents; and (B)
substantially in the form and content satisfactory to Commission, in its reasonable
discretion. The executed Partial Release Documents shall be delivered in escrow
to either the title closing agent handling such Improved Lot sale or the Escrow
Agent; and further provided that the Partial Release Documents shall not be
released from escrow until after the consummation of the proposed transaction
pursuant to the terms and conditions of the Qualified Purchase Agreement.
12
(e) Non -Disturbance. Commission agrees to not disturb the occupancy of any third party
unaffiliated with Developer or Developer's owners or employees pursuant to written leases
or licenses with respect to portions of the Property that are consistent with the Developer's
obligations under this Agreement, even if Commission exercises the Reversionary Right.
Commission shall acknowledge the tenant and licensee non -disturbance obligation
described in this Subsection in writing; provided that the tenant or licensee at issue agrees
to attorn to Commission in the event the Reversionary Right is exercised.
(f)
Full Right Release. Upon satisfaction of the Construction Condition, Commission shall
record in the Recorder's Office: (A) a full release of all of the Property from the
Reversionary Right; and (B) modifications of the Deed reflecting such release and that the
Construction Condition has been satisfied with respect to all of the Property (the "Full
Release Documents"). The Full Release Documents shall be: (A) prepared by
Developer at its expense; provided, however, that Commission shall be responsible for its
own attorneys' fees incurred in connection with the Full Release Documents; and (B) in
form and content satisfactory to Commission, in its reasonable discretion. The executed
Full Release Documents shall be delivered to Developer to be recorded in the Recorder's
Office.
(g) Defined Terms.
(i)
"Improved Lot" shall mean a platted and subdivided lot or parcel of the Property
with respect to which the Construction Condition (if applicable) has been satisfied
(ii) "Qualified Purchase Agreement" shall mean a purchase agreement for an
Improved Lot: (A) that is in full force and effect between Developer and a third party
unaffiliated with Developer or Developer's owners or employees; and (B) under
which the purchaser's termination or recision rights with respect ro due diligence
and site investigation have terminated, expired, or been waived.
The provisions of this Section shall: (A) survive the termination of this Agreement or the Closing; and (B) at
the request of Developer, some or all such provisions shall be memorialized in the Deed, in addition to the
provisions of this Section that expressly are required hereby to be memorialized in the Deed, or in a
separate agreement.
ARTICLE 6
CLOSING CONDITIONS
6.1 Commission Closina Conditions. Commission's obligation to proceed with Closing is
contingent upon satisfaction (or Commission's waiver) of the following (collectively, the "Commission
Closing Conditions"):
(a) Representations and Warranties. All representations and warranties of Developer made
in this Agreement shall be true, correct, and complete in all material respects on and as of
the Closing Date, as if such representations and warranties were first made on the Closing
Date, and Developer shall have delivered to Commission a certificate stating that all
representations and warranties of Developer made in this Agreement are true, correct, and
complete in all material respects on and as of the Closing Date.
(b) Developer Closing Documents. Developer shall have delivered to Commission all of the
Developer Closing Documents (as defined herein) in accordance with the terms and
conditions of this Agreement.
13
(c) Project Plan Approval. Commission shall have approved the Project Plans in accordance
with the terms and conditions of Section 4.2.
(d) Phase I Funding. Developer shall have provided Commission with either: (A) a
performance bond of a sufficient amount and on suitable terms for the construction and
completion of the site improvements for Phase I of the Project; or (B) at the election of
Developer and in lieu of a performance bond, evidence reasonably satisfactory to
Commission of Developer's Project funding sources (both from contributed equity and third
party debt) for the construction and completion of the site improvements for Phase I of the
Project, which evidence shall include a loan term sheet or commitment issued by a bank or
other financial institution with a per -project lending capacity that exceeds the projected
costs of the construction and completion of Phase I of the Project.
(e) Remainina Proiect Funding. Developer shall have provided Commission with a feasible
plan for obtaining Developer's Project funding sources for the construction and completion
of the remainder of the Project, which plan shall include: (A) information with respect to
funding sources (both from contributed equity and third party debt) for the construction and
completion of Phase 1 of the Project improvements; and (B) sample letters of intent .
(f) Developer Performance. Developer shall have performed all covenants and obligations
required to be performed by Developer under this Agreement on or before the Closing
Date.
6.2 Failure of a Commission Closino Condition. If any of the Commission Closing Conditions
has not been satisfied on or before the Closing Date (such Commission satisfaction to the Commission
Closing Conditions not to be withheld, conditioned, delayed, or denied unreasonably), then Commission, in
its sole discretion, may elect to either: (A) extend the Closing Date for up to thirty (30) days in order to afford
Developer additional time to attempt to satisfy the Commission Closing Conditions; or (B) terminate this
Agreement by written notice to Developer, in which event, the parties shall have no further right or obligation
under this Agreement (except for rights or obligations which expressly survive the termination of this
Agreement); provided that, if Commission terminates this Agreement because a Commission Closing
Condition in Subsection 6.1(c) or (d) is not satisfied, then the Earnest Money shall be refunded to
Developer. Commission shall have the right to unilaterally waive any Commission Closing Condition by
written notice to Developer or by proceeding to Closing.
6.3 Developer Closina Conditions. Developer's obligation to proceed with Closing is contingent
upon satisfaction (or Developer's waiver) of the following (collectively, the "Developer Closing
Conditions"):
(a) Representations and Warranties,. All representations and warranties of Commission
made in this Agreement, including without limitation the representation made in Subsection
6.3(p), shall be true, correct, and complete in all material respects on and as of the Closing
Date, as if such representations and warranties were first made on the Closing Date, and
Commission shall have delivered to Developer a certificate stating that all representations
and warranties of Commission made in this Agreement are true, correct, and complete in
all material respects on and as of the Closing Date and shall survive the Closing for a
period of one (1) year as provided in Section 3.1 hereof.
(b) Commission Closing Documents. Commission shall have delivered to Developer all of
the Commission Closing Documents (as defined herein) in accordance with the terms and
conditions of this Agreement.
14
(c) Proiect Plan Approval. Commission shall have approved the Project Plans in accordance
with the terms and conditions of Section 4.2.
(d) Proiect Funding. Developer shall have: (A) obtained funding sources (both from
contributed equity and third party debt) in a sufficient amount and on suitable terms for the
construction and completion of Phase I of the Project improvements; and (B) determined
that it will be able to obtain Developer's Project funding sources in a sufficient amount and
on suitable terms for the construction and completion of the remainder of the Project in
accordance with the plan provided to Commission.
(e) Proiect Permits. Developer shall have: (A) obtained, at its expense, all necessary
governmental and private approvals and permits required for the development and
construction of Improvements for Phase 1 of the Project, including the appropriate zoning
for Phase 1 of the Project, which shall mean that the desired final, unappealable zoning has
been obtained; and (B) determined that it will be able to obtain all necessary governmental
and private approvals and permits required for the development, construction, completion,
use, occupancy, and operation of the Improvements for the remainder of the Project, again
including the appropriate zoning for the remainder of the Project; on terms and conditions,
and with covenants and commitments, that are acceptable to Developer (collectively, the
"Project Permits").
(f)
(g)
Stormwater System. Developer shall have: (A) confirmed that the City's stormwater
sewer system provides (or, after completion of the Flood Improvements (as defined herein)
will provide) sufficient stormwater drainage from the Property after the Project is completed
and occupied; and (B) obtained the approval of the Project Plans by the City Drainage
Board, as the Project Plans relate to stormwater drainage from the Property.
INDOT Commitments. The Indiana Department of Transportation ("INDOT") shall have
committed and agreed to complete in 2017 the planned public street and right-of-way
improvements on and along West 10th St., as generally depicted and described on
Exhibit H (the "INDOT Improvements").
(h) Street Improvements Plans. Commission or the City, at its or their expense, shall have
completed the design of the planned public street, streetscape, and right-of-way
improvements to provide improved ingress, egress, traffic flow, and traffic control on and
along West 9th St. from the west side of the Interstate 65 underpass to the intersection of
Spring Street, the West 9`h St. intersections with Spring St. and Indiana Avenue, Spring
Street from West 101" St. to West 9th St., cul-de-sac at the end of Ohio Avenue, and Indiana
Avenue from West 10th St. to West 7th St., all as generally depicted on Exhibit J and
including without limitation right turn access onto Indiana Avenue from West 101" St., a full
movement signalized traffic light at the West 9th St. intersection with Spring St., and an
access road as generally depicted on Exhibit 1 connecting Spring Street and Indiana
Avenue across the Access Parcel (as defined herein) providing right in and right out access
from and to Spring Street (all of the foregoing collectively, the "Street Improvements"),
which Street Improvements shall be maintained going forward by Commission or the City,
and Developer shall have approved the design of the Street Improvements, which approval
shall not be withheld, conditioned, or delayed unreasonably.
(i)
Street Improvements Permits. Commission or the City, at its or their expense, shall have:
(A) completed final drawings of, and specifications for, the Street Improvements in
accordance with the design approved by Developer; (B) obtained all necessary
governmental and private approvals and permits required for the construction and
15
completion of the Street Improvements in accordance with such final drawings and
specifications; and (C) provided reasonably sufficient proof thereof to Developer.
(j) Street Improvements Funding. Commission or the City shall have: (A) completed bid
packages for the construction and completion of the Street Improvements in accordance
with the final drawings and specifications for the Street Improvements approved by
Developer; (B) identified and appropriated sufficient funds to pay the costs of constructing
and completing the Street Improvements in accordance with such final drawings and
specifications; and (C) provided reasonably sufficient proof thereof to Developer.
(k) INDOT Ingress and Egress Approval. INDOT and the City shall have consented and
committed for the benefit of Developer and the Property that after the INDOT
Improvements and the Street Improvements are completed in satisfaction of the terms and
conditions of Subsections 6.3[a) and (h), INDOT and the City shall permit (and not prohibit,
preclude, impede, or inhibit): (A) the ingress to the Property from West 10th St.,
West 9th St., Indiana Ave. and Spring St. (including, without limitation, ingress via the
access road depicted on Exhibit I); and (B) the egress from the Property to West 9th St.,
Indiana Ave. and Spring St. (including, without limitation, egress via the access road
depicted on Exhibit 1); all as generally depicted on Exhibits I and J as the same may be
modified during the Project Plan process; together with the installation and continuation of
associated directional signage reasonably acceptable to Developer, and the terms and
conditions of such consent and commitment shall be reasonably acceptable to Developer.
Utilities improvements. Commission or the City shall have: (A) completed the
construction and installation of the planned upgraded utility pipes, lines, fixtures, and
facilities within the General Utility Easement (as defined herein), as generally depicted and
described on Exhibit L (the "Utility Improvements") and in accordance with: (1) the final
drawings of, and specifications for, the Utility Improvements provided to Developer; (2) all
governmental and private approvals and permits obtained or issued for the construction
and installation of the Utility Improvements; and (3) all Applicable Laws; (B) paid in full all
design and engineering costs and all costs of work and materials related to the
construction and installation of the Utilities Improvements; and (C) provided reasonably
sufficient proof thereof to Developer.
(I)
(m)
Utility Easement Area. Commission and Developer shall have agreed on the legal
description of the General Utility Easement that includes within its boundaries the Utilities
Improvements and such additional area of the Property as cannot legally or practically be
improved and used as a part of the Project because of the proximity of such area to the
Utilities Improvements (the "Easement Area").
(n) [Intentionally Orxrittedl.
(o) Phase li Assessment. Commission, at its expense, shall have caused: (A) a true, correct,
and complete copy of the existing Phase II environmental assessment(s) of the entire
Property (including the groundwater under or flowing toward the Property) (the "Existing
Phase II Assessment") to be delivered to Developer; (B) an update to the Existing Phase
II Assessment for the entire Property (the "Updated Phase II Assessment") to be
undertaken and completed by ATC Group Services LLC (the "Environmental Engineer")
in accordance with the assessment parameters set forth on Exhibit 0; (C) both the Existing
Phase II Assessment and the Updated Phase II Assessment to be certified to Developer
and the Developer's lender; and (D) a true, correct, and complete copy of the Updated
Phase II Assessment to be delivered to Developer.
16
(p)
(q)
Disclosed Environmental Matters. Commission represents to Developer that: (A) the
Existing Phase II Assessment has been completed and has disclosed the environmental
matters listed on Exhibit 0 (the "Disclosed Environmental Matters") involving the
hazardous wastes, materials, or substances (the "Hazardous Materials") identified in
such list; (B) no Disclosed Environmental Matters are within the purview of the United
States Environmental Protection Agency ("USEPA") to address; and (C) all Disclosed
Environmental Matters may be addressed by the Indiana Department of Environmental
Management ("IDEM"), without the participation of USEPA. Any additional environmental
matters disclosed by the Updated Phase II Assessment (the "New Disclosed
Environmental Matters") must also be outside the purview of the USEPA and able to be
addressed by IDEM.
IDEM Comfort Letters. Commission shall have obtained from IDEM with respect to the
Disclosed Environmental Matters, and any New Disclosed Environmental Matters, one or
more Indiana Brownfields Program Comfort Letters that: (A) are addressed to Developer
and in form and substance satisfactory to Developer; (B) cover all Disclosed Environmental
Matters and any New Disclosed Environmental Matters; and (C) include or impose only
such conditions, requirements, or restrictions as Developer determines to be acceptable
and compatible with the development, construction, completion, use, occupancy, and
operation of the Project Improvements.
(r) Remediation Plan. For all Disclosed Environmental Matters and any New Disclosed
Environmental Matters, then Commission or the City, at its or their expense, shall cause
the Environmental Engineer to: (A) prepare a plan to remediate all of the Disclosed
Environmental Matters and any New Disclosed Environmental Matters (the
"Environmental Remediation Plan") in accordance with the terms and conditions of
Exhibit 0; and (B) provide a true, correct, and complete copy of the Environmental
Remediation Plan to Developer in accordance with the terms and conditions of Exhibit Q.
(s) New Hazardous Materials. There shall have been no new Hazardous Material
discharged, released or disposed of on, under, or at the Property or any part thereof since
the date of the Updated Phase II Assessment, not caused by Developer or Developer's
Representatives.
(t) Title Policy Coveraae. Developer shall have determined that the Title Company will issue
(A) such endorsements to the Title Policy and (B) lender's policies with endorsements as
are reasonably requested by Developer or its lender.
(u) Commission Performance. Commission shall have performed all covenants and
obligations required to be performed by Commission under this Agreement on or before
the Closing Date.
6.4 Failure of a Developer Closing Condition. If any of the Developer Closing Conditions has
not been satisfied on or before the corresponding date set forth on Exhibit N, then Developer, in its sole
discretion, may elect to either: (A) in the case of Subsections 6.3(x1 -(k) above, extend the date for
satisfaction until the Discretionary Termination Date, in Developer's sole discretion, in order to afford
Commission additional time to attempt to satisfy the Developer Closing Conditions; (B) extend the Closing
Date for up to ninety (90) days in order to afford Commission additional time to attempt to satisfy the
Developer Closing Conditions; (C) in applicable cases, close the transaction contemplated by this
Agreement and proceed under the applicable terms and conditions of Section 12.19; or (D) terminate this
Agreement by written notice to Commission, in which event, the parties shall have no further right or
obligation under this Agreement (except for rights or obligations which expressly survive the termination of
this Agreement), and in which event, the Earnest Money shall be refunded to Developer. Developer shall
17
have the right to unilaterally waive any Developer Closing Condition by written notice to Commission or by
proceeding to the Closing under the applicable terms and conditions of Section 12.19.
ARTICLE 7
CLOSING DATE
The closing of the transaction contemplated by this Agreement (the "Closing") is to occur at or
through the office of the Escrow Agent on a date mutually agreeable to both Developer and Commission;
provided that such date shall occur: (A) within thirty (30) days after all of the Developer Closing Conditions
have been satisfied or waived by Developer; and (B) notwithstanding any other term or condition of this
Agreement, in all cases, on or before the date eighteen (18) months after the Effective Date (the "Closing
Date").
ARTICLE 8
PROPERTY TAX
Developer shall assume and be obligated to pay any and all real estate taxes and assessments
which first become a lien from and after Closing. Commission shall assume and be obligated to pay any
and all real estate taxes and assessments which first become a lien at any time before Closing, regardless
of when such taxes and assessments become due and payable; provided if: (A) there are taxes or
assessments that are the obligation of Commission to pay; and (B) such taxes and/or assessments become
due and payable after the Closing Date; then the amount of the taxes and/or assessments shall: (A) be
estimated, if not known, based on the most recent taxes and/or assessments that have become due and
payable, with the known or estimated amount credited against the Purchase Price at Closing; and (B) be
assumed by Developer and become the obligation of Developer to pay.
ARTICLE 9
CLOSING DELIVERIES
9.1 Closing Deliveries. For purposes of this Agreement, the Survey shall establish the legal
description of the Property and such legal description of the Property shall be used in the Deed, the Title
Policy (as herein defined), all other Commission Closing Documents and Developer Closing Documents,
and the Closing Statement.
(a) Commission Closing Documents. At the Closing and upon Developer's payment of the
Purchase Price as provided in Subsection 9.1(b)(i), Commission shall deliver to Developer the
following documents and instruments (collectively, the "Commission Closing Documents"):
(i) a special warranty deed (the "Deed"), conveying to Developer from Commission
fee simple title to the Property, free and clear of all liens and encumbrances,
except the Permitted Encumbrances, and including the Developer's Covenants,
the Reversionary Right, the Infrastructure Reimbursement, and the reservation of
a general utility easement in favor of Commission and the City across the portion of
the Property generally designated on Exhibit A-2 (the "General Utility
Easement"), subject to the Relocation Rights (as defined herein);
(ii) a non -foreign person affidavit to Developer;
(iii) a vendor's affidavit to the Title Company and Developer with commercially
reasonable terms and conditions sufficient to delete the standard exceptions from
the final Title Policy, except to the extent that the standard exceptions require a
survey in order to be deleted;
18
(iv) such instruments as are necessary to remove and release of record any Monetary
Liens and/or any other Objections that Commission is curing or correcting
(collectively, the "Lien Releases");
(v) an owner's policy of title insurance issued by the Title Company in the amount of
the Purchase Price or the Adjusted Purchase Price (as defined herein), in
Developer's sole discretion, and otherwise in accordance with the Title
Commitment, free and clear of all exceptions other than the Permitted
Encumbrances, the Developer's Covenants, the Reversionary Right, and the
General Utility Easement (the "Title Policy");
(vi) such disclosures and reports as are required by Applicable Laws in connection
with the conveyance of real property;
(vii) a certificate stating that all representations and warranties of Commission made in
this Agreement are true, correct, and complete in all material respects on and as of
the Closing Date;
(viii) a confirmation that the obligations of Commission set forth in the Sections and
Subsections listed on Exhibit 0 survive the Closing and remain the binding
obligations of Commission enforceable in accordance with their terms;
(ix) an opinion from legal counsel to the Commission that: (A) covers the matters
addressed in Subsections 3.1(b) -(h) and 9.1(a?(viii); and (B) is reasonably
acceptable in form and substance to legal counsel for Developer;
(x) a covenant that certain real property located in the City between the west
right-of-way of Spring St. and the east boundary of the Property, as generally
depicted on Exhibit I (the "Access Parcel") shall be: (A) used only for: (1) ingress
and egress to and from the Property from and to Spring St.; and (2) signage that
identifies the Property and the businesses operated on or from the Property (the
"Business Signage"); and for no other purposes; and (B) maintained by
Commission or the City in good, safe, and sightly condition that complies with all
Applicable Laws; which covenant (the "Use Covenant") shall: (A) be a real
covenant that binds and runs with title to the Access Parcel in perpetuity for the
benefit of Developer and other owners of the Property; (B) be enforceable by
Developer and other owners of the Property; (C) be recorded in the Recorder's
Office; (D) be in form and substance reasonably acceptable to Developer and
Commission; and (E) include an easement granted for the benefit of Developer
and owners of the Property to erect and install Business Signage on the Access
Parcel; and
(xi) such other documents as may be required by the terms and conditions of this
Agreement, or as may reasonably be necessary in order to consummate the
transaction contemplated by this Agreement.
(b) Develooer's Deliveries. At the Closing, Developer shall deliver to Commission the
following documents, instruments, and payment (except for the Purchase Price,
collectively, the "Developer Closing Documents"):
(i) the Purchase Price, subject to any reductions, credits, pro -rations, or adjustments
provided in this Agreement, as calculated and shown on the Closing Statement
(the "Adjusted Purchase Price");
19
(ii) such disclosures and reports as are required by Applicable Laws in connection
with the conveyance of real property;
(iii) a certificate stating that all representations and warranties of Developer made in
this Agreement are true, correct, and complete in all material respects on and as of
the Closing Date;
(1)
(iv) a confirmation that the obligations of Developer set forth in the Sections and
Subsections listed on Exhibit P survive the Closing and remain the binding
obligations of Developer enforceable in accordance with their terms;
(v) [Intentionally Omitted]; and
(vi) such other documents as may be required by the terms and conditions of this
Agreement, or as may reasonably be necessary in order to consummate the
transaction contemplated by this Agreement.
(c) Closing Statement. At the Closing, Commission and Developer shall each execute a
closing statement drafted by the Title Company or another person reasonably acceptable
to both Commission and Developer (the "Closing Statement"). The Closing Statement
shall include and show the following calculations:
(i)
the quotient of: (A) $1,200,000.00; divided by (B) the gross acreage of the Property
(the "Per Acre Price");
(ii) the product of: (A) the gross acreage of the Easement Area (determined based on
the legal description agreed by Commission and Developer pursuant to
Subsection 6.3(o)); multiplied by (B) the Per Acre Price (the "Easement Area
Amount"); and
(iii) the Easement Area Amount as a reduction in the Purchase Price.
(d) Cost Payment. Closing costs shall be paid by the parties as set forth below or as
otherwise specifically set forth in this Agreement; provided that, in the event any charge or
fee is not addressed by this Agreement, the charge or fee shall be paid according to local
Indiana custom.
9.2 Closing Costs.
(a) Developer Ctosina Costs. Developer shall be responsible for the payment of:
(i)
escrow or insured closing costs charged by the Escrow Agent or Title Company, if
any;
(ii) costs of the Title Commitment and costs for any endorsements to the Title Policy
and any premium for Developer's lender's policy of title insurance, including the
cost of any endorsements thereto;
(iii) costs of the Survey;
(iv) any costs associated with financing for the Project obtained by Developer;
20
(v) other customary charges to be paid by a purchaser, including, without limitation,
recordation of the deed and filing of the sales disclosure form; and
(vi) all architectural, engineering, and Site Inspection fees and costs (other than the
fees and costs to prepare and deliver the Existing Phase II Assessment and
Updated Phase II Assessment and any fees and costs associated with the
Environmental Remediation Pian), and any and all other due diligence costs
incurred by Developer in connection with the transaction.
(b) Commission Closing Costs. Commission shall be responsible for the payment of:
(i) the premium for the Title Policy;
(ii) costs and expenses that this Agreement expressly provides are to be paid by
Commission or the City, including, without limitation, the fees and costs to prepare
and deliver the Existing Phase II Assessment and Updated Phase II Assessment
and any fees and costs associated with the Environmental Remediation Plan; and
(iii) other customary charges to be paid by a seller, including, without limitation,
recordation of the Lien Releases and the Use Covenant.
Each party shall pay its own attorneys' fees, subject to any party's remedy for
reimbursement of reasonable attorneys' fees provided for in this Agreement.
ARTICLE 10
DEFAULT
10.1 Commission's Default. In the event that, before the Closing, Commission fails to perform
any of its obligations under this Agreement for any reason other than Developer's default, other events of
Force Majeure, or the permitted termination of this Agreement by Commission or Developer as expressly
provided in this Agreement, Developer shall be entitled, as its sole remedy, either to: (A) elect to terminate
this Agreement by written notice to Commission, in which event the Earnest Money shall be refunded to
Developer; or (B) enforce specific performance of Commission's obligations. Developer shall be deemed
to have elected to terminate this Agreement if Developer fails to file suit for specific performance against
Commission in a court having jurisdiction in the county and state in which the Property is located, on or
before sixty (60) days following the date upon which the Closing was to have occurred. In the event that,
after the Closing, Commission fails to perform any of its obligations under this Agreement that expressly
survive the Closing for any reason other than Developer's default or other events of Force Majeure,
Developer shall be entitled to exercise any remedy available at law or in equity, including, specifically,
to enforce specific performance of Commission's obligations, and this entitlement shall survive the Closing.
10.2 Developer's Default. In the event that, before the Closing, Developer fails to perform any
of its obligations under this Agreement for any reason other than Commission's default, other events of
Force Majeure, or the permitted termination of this Agreement by either Commission or Developer as
expressly provided in this Agreement, Commission shall be entitled, as its sole remedy, to terminate this
Agreement and receive the Earnest Money, and any interest earned thereon, as liquidated damages for the
breach of this Agreement, it being agreed between the parties to this Agreement that the actual damages to
Commission in the event of such breach are impractical to ascertain and the amount of the Earnest Money
is a reasonable estimate thereof. In the event that, after the Closing, Developer fails to perform any of its
obligations under this Agreement that expressly survive the Closing for any reason other than
Commission's default or other events of Force Majeure, Commission shall be entitled to exercise any
remedy available at law or in equity, including, specifically, to enforce specific performance of Developer's
obligations, and this entitlement shall survive the Closing.
21
10.3 Attorneys' Fees. In the event legal action is instituted by any party: (A) to enforce the
terms and conditions of this Agreement; or (B) which arises out of the execution of this Agreement; the
prevailing party in such legal action will be entitled to receive from the other party the prevailing party's
reasonable attorneys' fees and court costs, including, specifically, the costs of appeal, as may be
determined and awarded by the court in which the action is brought. The right to attorneys' fees shall
survive the termination of this Agreement or the Closing.
ARTICLE 11
DISCLAIMERS
11.1 Commission Disclaimers. SUBJECT TO, AND EXCEPT FOR, THE EXPRESS
REPRESENTATIONS AND WARRANTIES OF COMMISSION SET FORTH IN THIS AGREEMENT OR THE
COMMISSION CLOSING DOCUMENTS, IT IS UNDERSTOOD AND AGREED THAT COMMISSION IS NOT MAKING
AND HAS NOT AT ANY TIME MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE (OTHER THAN COMMISSION'S EXPRESS WARRANTIES OF TITLE SET FORTH
IN THIS AGREEMENT OR TO BE SET FORTH IN THE DEED OR ANY OTHER COMMISSION CLOSING
DOCUMENT), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE LAWS, THE TRUTH, ACCURACY, OR
COMPLETENESS OF THE DOCUMENTS OR ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF OF
COMMISSION TO DEVELOPER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. SUBJECT
TO, AND EXCEPT FOR: (A) THE EXPRESS REPRESENTATIONS AND WARRANTIES OF COMMISSION SET
FORTH IN THIS AGREEMENT OR THE COMMISSION CLOSING DOCUMENTS; (B) THE TERMS AND
CONDITIONS OF THIS AGREEMENT (INCLUDING, SPECIFICALLY, WITHOUT LIMITATION, OBLIGATIONS OF
COMMISSION UNDER THIS AGREEMENT) THAT EXPRESSLY SURVIVE CLOSING); AND THE PROVISIONS OF
THE COMMISSION CLOSING DOCUMENTS; DEVELOPER ACKNOWLEDGES AND AGREES THAT, UPON
CLOSING, COMMISSION SHALL SELL AND CONVEY TO DEVELOPER, AND DEVELOPER SHALL ACCEPT, THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS". SUBJECT TO, AND EXCEPT FOR, THE EXPRESS
REPRESENTATIONS AND WARRANTIES OF COMMISSION AS SET FORTH IN THIS AGREEMENT OR THE
COMMISSION CLOSING DOCUMENTS, DEVELOPER HAS NOT RELIED ON, AND WILL NOT RELY ON, AND
COMMISSION IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING
THERETO (INCLUDING, SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES
DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY COMMISSION, THE MANAGER
OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO
REPRESENT COMMISSION, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN
WRITING. DEVELOPER REPRESENTS TO COMMISSION THAT, EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, DEVELOPER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING,
SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL CONDITIONS
THEREOF, AS DEVELOPER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE PHYSICAL CONDITION OF
THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR
ON BEHALF OF COMMISSION OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN
SUCH REPRESENTATIONS, WARRANTIES, COVENANTS, AND OBLIGATIONS OF COMMISSION AS ARE
EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE COMMISSION CLOSING DOCUMENTS. SUBJECT TO,
AND EXCEPT FOR, REPRESENTATIONS, WARRANTIES, COVENANTS, AND OBLIGATIONS OF COMMISSION
AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE COMMISSION CLOSING DOCUMENTS, UPON
CLOSING, DEVELOPER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED
TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY
DEVELOPER'S INVESTIGATIONS, AND, SUBJECT TO, AND EXCEPT FOR, REPRESENTATIONS, WARRANTIES,
COVENANTS, AND OBLIGATIONS OF COMMISSION AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT
OR THE COMMISSION CLOSING DOCUMENTS, DEVELOPER SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED, AND RELEASED COMMISSION (AND COMMISSION'S MEMBERS, MANAGERS, OFFICERS,
DIRECTORS, EMPLOYEES, AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES
OF ACTION (INCLUDING, BUT NOT LIMITED TO, CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
22
LIABILITIES, COSTS, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES AND COURT
COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH DEVELOPER MIGHT
HAVE ASSERTED OR ALLEGED AGAINST COMMISSION (AND COMMISSION'S MEMBERS, MANAGERS,
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AT ANY TIME BY REASON OF, OR ARISING OUT OF,
ANY LATENT OR PATENT CONSTRUCTION DEFECTS, PHYSICAL CONDITIONS, VIOLATIONS OF ANY
APPLICABLE LAWS, OR ANY OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES, OR MATTERS
REGARDING THE PROPERTY. NOTHING IN THIS ARTICLE 11 SHALL BE DEEMED TO LIMIT COMMISSION'S
LIMITED WARRANTY OF TITLE TO BE SET FORTH IN THE DEED.
11.2 Disclaimers Survival. COMMISSION AND DEVELOPER ACKNOWLEDGE THAT THE
COMPENSATION TO BE PAID TO COMMISSION FOR THE PROPERTY REFLECTS THAT THE PROPERTY IS
BEING SOLD SUBJECT TO THE PROVISIONS OF THIS ARTICLE, AND COMMISSION AND DEVELOPER AGREE
THAT THE PROVISIONS OF THIS ARTICLE SHALL SURVIVE CLOSING.
ARTICLE 12
MISCELLANEOUS
12.1 Assignment. Developer shall not assign its rights or obligations under this Agreement to
another party without Commission's written consent, which shall not be unreasonably withheld,
conditioned, or delayed. Notwithstanding anything to the contrary in this Section, this Agreement may be
assigned by Developer without Commission's consent to: (A) an affiliate of Developer or any other entity
that is in control of, controlled by, or under common control with, Developer; provided that: (1) no such
assignment shall release Developer of its obligations or duties under this Agreement; and (2) the assignee
agrees to be specifically bound by the terms and conditions of this Agreement; and/or (B) lenders providing
third party debt for the Project; provided that: (1) no such assignment shall release Developer of its
obligations or duties under this Agreement; and (2) the terms and conditions of the Lender Protections shall
apply to, and provide the requirements and limitations of, such an assignment. Notwithstanding anything
to the contrary in this Section, Developer may sell the pad -ready sites to third party purchasers, and, in
conjunction with such a sale, the rights of Developer as they relate to the pad -ready site sold may be
extended to the third -party purchaser (with Developer still retaining the benefit of such rights); provided that:
(1) Developer shall require and cause the third party purchasers to: (AA) assume and undertake the
obligations of Developer to develop and construct other Improvements (such as hotel, office, restaurant,
retail, and other commercial buildings) on the pad -ready sites; and (BB) complete construction of such
Improvements in accordance with the Project Requirements and the terms and conditions of this
Agreement; and (2) no such assignment shall release Developer of its obligations or duties under this
Agreement.
12.2 Brokers. Each of Developer and Commission represent and warrant that they,
respectively, have not dealt with any broker, agent, finder, or similar party in connection with the transaction
contemplated by this Agreement, and each of Developer and Commission hereby indemnifies and holds
harmless the other from any liability, cost, or expense (including, without limitation, reasonable attorneys'
fees and costs of enforcement of the foregoing indemnity, whether arising in any underlying action or in the
enforcement of this right of indemnification) arising out of the falsity of the foregoing representation by such
party. The provisions of this Section shall survive the Closing or any earlier termination of this Agreement.
12.3 Aoolicable Law. This Agreement shall be governed by, and construed and enforced in
accordance with, the Applicable Laws of the State of Indiana.
12.4 Entire Agreement. This Agreement contains the entire agreement between the parties
relating to the transactions contemplated hereby, and all prior or contemporaneous agreements, oral or
written, are superseded hereby.
12.5 Time of Essence. Developer and Commission hereby agree that time is of the essence
with regard to the terms and conditions of this Agreement.
23
12.6 Bincfino Effect. AH of the representations, warranties, covenants, obligations, terms, and
conditions of this Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their
respective successors and permitted assigns.
12.7 Notices. All notices which are required or permitted under this Agreement shall be in
writing and deemed to have been given, delivered, or made, as the case may be (notwithstanding lack of
actual receipt by the addressee): (A) when delivered by personal delivery against a written receipt;
(B) one (1) business day after having been deposited with an expedited, overnight courier service marked
for next day delivery; or (C) when delivered by e-mail (except the next business day when delivered after
5:00 p.m. (EST)), addressed to the party to whom notice is intended to be given at the address set forth
below:
If to Commission:
With a copy to:
If to the Developer:
With a copy to:
City of Jeffersonville, IN
Rob Waiz, Executive Director
Jeffersonville Department of Redevelopment
500 Quartermaster Court
Jeffersonville, IN 47130
(812) 280-3801- telephone
Email: rwaiz@CityofJeff.net
City of Jeffersonville
Les Merkley, Corporation Counsel
500 Quartermaster Court
Jeffersonville, IN 47130
(812) 285-6493- telephone
Email: Imerkley@CityofJeff.net
Hogan Property Development Company
c/o Hogan Real Estate Company
9300 Shelbyville Road, Suite 1300
Louisville, KY 40222
Attn: Chief Operating Officer
(502) 426-1050 - telephone
Email: mleonard@hogandev.com
Hogan Property Development Company
c/o Hogan Real Estate Company
9300 Shelbyville Road, Suite 1300
Louisville, KY 40222
Attn: General Counsel
(502) 426-1050 - telephone
Email: esommer@hogandev.com
or to such other address as any party may from time to time designate by notice in writing to the other. The
refusal to accept delivery by any party or the inability to deliver any communication because of a changed
address of which no notice• has been given in accordance with this Section or an electronic malfunction
attributable to the receiving party shall constitute delivery.
12.8 Waiver. The failure of either party to: (A) exercise any right given hereunder; or (B) insist
upon strict compliance with any term, condition, covenant, or obligation specified herein; shall not constitute
24
a waiver of such party's right to exercise such right or to demand strict compliance with such term, condition,
covenant, or obligation.
12.9 Severability. The invalidity or unenforceability of any provision of this Agreement shall not
affect the other provisions, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
12.10 Amendment. Neither this Agreement nor any provision hereof may be changed,
amended, modified, waived, or discharged, either orally or by any course of dealing, but only by an
instrument in writing signed by the party against whom enforcement of the change, amendment,
modification, waiver, or discharge is sought.
12.11 Counterparts. This Agreement may be executed in several counterparts, by separate
signature pages, and/or by scanned signatures delivered by email, as provided in Section 12.7, each of
which may be deemed an original, and all such counterparts, separate signature pages, and signatures
delivered by email together shall constitute one and the same Agreement.
12.12 Calculation of Days. In the event that any date described in this Agreement for the
performance of an action required hereunder by Commission, Developer, and/or the Title Company falls on
a Saturday, Sunday, or federal legal holiday, such date shall be deemed postponed until the next business
day thereafter.
12.13 Interpretation. This Agreement and any related instruments or documents shall not be
construed more strictly against one party than against the other by virtue of the fact that initial drafts were
made and prepared by counsel for one of the parties, it being recognized that: (A) this Agreement and any
related instruments or documents are the product of extensive negotiations between the parties hereto; and
(B) both parties hereto have contributed substantially and materially to the final preparation of this
Agreement and all related instruments.
12.14 No Recordation. Neither this Agreement nor any memorandum of the terms and
conditions hereof shall be recorded or otherwise placed of public record, unless it is signed by both
Commission and Developer.
12.15 Force Maieure. The term "Force Majeure" shall mean strikes, lockouts, unusual weather,
labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor,
governmental restrictions, governmental regulations, governmental controls, enemy or hostile government
action, civil commotion, fire or other casualty, or a governmental entity failing to grant or rejecting an
approval that is required to construct the Project in substantial compliance with Project Plans. In order to
claim relief from a Force Majeure, a party immediately must provide written notice to the other party that
describes the Force Majeure at issue and the date the Force Majeure first occurred. If a party is unable to
perform an obligation due to Force Majeure, then that party shall be excused from performance for the
period of the Force Majeure event. Any obligation which can be satisfied by the payment of money, and
other sums due herein, shall not be subject to, or excused by, Force Majeure.
12.16 Compliance With Laws. All of Commission's obligations under this Agreement shall
comply with all Applicable Laws.
12.17 Not an Offer. This Agreement or any draft thereof shall not be: (A) considered an offer to
contract; or (B) binding against either party until it is fully executed by both Commission and Developer.
25
12.18 Richt to Relocate General Utility Easement. Developer shall have the right to relocate the
General Utility Easement, (the "Relocation Right"), with Commission's prior written consent, which shall
not be unreasonably withheld, conditioned, or delayed, so long as:
(i)
Prior to the initial installation of the improvements in the General Utility Easement:
(A) Developer pays any additional costs for labor and material associated with the new
location; and (B) such relocation does not substantially interfere with Commission's free
use of said easement; or
After the initial installation of the improvements in the General Utility Easement:
(A) Developer pays all costs for labor and material associated with such relocation; and
(B) Developer insures that the relocation does not materially interrupt the continuous flow
of utilities.
The provisions of this Section shall: (A) survive the expiration or termination of this Agreement or the
Closing; and (B) be memorialized in the Deed:
12.19 Special Obligations Survivina Closinti.
(a) Buildina Plans. When Developer or a third party purchaser is preparing to construct an
initial building or structure and related Improvements on a pad -ready site (the "Building
Improvements"), Developer or such third party purchaser shall submit to the Executive
Director of Commission, two (2) complete sets of its preliminary plans and drawings for the
Building Improvements, which shall include schematic exterior elevations of the Building
Improvements (the "Building Plans"). The Building Plans shall: (A) incorporate the
Project Requirements; and (B) be subject to the approval of Commission, which approval
shall not be withheld, conditioned, delayed, or denied unreasonably; provided that, in the
case of Building Improvements for national or regional businesses that have prototype
building designs or specific building standards, Commission shall accept and approve such
designs and standards, so long as Developer or a third party purchaser shall have: (A)
obtained all other necessary governmental and private approvals and permits required for
the construction and completion of the Building Improvements in accordance with the
Building Plans; and (B) provided reasonably sufficient proof thereof to Commission. The
Building Plans shall be deemed to be Project Plans, and the terms and conditions of
Subsections 4.2fal. fbl. [dl. and lel shall apply thereto. The provisions of this Subsection
shall: (A) survive the expiration or termination of this Agreement or the Closing; and (B) at
the election of Developer, be memorialized in the Deed or a separate recorded covenant.
(b) Street Imorovements. If it is contemplated that, as of the Closing, the construction of the
Street Improvements will not have been completed, then Commission or the City, at its or
their expense, shall complete the construction of the Street Improvements in accordance
with: (A) the design and plans established pursuant to Section 6.3; and (B) a construction
schedule jointly established by Developer and Commission, each acting in good faith and
in a commercially reasonable manner. If: (A) any of the Developer Closing Conditions
related to the Street Improvements have not been satisfied on or before the corresponding
date set forth on Exhibit NI; and (B) Developer has elected to close the transaction
contemplated by this Agreement and proceed under the applicable terms and conditions of
this Subsection; then such unsatisfied conditions shall become the affirmative obligations
of Commission to be satisfied and performed in accordance with Exhibit R and a schedule
jointly established by Developer and Commission, each acting in good faith and in a
commercially reasonable manner. The provisions of this Subsection shall: (A) survive the
26
expiration or termination of this Agreement or the Closing; and (B) at the election of
Developer, be memorialized in the Deed or a separate recorded covenant.
(c) Environmental Remediation. If any Environmental Remediation is required and (A) as of
the Closing, the Environmental Remediation has not been completed in accordance with
the terms and conditions of the Environmental Remediation Plan and the terms and
conditions of Exhibit Q, and (B) Developer has elected to close the transaction
contemplated by this Agreement and proceed under the applicable terms and conditions of
this Subsection, then such completion of the Environmental Remediation shall become the
affirmative obligations of Commission to be satisfied and performed in accordance with the
Environmental Remediation Plan and the terms and conditions of Exhibit Q. The
provisions of this Subsection shall: (i) survive the expiration or termination of this
Agreement or the Closing; and (ii) at the election of Developer, be memorialized in the
Deed or a separate recorded covenant.
(d) INDOT Commitments. Commission shall act in good faith and in a commercially
reasonable manner to enforce the commitments and agreements of INDOT to complete in
2017 the INDOT Improvements; including, without limitation, enforcing such INDOT
commitments and agreements by alleging and making breach of contract claims and/or
filing and taking legal enforcement actions.
12.20 Commission Obligation to Assist. Commission shall act in good faith and in a commercially
reasonable manner to satisfy the Developer Closing Conditions, including, without limitation, undertaking
such actions and making such filings as Developer reasonably may request.
[SIGNATURES ON FOLLOWING PAGE]
27
IN WITNESS WHEREOF, the parties have executed this Development Agreement as of the date
first written above.
COMMISSION:
JEFFERSONVILLE REDEVELOPMENT COMMISSION,
an entity established pursuant to IC 36-7-14
By: f.. /
Name:
Title: t ._ :g
1
By: ( tt-
Name: 1,dn:4-Ite0 C 010
Title: Secretary
DEVELOPER:
HOGAN PROPERTY DEVELOPMENT CO.
By: 1
Name: �(`r\N. 6-({PJ114
Title: Ia ViT(Ce
28
LIST OF EXHIBITS TO DEVELOPMENT AGREEMENT:
EXHIBIT A-1
Legal Description and Depiction of the Property
(Recital A)
EXHIBIT A-2
Legal Description and Depiction
of the General Utility Easement
(Subsection 9.1(a)(i))
EXHIBIT B
List of the Property Documents
(Subsection 1.2(b))
EXHIBIT C
Organizational Chart of Developer
(Subsection 3.2(f))
EXHIBIT D
Project Site
(Subsection 4.1(i))
EXHIBIT E
Project Standards for Design
(Subsection 4.2(a))
EXHIBIT F
Copies of Adopted Resolutions
(Subsection 3.1(d))
29
EXHIBIT G
Lender Protections
(Subsection 5.2(c))
EXHIBIT H
Depiction and Description of INDOT Improvements
(Subsection 6.3(g))
EXHIBIT I
Depiction of Access Parcel and Access Road
(Subsection 9.1(a)(x))
EXHIBIT J
Depiction and Description of Street Improvements
(Subsection 6.3(h))
EXHIBIT K
flntentionally Omitted!
EXHIBIT L
Depiction and Description of Utility Improvements
(Subsection 6.3(1))
EXHIBIT M
!Intentionally Omittedl
EXHIBIT N
Dates for Satisfaction of
Developer Closing Conditions
(Section 6.4)
EXHIBIT 0
Obligations of Commission that Survive Closing
(Identified by Section or Subsection)
(Subsection 9.1(a)(viii))
30
EXHIBIT P
Obligations of Developer that Survive Closing
(Identified by Section or Subsection]
(Subsection 9.1(b)(iv))
EXHIBIT Q
Phase II Assessment Parameters,
Disclosed Environmental Matters,
Environmental Remediation Plan Standards, and
Affirmative Obligations of Commission
With Respect to Environmental Remediation
(Closing Paragraph of Section 3.1 and
Subsections 6.3(o), (p), and (r) and 12.19(c))
EXHIBIT R
Affirmative Obligations of Commission
With Respect to Street Improvements
(Subsection 12.19(b))
31
EXHIBIT A-1
Legal Description and Depiction of the Property
(Recital A)
[See attached legal description and depiction of the Property]
JaConsultcobi, ToombsEngineers& &LcLanz,lndSurvet�
Inc.
ill
ing ors
EXHIBIT A-1
LEGAL DESCRIPTION
Part of Blocks 108 and 109, and part of the vacated right-of-way of Broadway and Illinois Avenue in
the City of Jeffersonville, Clark County, Indiana being further described as follows:
Commencing at the southeast corner of Block 108; thence along the south line of said Block, North
85°38'35" West, 135.54 feet to the southwest corner of a tract of land conveyed to R. Wayne
Estopinal by Instrument 201000472, the TRUE POINT OF BEGINNING;
Thence continuing North 85°38'35" West, 105.19 feet to the southwest corner of Block 108; thence
North 85°41'06" West, 100.00 feet to the southeast corner of Block 109; thence along the south line
of Block 109, North 85°43'37" West, 297.01 feet to the right-of-way of Interstate 65; thence along
said right-of-way the following five (5) courses:
(1) North 03°07'45" East, 129.74 feet; thence
(2) 272.87 feet along the arc of a curve to the right, having a radius of 251.00 feet and a chord
which bears North 48°30'00" East, 259.63 feet; thence
(3) North 83°30'03" East, 50.99 feet; thence
(4) South 85°11'21" East, 275.00 feet; thence
(5) North 82°49'58" East, 138.05 feet to the east line of Block 108;
thence along said line South 04°27'35" West, 175.28 feet to the northeast corner of said Estopinal
tract; thence along the north line of said tract North 85°28'28" West, 136.10 feet to the northwest
corner thereof; thence along the west line of said tract, South 04°16'31" West, 175.64 feet to the
True Point of Beginning. Containing 3.977 acres.
ALSO, all of Block 83, part of Blocks 89 and 90, part of Washington Square, and part of the vacated
right-of-way of Broadway, Eighth Street, and miscellaneous alleys in said Blocks in the City of
Jeffersonville, Clark County, Indiana being further described as follows:
Commencing at the northeast corner of Block 90; thence along the east line of said Block, South
04°23'21" West, 50.00 feet to the TRUE POINT OF BEGINNING;
Thence continuing South 04°23'21" West, 763.64 feet to the southeast corner of Block 83; thence
along the south line of said Block, North 85°33'25" West, 292.29 feet to the right-of-way of
Interstate 65; thence along said right-of-way the following six (6) courses:
(1) North 04°30'41" East, 270.23 feet; thence
(2) North 85°34'39" West, 50.00 feet; thence
(3) North 11°58'20" West, 90.01 feet; thence
(4) North 85°33'25" West, 94.46 feet; thence
(5) North 04°30'41" East, 168.23 feet; thence
Corporate Kentucky Central Indiana Southern Indiana
1829 E. Spring Street, Suite 201 1400 South 1' Street 1060 N. Capital Ave, Ste E360 124 Bell Ave
New Albany, IN 47150 Louisville, KY 40208 Indianapolis, IN 46204 Clarksville, IN 47129
812-945-9585 502-583-5994 317-829-3474 812-288-6646
812-945-6656 Fax 502-583-7321 Fax 317-829-3473 Fax 812-945-9585 Fax
1s ww.itlene.cam
Page 2 of
(6) 179.45 feet along the arc of a curve to the left, having a radius of 810.08 feet and a chord
which bears North 37°33'44" West, 179.08 feet to the west line of Block 89;
thence along said line, North 04°30'41" East, 104.91 feet; thence South 85°38'35" East, 580.66 feet
to the True Point of Beginning. Containing 7.278 acres.
This description is based on a survey prepared by Jacobi, Toombs and Lanz, Inc., Job # 13167,
dated March 18, 2014, and recorded as Instrument 201607019. No new field work or research has
been conducted or provided since the date noted on said survey.
a
wl3..« ®r P ..
�• .-..te r. i. t.tt,t 1�
•
LAVA'
55\PER our.
CT.
15%V.
Yfi
3,977 AC°,f' ` �'$
I,I 211 IV..
1.
w .-
Liala
• I.N.V.-11, 1.14
4r.Arn 'matin
ADM 41
•
1W IY.-....•
•µms. o -d
Nom+ w -+r
h.. P.M ow. Paw
}
4 r1.q�►
's.
-11_11..- «.....,...,.,,Fr.�,...,........
1r 111e :: ;1$71: r.71$7$14"."'
3 of 3
JP
itiout
0.41
. W,' —
��r.•:rr- I
w�.
1111. , .ww At—
f.•4tier0
p. r II S6 N1 1 r 2
•��
•
?•. ti j.. ••••••••••••••6r
y
" n,.. 7., *N.1. ✓...w.r. 4
PI 1N01}w4 IN M. n... 1 am.—. +rr+•SI
'-
1
EXHIBIT A-1
4111111..
1• Y ewNi
�•w�FNK ti.n.���
OWNER OF RECORD:
Ctrr 4 JE'FFR5ONKLE AND AN
Ctrl OF JeFFERSCANILLE
NEOEVFLCPMEHT P.DI1:'d15�9M
f121M11.r •�T'4+
A,11
Jscuhl.igamb.ss L o. Ina.
1 4.4 00.-.mft. d'*.y-tv.nw,
raawr.+rw muwnH
EXHIBIT A-2
Legal Description and Depiction
of the General Utility Easement
(Subsection 9.1(a)(i))
[See attached legal description and depiction of the General Utility Easement]
JaCcobionsulting, ToomEngineersbs& &LLand Lanz,Surveyors Inc.
EXHIBIT "A-2"
DESCRIPTION OF A
SANITARY SEWER, DRAINAGE
AND UTILITY EASEMENTS
A 40 -foot Sanitary Sewer, Drainage and Utility Easement located in the vacated Broadway right-of-
way situated between Block 108 and Block 109 in the City of Jeffersonville, being a part of a tract of
land conveyed to Jeffersonville Department of Redevelopment by Instrument 200105340 and that
part of said vacated Broadway declared by the City of Jeffersonville through Ordinance 01 -OR -18
by Instrument 200122017, being further described as follows:
Beginning at the southwest corner of said Block 108; thence North 85°41'06" West, 40.00 feet;
thence North 04°18'19" East, 324.12 feet to the south line of the tracts of land conveyed to the
State of Indiana by Instrument 201308143 and Instrument 201224030; thence along said south line,
South 85°11'21" East, 40.00 to the west line of said Block 108; thence South 04°18'19" West, 323.78
feet to the Beginning. Containing 12,958 square feet.
ALSO, a 40 -foot Sanitary Sewer, Drainage and Utility Easement located in Blocks 83 and 90 and in
part of the vacated Eighth Street right-of-way and vacated Broadway right-of-way in the City of
Jeffersonville, also being a part of the tracts of land conveyed to the City of Jeffersonville and/or the
Jeffersonville Department of Redevelopment by Instruments 200907188, 201019015, 201021529,
201021530, 201103010, 201103716, 201110738, 201112496, 201112727, 201326483, and 201305901,
being further described as follows:
Commencing at the northeast corner of Block 90; thence along the east line of said Block, South
04°23'21" West, 50.00 feet to the TRUE POINT OF BEGINNING;
Thence continuing along said east line, South 04°23'21" West, 426.15 feet; thence North 85°36'00"
West, 40.00 feet; thence North 04°23'21" East, 426.12 feet to the southerly line of the above
described tract (Instrument 201326483); thence along said southerly line, South 85°38'35" East,
40.00 feet to the True Point of Beginning. Containing 17,045 square feet.
ALSO, a Sanitary Sewer, Drainage and Utility Easement being the north 40 -feet of Block 82 in the
City of Jeffersonville, also being a part of the tracts of land conveyed to the City of Jeffersonville by
Instruments 201200001 and 201217342, being further described as follows:
Corporate Kentucky Central Indiana Southern Indiana
1829 E. Spring Street, Suite 201 1400 South la Street 1060 N. Capital Ave, Ste E360 124 Bell Ave
New Albany, IN 47150 Louisville, KY 40208 Indianapolis, IN 46204 Clarksville, IN 47129
812-945-9585 502-583-5994 317-829-3474 812-288-6646
812-945-6656 Fax 502-583-7321 Fax 317-829-3473 Fax 812-945-9585 Fax
www.iI(efl2.COrn
Page 2 of 2
Beginning at the at the northwest corner of said Block 82; thence along the north line of said Block,
South 85°36'00" East, 241.57 feet to the northeast corner of said Block; thence along the east line of
said block, South 04°26'33" West, 40.00 feet; thence North 85°36'00" West, 241.53 feet to the west
line of said Block; thence along said line, North 04°23'21" East, 40.00 feet to the Beginning.
Excepting therefrom that portion of the existing 20 -foot alley in said Block, containing 800 square
feet. Said Easement contains 8,862 square feet after said exception.
ALSO, a Sanitary Sewer, Drainage and Utility Easement being the north 40 -feet of Block 81 in the
City of Jeffersonville, also being a part of the tracts of land conveyed to City of Jeffersonville by
Instruments 201214575 and 201219360 being further described as follows:
Beginning at the northwest corner of said Block 81; thence along the north line of said Block, South
85°'36'45" East, 252.21 feet to the northeast corner of said Block; thence along the east line of said
Block, South 04°26'50" West, 40.00 feet; thence North 85°36'45" West, 252.21 feet to the west line
of said Block; thence along said line, North 04°26'33" East, 40.00 feet to the Beginning. Excepting
therefrom that portion of the existing 20 -foot alley in said Block, containing 800 square feet. Said
Easement contains 9,288 square feet after said exception.
ALSO, a Variable Width Sanitary Sewer, Drainage and Utility Easement located in Block 80 in the
City of Jeffersonville, also being a part of the tracts of land conveyed to Jeffersonville Department
of Redevelopment by Instrument 201324928, being further described as follows:
Beginning at the northwest corner of said Block; thence along the north line of said Block, South
85°36'45" East, 14.38 feet to the northeast corner of said Block; thence along the northeasterly line
of said Block, South 31°17'08" East, 422.79 feet to a corner of said Block; thence along the east line
of said Block South 04°25'12" West, 33.36 feet to the southeast corner of said Block; thence along
the south line of said Block, North 85°43'46" West, 55.89 feet; thence North 04°25'12" East, 77.00
feet; thence North 31°17'08" West, 258.27 feet; thence North 63°17'06" West, 58.95 feet to the
west line of said Block; thence along said line, North 04°26'50" East, 67.73 feet to the Beginning.
Containing 12,390 square feet.
ALSO, Temporary Construction Easements as shown on Exhibit "B", which shall revert back to the
owner upon completion of construction.
60' 120'
SCALE: 1"=60'
I LINE
I L1
I L2
1 L3
1 L4
LINE TABLE
BEARING DISTANCE
N 85'41'06" W 40.00'
N 04'18'19' E 324.12'
S 85'11'21" E 40.00'
S 04'18'19" W 323,78'
TENTH STREET R/W VARIES
/OrigIna! R/W
NOT TOS SCAR
SELL—OFF
STATE OF [NOIANA
INST. 201306143
50' TEMP.
CONST. ESMT.
Vacated portion of
Broadway per
Ordinance No. 01—OR-18
Per Inst. 200122017
BLOCK 109
CITY OF JEFFERSONVILLE
INST. 200200193
Vacated portion of
Broadway per
D.D. 30, Inst. 16337 Jt
FOUND / �N
V5 8" STEEL PIN /
: 1103591.08
E: 304829.83
CL Railroad Tracks
S 85'11'21" E 275.00'
SELL—OFF
STATE OF INDIANA
INST. 201224030
❑1
8
SELL—OFF
STATE OF INDIANA
INST. 201224029
1' 5706' 13"
3
FOUND
DRILLHOLE
N: 1 1 039 29 .67
E: 305198.00
Deed Line of
(tYP') o,
to
CITY OF JEFFERSONVILLE
REDEVELOPMENT COMMISSION
INST. 201015655
BLOCK 108
M
N
0
0
to
50' TEMP.
CONST.
ESMT.
Southwest
Corner of
Block 108
N 85'38'35" W
135.00'
N
n R. WAYNE ESTOPINAL
INST. 201000472
L1 r 105.73' - . ,� '135.00'
85'41'0§" WI N 85'38'35" W 240.73'
100.00 1� Sewer (240.00'—Calc. Deed)
MINIM I II II 11111111111111111111111111111:1111111
See Sheet 2
Th
S 04'27'35" W 355.52'
N
N
SANITARY SEWER, - DRAINAGE,
& UTILITY EASEMENTS= 60,543 S.F. (TOTAL)
TEMPORARY CONSTRUCTION
EASEMENTS= 106,230 S.F. (TOTAL)
Notes:
1. This drawing is not Intended to be represented as a
retracement or original boundary survey, a Route Survey,
or a Surveyor Location Report.
2. Neither abstract of title nor title commitment was
provided to Jacobi, Toombs, and Lanz, Inc. for the
preparation of this easement plat. A title commitment
may reveal easements, encumbrances, restrictions or
rights of others not shown hereon, that may affect the
quality of title or development of this tract.
3. North and all bearings shown hereon are based on
NAD 1983, Indiana East Zone, State Plane Coordinates
derived from RTK GPS observations dated April 16, 2013
from control point "Visit" as published in Book 10 of
the Survey Grant Corner References of the Clark County
Surveyor's Office,
DATE 02/19/2014 DRAWN: E.T.R.
RE1 ai/0/ 4r 08 / 014r 01/19/2015
I CHECKED: RAO.
NINTH STREET 60' R/W
1 Jacobi, Toombs & Lanz, Inc.
Consulting Engineers & Land Surveyors
1829 East Spring Street, Suite 201 - New Albany, Indiana 47150
812-945-9585 - WWW.JTLENG.COM
EXHIBIT "B"
SANITARY SEWER, DRAINAGE & UTILITY EASEMENT
LOCATED IN BLOCKS 80-83, 90, 108 AND 109
AND A PART OF VACATED EIGHTH STREET,
CITY OF JEFFERSONVILLE, CLARK COUNTY, INDIANA.
Prepared for:
CITY OF JEFFERSONVILLE, INDIANA
Owner of Record:
CITY OF JEFFERSONVILLE AND/OR
CITY OF JEFFERSONVILLE REDEVELOPMENT
AUTHORITY
APPROVED: S.LM. I JOB No.: 12138 I SHEET: 1 OF 4
Railroad Tracks
NINTH STREET 60' R/W
1111111 1111IIIllll1IlIIIIIIIIIIIIIIIIIIIIIIIJIIIIIII:(llll
Sae Sheet 1
N 85'41'06" WI
L_
PROPOSED RTW
240.31'
S 85'38'35" EF. -
240.55'
—240.55'
LOT 5
N 85'38'35" W
290.37'
LOT 4
r . _
—40' TEMP_
VacatedBroadway per CONST. ESMT. LOT 3
Ordinance No. 96—OR—
Per M.D. 28 Inst. 17858 Original Lot—
Line (typ.) \ BLOCK 90
60'
LOT 1
120'
IM N
SCALE: 1 "=60'
OWNER OF RECORD:
CITY OF JEFFERSONVILLE AND/OR
CITY OF JEFFERSONVILLE
REDEVELOPMENT COMMISSION
❑1 INST. 200105340
I=1 INST. 201326483
❑3 INST. 201021530
® INST. 201112496
❑5 INST. 201021529
• INST. 201112727
• INST. 201103716
❑8 INST. 201103010
• INST. 201305901
• INST. 201019015
El INST. 201315675
• INST. 200907188
INST. 201110738
UNE
L5
I L6
I 17
LINE TABLE
BEARING
N 85'36'00" W
N 04'23'21" E
S 85'38'35- E
LOT 2
50' TEMP.
CONST. ESMT.
Deed line
(typ•)
Vocated portion of—
Eighth Street per
M.D. 2, Inst. 443
BLOCK
(S 34'55'20 E -Deed)
120.00'
LOT 6
0
a d
r<7.1L
LOT 7
rel
LOT 8
LOT 9
0 D
LOT 10
LOT 11
LOT 12
LOT 13
'DT 6
® L L5
L -
LOT 7
37
Northeast Corner
of Block 90
FOUND EE
t1+141'1 0 5b5.46N
E: 305164.79
r
INDIANA AVENUE 60' R/W
Sewer
EIGHTH STREET
60' R/W
See Sheet 3
LOT 8
BLOCK
82
FOUND
1" IRON PIPE
N: 1103025.97
E: 305127.99
1 Jacobi, Toombs & Lanz, Inc.
Consulting Engineers & Land Surveyors
1829 East Spring Street, Suite 201 - New Albany, Indiana 47150
812-945-9585 - WWW W JTLENG. COM
EXHIBIT "B"
SANITARY SEWER, DRAINAGE & UTILITY EASEMENT
LOCATED IN BLOCKS 80-83, 90, 108 AND 109
AND A PART OF VACATED EIGHTH STREET,
CITY OF JEFFERSONVILLE, CLARK COUNTY, INDIANA.
DISTANCE Prepared for.
40,00' CITY OF JEFFERSONVILLE. INDIANA
40,'
426.12' Owner of Record:
00 CITY OF JEFFERSONVILLE AND/OR
CITY OF JEFFERSONVILLE REDEVELOPMENT
WHIM 02120/20141 0610S/1b314e 08/211/14c ay
i 014 7AUTHORITY
DATE: 02/19/2014 DRAWN: E.T.R. CHECKED: R.A.G. I APPROVED: S.LM. W JOB No.: 12138 I SHEET: 2 OF 4
S: proletta\12138-JepreraoaWlle CSO Inle,eepiarNDeef1JA reMlAgs\Eaml P1014\12138 E,rnl 8-2 Re.070'I-1
6MP palooll C-8 luz3 QI:I2I'0)01,} Joidn) 1 1 [YaS 010uos,i111N'^9C1ZAcioyos;\,
♦ d0 f )133H5 1 MCI .oN B01' I 'NTS :03A011dd'I I 'OYU 10)103H0 1
.11R1oH1nV
1N3Wd013A303 1 3111ANOSil3333f AO A110
10/4NV 3111A NOS2I3333fO A110
;ploaa� ;a Jatamo
VNVIONI '3111ANOSd3333fO A110
palodaid
•VNVIONI 'A1Nl00 )16Y13 '3111AN0S63AI31' 40 A110
1332LLS HLH013 031VOVA 30 121Vd V ONV
601 ONV 901 '06 79-09 S)10018 NI 031V301
1N31`13SV3 A111LLl' 39VNIV210 '213%3S A21V1INVS
„B„ .LI9IHX3
NIOO.ONH'LLC'MMM - 5856 -C46 -Z18
OSIL4 eueipel •AO89IV ' - [OZal!nS '1aa-1S BoudS'ma 6Z81
voiCad-1ns puv7 21 s iaau,Su,7 Sumnsuo,3
•auI `zufl a8 squiooy'igoasp
,09=„1. :31VOS
0 IN 12 12
ZZZZZZ
0 0 0 0 0 0 0
N)
0 --•I3
CO 0 01 CO 4. V
N 01 La V 0 N N
,OZ l ,09 ,0
L0000ZLOZ
r- r- r- r- r- r - C7
N1? WiN-O Z
0
0n
0
o
r -z
0 A
1*1m J3
y -i
v
Eti7Ao
ZO
Z O
Z Z V) to Z Z In V1 m
000 m 0070 m
a;ln-IrtuipC it (1
N W NW N W N LIZ
0) 0) 0) 0) •1,1 0) 01 0 6) 171
4i N -p:,jpp CI' .6
WOIO J0 -I
m f irn* f m
PT1
pp 0
O N 0! 9- D- g
•01j 01s) 0111001
O o CwRy.m
4/0Z/013/00 KIOZ/Oz/ZO a0$Y132i
'8'13 :wow J $IOi/6I/ZO 3LY6
INDIANA AVENUE 60' R/W
See Sheet 2
111 '' E 1117'68'-amdj 1
�68't I .L11 { 1 co Iz
j IJ j v
P
m�
0 DO nF
- a Qo w
N m
vn ®-1� O a•� N3
..
WO) J I Z� I
O) 1 C X
•
pto
CD
0 ALLEY 20' R/W 111.
—�
54'± I I
N Imo__ w
:io rr
per; I i
PO
z- 00 . T I
p R
j
J L3 J 1
OHIO AVENUE 60' R/W
A
0
O -
led)
89't
PO r 11E
o ® o
1 0
oZ
N •
a W
ALLEY 20' R/W
co 55'±
mia
.5r13 211-
•••p a
1
- (95' -Deed)
MICHIGAN AVENUE 60' R/W
Sae Sheet 4
EIGHTH STREET 60' R/W
BLOCK 81
—Northwest Corner
of Block 80
M
d W
. b LOT
▪ n
• 0
(1C
1.16
MICHIGAN AVENUE 60' R/W
z
LOT 7
r LOT 6 ■■■■ �.O
-\ -cA
rr \ w
A0' TEMP. �r�vr \ �• k
CONST. ESMT. \■� �A
LOT 5 I''■ ■ �. S
61 iss
LOT 4 d31)• �_
JEFFERSONVILLE DEPARTMENT .i. 0 ■ *-
OF REDEVELOPMENT ■
INST. 201324928 'a\}a
�■ ■
5' TEMP. `■
LOT 3 CONST. ESMT. I \
LOT 10 ■\
o'
60'
120'
Ifllllllllllllll�
lll. I. IIS r..■rl
SCALE: 1"=60'
VARIABLE WIDTH SANITARY SEWER,
DRAINAGE, & UTILITY EASEMENT
BLOCK 80
LOT 2
40' TEMP.
CONST. ESMT,'
I
LOT 1
Vacated 20' Alley per
Ordinance No. 83–OR-9
Per D.O. 5, Inst. 11871
(280'-Pe00
SEVENTH STREET 60' R/W
I LINE
I L16
I L17
I L18
LINE TABLE
BEARING
S 85'36'45" E
S 0425'12" W
N 63'17'06" W
DISTANCE
14.38'
33.36'
58.95'
'1O
LOT 11 \1 '■
uJ
•
iv1,p
-Ic4 1Q
LOT 12ojn
z1
I 55.89'
N 85'43'46"
W
Jacobi, Toombs & Lanz, Inc.
Consulting Engineers & Land Surveyors
1829 East Spring Street, Suite 201 - New Albany, Indiana 47150
812-945-9585 - W W W.JTLENG.COM
EXHIBIT "B"
SANITARY SEWER, DRAINAGE & UTILITY EASEMENT
LOCATED IN BLOCKS 80-83, 90, 108 AND 109
AND A PART OF VACATED EIGHTH STREET,
CITY OF JEFFERSONVILLE, CLARK COUNTY. INDIANA.
Prepared for:
CITY OF JEFFERSONVILLE, INDIANA
Owner of Record
CITY OF JEFFERSONVILLE AND/OR
CITY OF JEFFERSONVILLE REDEVELOPMENT
AUTHORITY
DATE 02/19/2014 LLDRAWN: ET.R. CHECKED: R.A.G. 1 APPROVED: S.LN. fj JOB No.: 12138 SEEM 4 OF 4
WAWA 02/20/20141 Od/0872014 . .1':nkct2\t2tJ8-Jerrer*cw1 CSO Interceptor 0 Vataglrtgat\E9111 Pl4bA121 0 r.emt e
EXHIBIT B
List of the Property Documents
(Subsection 1.2(b))
All documents pertaining to the Property, including, without limitation, all surveys, title documents,
environmental reports, and soil reports. Commission shall deliver to Developer copies of all such
documents readily available to Commission, including all such documents in electronic form. All
documents are available for review at the Department of Redevelopment for the City.
EXHIBIT C
Organizational Chart of Developer
(Subsection 3.2(f))
Sole Member:
W. Glenn Hogan
i
Sole Member:
Hogan Real Estate Services, Inc.,
a Kentucky corporation
1
Hogan Property Development Co.,
a Kentucky corporation
EXHIBIT D
Project Site
(Subsection 4.1(i))
[See attached]
EXHIBIT D
.
+wni— .' r
9
wY 1
L—.,•
. n.
, I it y.e1
1 ;rw
-.H---` Ir/JTRALT ONE
, „,.., Y. i., j �I
z, 3.9771{ACRES �. 4
17,//it r /raj 11 ' ' -
I I : ! i , "baa .,,
9LO[2'110
SR FA
:;
• 1iI•'ii Ik11N 1,4
1.1,4,,•..VM
"Phase I - Pad Preparation" shall
refer to the site work done to
create pad -ready sites on
either Tract One or no less than 50%
of Tract Two, as determined in
Developer's sole discretion
�f r
f ?1�___-19•-�..-1.�-�., .. Aw,6 14"
1.01 I
BLOCK 89
VA .1 .O1 i1
I
,pr!
YRV-
x
TRACThTWO .t
IN I
7.278'ACRES
LOCK 91
B'.CCK 82
9 -
,.�.. 1) '^
EXHIBIT E
Project Standards for Design
(Subsection 4.2(a))
Introduction
Hogan Property Development Co., as the developer for the Property, plans to develop the subject
property as a mixed-use commercial development with the possibility of retail, restaurant, office,
hospitality and other commercial uses. Developer plans on combining the approximately 10+ acres or 19
parcels into one or more parcels based on size, location, use, or disposition. Developer may seek
variances for site layout, setbacks, and building design. The development may include additional adjacent
parcels. The Developer intends to submit plans to the Jeffersonville Redevelopment Commission as
contemplated in the Development Agreement for review and approval.
Permitted Uses
The development may include any use that is allowed under the zoning ordinance, which could include
commercial, retail, restaurant, hotel/motel, office and other uses. The proposed uses will comply with local
zoning ordinances.
Development Standards
The development may include multiple buildings, which are one-story to several stories based on the type
of use. The massing, scale, orientation and height will be determined by the use and location in the
development and the buildings will be sited to provide maximum visibility and exposure to visitors and
customers. Retail buildings may be one-story, commercial office buildings may be multiple stories, and a
hotel/motel could be several stories based upon the brand and type of service.
Parking
Parking areas will provide a minimum number of spaces per local ordinance but there will be no maximum
number of spaces.
Signage
The Property will include a number of pylon and monument signs to identify the name of the
development, tenants in the development, and entrances into the development that may be located on
10th Street, 9m Street, 7th Street, Spring Street, and Indiana Ave.
Design and Materials
While the Property is located adjacent to Interstate 65, the development as a "gateway" to Jeffersonville
will have some unique facade characteristics and features complementary to downtown Jeffersonville.
The design will be contextual in scale and materials and will invoke a vibrancy and intimacy to attract
visitors and customers alike with interesting architecture, lighting and site elements. Quality facade
materials will be utilized that may include concrete, masonry, stone, metal, wood, exterior finish systems,
glazing, rubber roof membranes, and other materials that enhance the context of the surrounding
neighborhood.
Landscaping
The Developer will provide landscaping throughout the development that enhances the building
architecture and site layout year-round. Landscaping will include trees, shrubs, and flowers in the
improved areas of the Property.
EXHIBIT F
Conies of Adopted Resolutions
(Subsection 3.1(d))
Sec 0.-l4Lc hed Copy d' Resolution Nd. RN 4 R --1
scAiso
[See attached copies of Jeffersonville Redevelopment Commission
Meeting Minutes in regards to the Gateway Development project.]
RESOLUTION NO. 2017-R-
�.
BEFORE THE JEFFERSONVILLE REDEVELOPMENT COMMISSION
STATE OF INDIANA
A RESOLUTION DESIGNATING HOGAN PROPERTY DEVELOPMENT CO. AS
DEVELOPER FOR GATEWAY COMMERCIAL DEVELOPMENT PROJECT AND
APPROVAL AND RATIFICATION OF DEVELOPMENT AGREEMENT
WHEREAS, the City of Jeffersonville Redevelopment Commission (the "Commission"),
was created for the purpose of undertaking economic development and redevelopment projects in
the City of Jeffersonville ("City") pursuant to I.C. 36-7-14 and I.C. 36-7-25; and
WHEREAS, the Commission desires to develop certain property it owns that it is
commonly called the "Gateway Commercial Development" project ("Project") located at 10th
and Spring Streets in the City; and
WHEREAS, the Commission has complied with all statutory requirements for the
offering of said property; and
WHEREAS, the Commission has undertaken and completed a selection process for a
developer of the Project; and
WHEREAS, after consideration of all relevant factors concludes that Hogan Property
Development Co. should be chosen as the developer of the Project; and
WHEREAS, the parties have negotiated the attached Development Agreement ("Exhibit
"A"); and
NOW, THEREFORE, BE IT RESOLVED by the City of Jeffersonville
Redevelopment Commission that Hogan Property Development Co. is hereby designated as the
developer for the Gateway Commercial Development Project; and
IT IS FURTHER RESOLVED by the City of Jeffersonville Redevelopment
Commission that the attached Development Agreement with Hogan Property Development Co.
is hereby approved and ratified.
ADOPTED and APPROVED on this e0 day of ut_Ad
ATTEST:
ecretary
Jeffersonville Redevelopment Commission
2017.
/7/
President
Jeffersonville edevelopment Commission
EDIT A
DEVELOPMENT AGREEMENT
[ A copy of the Development Agreement is omitted from this copy of
the Resolution attached as part of Exhibit F to the Development Agreement ]
Jf:FTFRSONVILLL; RLUINtiL )PMl ENT COMMISSION
SPIiCIAI, MEETING MINU'Iii:S
JANUARY n, 2015
the Jef'fetsonville Redevelopment Cotnurission held x Speei.,l Meeting on January 9, 2015, tial was
called to order Al 12.22 I'M in the Mayor's Confluence Room, 'dented at 500 Quartermaster Coon,
Jeffersonville, Indiana.
1)aard Mem hers present;
Monty Snelling, Mayor Mike Moore and Jack Vissing
Board Members absent:
Jamie Luke, Derek Spence and GCCS Board Representative Jerry White
Staff Members present.
Redevelopment Commission Atmrrtcy Las Markley, Kedavolopmuu l)irrrinr Rob Wniz. &tram
Administrator DeLyun Rutherford and C.'MMS Administrator/Secretary Cindy Seifert
Grruets presents
Mike Ilull, Put Barrow. Richard Gklund and Malt Kousters with The livening News
CALL' 1'A ORDER
Mr. Snelling called Iii: meeting to order al 12:22 PM.
OLD BUSINESS
NEW BUSINESS
106 nntl Spring Properly Lawsuit Settlement Agreement
1 e Merkley presented a settlement offer I'or the 10th and Spring lawsuit. The Teti lenient stipularsN that a
new RFP he issued for the avcrege of the two appraisals (S550,000i ,S15.Ot117) or $1,I97,50i) The
lawsuit will than be dismissed,
Mr. Vissing made a Motion to accept the lawsuit settlement, with Mayor Moore seconding the motion,
passing unanimously on a vote ol'3-0.
Gateway Development REP
Les Markley prest.mted u new RFP with a deadline ol'February II, 2015.
Mr, Vissing made a mrninu in aplrrovu thu Haw Gateway Development RPh, with Mayor Moore
seconding the motion, passing unanimously on a vole of 3-0.
Online Copy From City f eff net „ City Clerk
Furniture for City Ball First Floor Conference Room
peLynn Rutherford presented a request for a conference table and chairs for lite new area recently
vacated by the police department.
Mayer Moore made a minion to approve $2,188.04 to Office Supply Company for a new conference table
and chairs, whit Mr, Vissing seconding the motion, passing unanimously on a vote of3.0,
Former Gray & Wells Property Reirooing
Rob Waii presented a request to request rezoning of the former Cray & Wells property from Midlurgc
Commercial to Downtown Commercial.
Mayor Moore trade n motion to approve the request for rezoning, with Mr. Vissing seconding the motion,
passing unanimously on a vote of 3-0
Mills, Biggs and Haire Invoice
Los Mcrklcy advised that there is an unpaid invoice, with Mills, Riggs and I hire for the reassessment of
Kohls. Mr, Mcrklcy advised that the city its responsible far a portion of the reassessment appraisal.
Mayor Moore made a motion to appmvc the payment or Iha invoice to Mills, Biggs and Moire in the
amount of $4,000, with Mr Vissing sccoutling the motion, passing unanimously on a vote oI'3-0,
EXECUTIVE DIRECTOR REPORT
No Comments
PUBLIC COMMENTS
No Continents
BOARD COMMENTS
No Comments
ADJOURNMENT
Mr. Vissing made a motion to adjourn at 12:30 PM, with Mayor Moine seconding the motion
{t. Monty sue' {tn , t� dent
Submittal lJy= Cimlv&ifori
Online) C';Ofy From orrl CityOI:Jefl.ru $. - City Clerk
JEFFERSONVILLF REDEVELOPMENT COMMISSION
SPECIAL MEETING MINUTES
February II, 2015
The Jeffersonville Redevelopment Commission held a Special Meeting on February 1 I, 2015, that was
called to order at 6:00 PM in the Mayor's Conference Room, located at 500 Quartermaster Court,
Jeffersonville, Indiana.
Board Members present:
Monty Snelling, Mayor Mike Moore and Jack Vissing, Derek Spence, Marty Chalfant
Board Members absent:
Jerry White
Staff IVIetnbcrs present:
Redevelopment Commission Attorney Les Merkley, Redevelopment Director Rob Waiz, Grant
Administrator DeLynn Rutherford
Guests present:
Mike Hutt, Pat Barrow, Richard Eklund and Elisabeth Beilman with The Evening News, Bobby
Campbell, Brian Forrest -Hoagland Properties, Andy Mahn Keystone Development.
CALL TO ORDER
Mr. Snelling called the meeting to order at 6:011 PM.
OLD BUSINESS
NEW BUSINESS
Gateway Development RTP Proposal Openings
The deadline for the submittal of the Proposals was 12 noon today February 11, 2015. There were five
proposals received.
Les Merkley, Commission Attorney opened and read aloud each offer as follows;
1, Keystone Realty Group- $1,197,000.00
2. Hogan- $1,200,000.00
3. CBRE-TBD
4. Hoagland -$1,200,000.00
5, The McCartin Company- $1,200,000.00
Commission Council Les Merkley advised the board they had three options concerning the action they
could lake regarding the proposals at this time. The following were the choices:
I. They can select a proposal now at no less than the offer price sct in the REP.
2. The Conunission can take the proposals under advisement.
Willie Copy From City0f.Jeffmet.. City, Clerk
3 The Commission can reject all proposals and then after 30 days they can negotiate the proposal.
Mr. Vissing made a motion to reject all bids, with Mayor Moore seconding the motion, passing
unanimously on a vote of 5-0.
The Commission also asked that a special meeting be held on Wednesday, March 411', 2015 al
2:00 pm. They will be requesting that all those that submitted a proposal for the Gateway Project
give a short 15 minute presentation. Rob and fielynn will contact each company and advise thein
of the date and time of the meeting.
EXECUTIVE DIRECTOR REPORT
Mr. Waiz asked the Commission to review the bids received from the RFP Big Four Maintenance
Proposals and passed out copies with each company who bid and their offers. They were as follows:
ByrnesProperty Maintenance: $93,000 first year
Hamhead L.i_C: $134,532 first year
Waldrip Construction Group: $225,000 first year
Mr. Chalfant proposed that the commission review the proposals and the check sheet provided and
reviewed by the RcdeveIopment Department and that will give them the opportunity to make a better
informed decision regarding the bids due to the fact that there is such a wide variance on the amounts
proposed.
PUBLIC COMMENTS
No Convents
BOARD COMMENTS
Mr. Vissing advised he wasn't fully pleased with the outcome of the parking study and questions the
validity due to the fact that it wasn't dotte during the peak season and that would probably skew the
outcome.
ADJOURNMENT
Mayor Moore made a motion to adjourn at 6:22 PM, with Mr.. Vissing seconding the motion,
Montyy Sncll���s
dent
're
Submitted $y: Delynn Rutherford
O01itie' Copy FrOfki Cil.yOfwje>Y'f.tift't - City C'oerk
JEFFERSONVILLE REDEVELOPMENT COMMISSION
REGULAR MEETING MINUTES
MAY 27, 2015
The Jeffersonville Redevelopment Commission held a Regular Meeting on May 27, 2015, that was called
to order at 6:02 PM in the Mayor's Conference Room, located at 500 Quartermaster Court, Jeffersonville,
Indiana.
Board Members present;
Monty Snelling, Mayor Mike Moore, Derek Spence, Jack Vissing, Marty Chalfant and GCCS Board
Representative Jerry White
Board Mehnbcrs absent:
None
Staff Members present:
Redevelopment Commission Attorney Les Merkley, Assistant City Controller Heather Metcalf, City
Engineer Andy Crouch, Director of Neighborhood and Business Development Kelly Hoffmann, Grant
Administrator DcLynn Rutherford, Police Chief Kenny Kavanaugh and CMMS Administrator/Secretary
Cindy Seifert
Guests present:
Kelly McVoy with K4 Security, Scott Hines and Kyle Wilson with The Estopinal Group, Andrew
Greenwood and Michaet House with OTH, Brandon Bogen, Deron Kintner and Brian Prince with Flaherty
& Collins, Paul Wheatley, Chris Reid and David Ravensberg with Scannell Properties, Jorge Lanz with
Jacobi, Toombs & Lanz, Mike Hutt, Bobby Campbell, Richard Eklund, Pat Barrow, Kate Miller, Brandy
Brewer, Duard Avery, Doug Carden and Elizabeth Beilman with The Evening News
CALL TO ORDER
Mr, Snelling called the meeting to order at 6;02 PM.
APPROVAL OF AGENDA
Mr. Vissing made a notion to approve the agenda, with the addition of Council Raise Stipulation, with
Mayor Moore seconding the motion, passing on a vote of 4-0-1 with Mr. Chalfant abstaining. (Mr. Chalfant
arrived during discussion)
Online Copy From CityOf,Jeff.net - Cit' Clerk
CONSENT REPORTS
Minutes:
Mr. Spence made a motion to approve the minutes from April 28, 2015, with Mr. Vissing seconding the
motion. passing unanimously on a vote of 5-0.
Mr. Chalfant made a motion to approve the minutes with requested changes, from May 12, 2015, with Mn
Vissing seconding the motion, passing on a vote of 4-0- I with Mayor Moore abstaining.
Glamis:
Ms. Hoffmann advised that within the claims for the Police Station the amounts within the claims are above
the budgeted line item for furniture/equipment.
Mayor Moore made a motion to approve the Redevelopment Claims in the amount of $ 14,332.13, with Mr.
Vissing seconding the motion, passing on a vote of 4-1 witlt Mr. Chalfant voting against.
Mr, Chalfant questioned the use of Keystone TIE funds, Ms. Hoffmann explained that the Utica-Sellersburg
Road/Hwy 62 improvements were to be paid out of Keystone. Mr. Chalfant also questioned the cast of an
appraisal at Market & Wall, which had been requested prior to his joining the board. Mr. Chalfant also
asked about the amount left to pay Wycliffe, Ms, Hoftnann advised that $54,308 remains, Mr. Merkley
advised that money is being withheld, the only money paid out is for their costs,
Mr. Spence made a motion to approve the TIF Claims in the amount of $417,442.03, with Mayor Moore
seconding the motion, passing on a vote of 4-1 with Mr. Chalfant voting against.
RFP PRESENTATIONS
Former American Legion Property (217 Court Avenue)
Flaherty & Collins - Brandon Bogen, Deron Kintner and Brian Prince
Based out of Indianapolis, only work with Public/Private Partnerships "Urban Infill".
Proposes 6,900 sq ft or 186 living units (studio, I & 2 bedrooms), 9,700 sq ft of retail and 257 parking
space garage. The parking garage would be city owned, maintenance and landscaping the responsibility of
the city. The City woulddeliver the building pad, garage, landscape and infrastructure.
OPH- Scott Hines and Kyle Wilson with TEG, Andrew Greenwood and Michael House
Based out of Carmel, Indiana, and working with local The Estopinai Group Architects.
Proposes 220 units, 40,000 sq ft of retail, including existing anchors of Your Community Bank and All
Care Health, a five level 750 space parking garage, OPH anticipates City assistance with garage
construction.
Scannell Properties - Paul Wheatley, Chris Reid and David Ravensherg
Based out of Indianapolis. Proposes 91 large units with 9 ft ceilings (studio, 1, 2 & 3 bedrooms), 11,900 sq
ft areal! and 120 parking space surface lot. There would be no maintenance/operational costs to the City.
Online Copy From CityrOfjeff.net - City Clerk
Review of Financial Information:
Ms. Metcalf and Ms. Hoffmann provided a TIF Projected Cash Flow spreadsheet and an updated II
Balance spreadsheet.
Mr, Vissing made a motion to accept the March 2015 financial information into the record, with Mayor
Moore seconding the motion, passing on a vote of 4-1 with Mr. Chalfant voting against.
OLD BUSINESS
JTL Ongoing Projects Update
Jorge Lanz provided status on In projects:
Veterans Parkwav Phrase 2 - Design continues, working on an updated budget
Rivcrfront - Blocks are being manufactured, clearing of the riverfront has been completed. Mr. Lanz
advised that 168' of the existing shoreline seawall collapsed and must be replaced.
Mayor Moore made a motion to approve Change Order #2 in the amount of $87,144 for the replacement of
168' of shoreline that collapsed as a result of flooding, with Mr. Spence seconding the motion, passing
unanimously on a vote of 5-0.
Gateway - CSO Interceptor Phase 1 - the delay claim has been negotiated to $160,000.
Mr. Spence made a motion to approve Change Order # 1 a deduction in the amount of $1,671,830, with Mr.
Vissing seconding the motion, passing unanimously on a vote of 5-0.
Mayor Moore made a motion to approve a Reimbursement Agreement with the Sewer Board, with Mr.
Vissing seconding the motion, passing unanimously on a vote of 5-0.
Mr. Vissing made a motion to rescind the contract termination and issue a Notice to Proceed for TSi, with
Mr. Spence seconding the motion, passing unanimously on a vote of 5-0.
Allison Lane Sidewalks -survey and design continues
10th and Spring Discussion
Mr. Merkley advised that iceMiller has presented their findings about Keystone and Hoagland. finding no
negative history regarding either developer. Mr. Merkley suggests moving forward with negotiating a
development agreement. Mayor Moore stated that he would be pleased with either project, adding that
Hoagland's is representative of the City's history. Hoagland is requesting 5 year freeze on taxes and 5
year tax abatement. Mr. Chalfant questioned the environmental remedIation. Ms. Rutherford advised that
Phase I is complete, no cost, Phase 2 is in process, no cost, and only a small cost is projected for
remediation. Keystone is requesting city donate the land for detention basin. Mr. Chalfant requested
Mayor Moore abstain due to a potential conflict as his campaign treasurer is vested in Keystone project.
Mr. Merkley stated there is no- conflict.
Mr, Visaing made a motion to move forward with a Development Agreement with Keystone, with Mayor
Moore seconding the motion, passing on a vote of 4-1 with Mr_ Chalfant voting against.
Online: Copy From City f eff net City Cierk
Police Station Additional Requests
Chief Kavanaugh presented a request for enhancements overlooked during the design of the Police Station.
Install PA Speaker System - $12,970
Casework and Pass -Through Drawer/Exhaust Fan in Evidence Drug Room - $10,620
Alarm System for Evidence Storage Room - $1,600
Basic Forensic Workstation - $2,97L02
Wi-Fi - $6,000
Secured Pistol Storage Compartments - $462.54
Rubber Wheel Stops for Parking Lot (50) - $3,925
IS00psi Pressure Steamer - $2,179.50
Mayor Moore made a motion to approve the purchase of the additional items in the amount of $40,728.06,
with Mr. Vissing seconding the motion, passing on a vote of 3-1-1 with Mr. Chalfant voting against (stating
that the costs should havebeen included in the original scope of work) and Mr. Snelling abstaining.
NEW BUSINESS
Big Four Security Contract
Kelly McVoy presented a request for a contract extension from May 1, 2015 to October 31, 2015. Ms.
Hoffmann advised the board that the UEC is not in support of the contract, however has granted $25,000 to
the Redevelopment Commission to use at Big Four Station.
Mayor Moore made a motion to approve the contract extension in the amount of $50,000, with Mr, Spence
seconding the motion, passing unanimously on a vote of 5-0.
10th Street Property Acquisitions
Parcel 1— Administrative Settlement (trees) Parcel 53 — Administrative Settlement (trees)
Parcel 10 — Administrative Settlement (trees)
Parcel 7 — Acquisition Approval
Parcel 8 — Acquisition Approval
Parcel 27 — Acquisition Approval
Parcel 50 — Acquisition Approval
Parcel 61— Acquisition Approval
Parcel 72 — Acquisition Approval
Parcel 15 — Acquisition Approval
Parcel 90 — Acquisition Approval
Parcel 56 — Condemnation Proceedings
Mr. Vissing made a motion to approve Administrative Settlement for Parcels 1, 10 and 53; Acquisitions of
Parcels 7, 8, 27, 50, 61, 72, 75 and 90 and Condemnation Proceedings for Parcel 56, with Mr. Spence
seconding the motion, passing unanimously on a vote of 5-0.
Mr. Crouch advised that the dry cleaner on the corner of 10'" and Main Street will be reduced to 3 parking
spaces, this property is a potential total take which was unplanned,
Mayor Moore made a motion to approve United Consulting Supplemental Agreement 42, to obtain a total
take appraisal in the amount of $7,225, with Mr. Vissing seconding the motion, passing unanimously on a
vote of 5-0.
Mr, Vissing made a motion to approve the 106 Street Claims in the amount of $197,945.34, with Mr. Spence
seconding the motion, passing unanimously on a vote of 5.0.
Online Cop' rom City Jt*f real ., Gib/ Clerk
Big Four Station Chestnut and Pearl Sign Replacement
Ms. Hoffmann advised that the Big Four entrance sign was hit in the second week ofJanuary. The insurance
deductible is $10,000. The cost of replacing the sign, reusing the logo and LEDs, is $5,761.12.
Mayor Moore made a motion to approve the replacement of the sign in the amount of$5,761, 12, with Mr,
Spence seconding the motion, passing unanimously on a vote of 5-0,
Big Four Station Fountain and Bathroom Signs
Ms. Hoffmann presented a request for signage for the fountain "No Climbing, No Swimming, No Wading"
and for the bathrooms "Bathroom Hours 9AM-9PM Closed iri Winter". These were requested after patrons
have been seen in fountain, police cannot make them stay out without signage. The bathrooms are locked
from 9PM to 9AM, this will help with patrons asking for the doors to be unlocked.
Mayor Moore also suggested a railing be ridded to prohibit patrons from entering fountain.
Mayor Moore made a motion to approve $1,220 for signage at the Big Four Station Fountain and
Restrooms, with Mr, Vissing seconding the motion. passing unanimously on a vote of 5-0.
Council Raise Stipulation
Mr. Merkley advised that due to the City Council making a statement regarding raises. the Commission
should adopt the statement.
Mr. Spence made a motion to adopt the City Council Raise Stipulation for 2015, with Mr. Vissing seconding
the motion, passing unanimously on a vote of 5-0,
EXECUTIVE DIRECTOR REPORT
None
PUBLIC COMMENTS
Mike Hutt asked about the status of the lawsuit pertaining to the sewer project at the Gateway, Mr, Merkley
advised that there was no lawsuit, only rumors of one.
BOARD COMMENTS
Monty Snelling stated that while in Indianapolis, he heard positive comments about the City of
Jeffersonville.
ADJOURNMENT
Mr. Vissing made a motion to adjourn at $:29 PM, with Mr. Spence seconding the motion.
R. Monty SnetJ4 g<4residcn
Online Copy From CiiyOfJ eff.n et City 'ierrk
Submitted By; Cindy Seifert
,IEFFI';RS()NVII,i E REDEVELOPMENT (:OMMISSi()N
REGULAR Mh.h:TIN(: MINUTES
MARCll 30, 2016
`heJeflerson ille Redevelopment ('mum issicm held:t Regular fvlceting uu March 30. 2016. that Was called
to order tt1 (:04 PM in the Mayors C'innlererlcc !' II, located at 500 Quartermaster Court, Jcflersonvilc,
Indiana.
Board Members present:
Nina() Snelling, May Mike Mime, Jack Vissilt;s. Caine Jahn and Kyle Williams
Board Members Ilbsent:
t;i('(.'S Board Representative Jerry White
Staff Mem1)CR•s present:
Redevelopment Commission Attorney 1.es Merkle}•, Cii) Controller and Redevelopment'fre»aura• 1 leather
Melon ll; ,A. istintl ('itv Controller Yvotlite Dowd. RecicveInpmcnl Director Rob Wain. Grant Administrator
i)cl.ynn Rutherford, ('it)- Engineer Andy Crouch, Redevelopment Administrative Assistant Janet Mayrose,
Ito iiiing and Zoning 1)irector Nathan Pruitt and ('AMM'; Admi 1i lralor/Seerctm) Cindy Seifert
(iuw.ts present:
Jorge I ,anz with Jacobi.] uunlbs +ti Lanz. Mall I In11 with One Southern indiana, Kr! Ten Kim w•i1It POSCO
AAPC, LI.C. Brian Neihnff with ivlaker 13. Bob Stein with tlllited Consulting, Brian Cohan and Emil)'
Sanjasto with I;nrhatigh, lv!ike tints. I3ubby Campbell, Richard Eklund, Pat Barrow ;Ind Elizabeth Boihnau
% ith Ills l•.vt i in; News
CA I,I. i'(.) ORDER
Mr. Snelling called Zile meeting to taller at 6:04 PM.
APPROVAL. ROVAL. Or: ACEN1)A
Mr Vissims made a'notion to improve the agenda. R4Ith the additions of two I'lrsolutions, with 4r. %vdhallls
seconding the motion, passing- unanimously on a vote 01')-1).
CONSENT REPORTS
Mt, Vi,stiing made a motion lo approve the minutes front February- 24, 2015, with Ms. Jahn seconding the
motion, passing unanimously on a vitt,: ol'5-fl.
('luims:
Mayor Moore made a motion to approve the III: ('faints in the nniraint ol''};286,680.13. with It. Vissinn
seconding the motion, passing unanitllc)uslyou a vole of S -Q.
,til r. Vissiint made a motion to approve the Re(levelclhlncnt CIa nt, its the amount of $46,776,41, with Ms.
Jahn seconding the motion- passing unanimously on a role 01'5-0.
J71,Otigoini' Prniectti ll.ndnle:
Jurgc bane pratvidcd suthr on .I11. projecli:
Veterarts.,1';tr :1 ,Phase,. l l'I. mei wills City I•:nginctr. the following are J I I_'s
rLc!i111n1e11dattion on phasing of l Iolmanv Lune Phase of overall project:
• Section 1 (TIF Funds, construction in 24) l 7, $1.5M)
Widen I Iolmatas Lane (Tont Charlestown Pike It1 Veterans Parkway. widen
Vetemos Parkway li-icul River Valley Middle School to Wilson l.lementnr'y
School. 15 ROW parcels to he purchased.
■ Section 2 ('i'll' Funds. construction in 2018, . 12M)
Widen Hobnails Lane from 10* Street to Charlestown Pike to 3 lanes with bike
lane and siilettillks, realign (.'hariestown Pike. 55 ROW pareels to be purchased_
• Section 3 (federal Funds, construction after 2021) if necessary, $2,5M)
Widen Veterans Pat•krtay to 5 Mies with bike lanes aril sidewalks. 10 ROW
parcels (0 be purchased.
Main Moore made It Intuicln to proceed with the Veteran Parkway Phase 2 in the stages set Earth abort,
%v'itl1 Mr. Vissing seconding (lie million, passing unanimously on a vote of 5-0.
liira!,t_frer111 Construction complete, elo',nt.t tui project. v1et with lDNR, need lo plaint 19
additional trecs.
t.intywny,Deyelstl)ntetyl_ Developer selected. JR(' working on Developer Agreement
( ,tier._sy_ sC:ti(1_.il)t ;lreeptur Phase 1 Project f,'nntplcle
Cintcyaty • Traffic, - No Change. ready lin' bids Ellis spring
11111 iiil 1,anu`iittcwaitl', C1ut for bill bill date April 20'' :00 poi. Ground breaking should be in
Mar 2016.
N. 10'I' Street - Streetscape 1)evelopint:rji l rtlilwliun — J"f1 i. preparing Scope and Cost
I slinrrWs to upgrade & rehabilitate 10'1' Street. between Alltsou 1.ane and 1-265
NEW BUSINESS
PrnJcet 13olls'Cux Abatement lteques(
Mail Hall whit One Southern lentula and K)11 'Etre Kinn with P( lSCO AAIC, LLC presented a request for
IAA abtlictnunt. POSCO) is a wire rod processing center. I'hey will have 60 employees with an average rete
of $30 per hour. Mr. Waiz asked that if the abatement W approved. the City- liallow the Slate of Indiana
schedule rather ihaui the schedule pressed by the 24)15 City Council.
Mayor Moore made a amnion Io Resolution 2016-R-4 A Residiaitnt recormnendingto the Common Council
Application lire Real Properly and Personal Property fax Abatement for POSCO-AAPC. LLC', rollorving
the State of Indiana lax abatement schedule. it ith Mr, VIssing Seconding the (notion. passing unanimously
on a vote
•
Maker 13 — RcvnRin(; Loan Agreement
Mr. presented a letter from the Revolving. Leann Coaiiiiiittee winch recommends a $50.O00l5ycar loan
tea' Maker 13. Brian Neilic,tT viih Maker 13 advised that the funds would he 1.1Sed for Improvements to the
building including resh'cwluti, electric and 1,1:11 lighting. Mr Neihol'I' also advised that Maker 11 has
already been approached by potential 111e111I1c s,
Mayor kluurc made a motion to approve a re ok inir hr;ln in the amount of $50,1}01) to Maker 13. with Mr.
WIIllallttiseconding the motion. r1WiSillC', lllia iinlilllsl\' 1111 a vete of 5-0.
Maker 13 -Lease Amendment
NIr. Waif presented an amended tense. Previous lease agreement wits for half ol'the building, the untended
(ease iy fin' the Bull building. The amended lease, doubles the plty heats from the original,
kftly'or ? Ioorc mule a motion to approve the amended (ease for the full building. with Mr. Williams
seconding the motion, passing unlulimotsty 00 a vote
keystone tone Development Amendment
Les
Merkle) presented the linnl velaiuu the Development Agreement between KeystottelJetl (ialeway
11.0 and the City- of.It. 1'souvil1e Redevelopment Commksion. The Eigrccincnt II. for the purchase price
of x;1.1117,01)0. Mr_ Murkley advised that then is a 90 due diligence period. slier that time is expired,
closing is 10 happen within 310 days.
Mayor Moore Ili lde a motion to approve the development' ctgrctimcnl with Keystone/Jell'Gateway LI..C,
contingent on final Iciial review or the site plan exhibits. t' ilh IVIr, Williams seconding the motion. passing
unanimously on n vote oI' 5-0,
United Consulting - Supplemental Agreement No 1
Phase 11 Asbestos Survey for Pa riets 54 & 65
f)ely on Ruthertirrd rcyuesicd approval of Supplemental Agreement No 1. fur Phase. 11 Asbestos on Parcels
5+1 and 65. (13ig 1)' fires and 1 onndranutt), The agreement increases the contract by $6,400.00
Ms. Jahn made a motion to approve Supplemental Attrcemeilt No I. fi` an Inel'ease or$C.t100.00. with
Mayor Moore seconding 1he (notion, passing unanimously on 0 vole of 5-0 an parcel 65, and d-0-1 on parcel
j } w ids Mr. Vissing, abstaining.
Umbaugh —'(-11; Funding Analysis & Report
Brian Cullen made ti presentation and provided linaneial documents sllotiving the debt capacity for each
'111* area.
RFP for Colston Park Brownstone Development
Les Merkley adl iscd that I3lankenhekcr is preparing a.survcy and an updated legal description of the
property involved in the ERP for Colston Park. The avcrage'ol' the two appraisals of the property is
$ 175.000. The proposals ►rill be opened June i, 2016 al 6'O0 pmt. Page 7 of the RIP details the project
needs. Mr. Snelling questioned i f Ilse; R1,1' designates access to the cemetery and the playground/basketball
court. Mr. Merkley advised that was addressed and there is still access through the alley and Maple Street.
Mr. Vis,ilrj2, matte a motion to approve the issuance or the 141:I" 6 i' (Tilston l'an'k, with Mayor Maori:
seconding the minion, passing unanimously on a vole of s-0.
10th Street Property Acquisitions
Parcel 2(i - Condemnation Request
(owner of record, l lvtvard, passed away years ago. the estate never settled and the heirs have passed
away as well. This property is 0 5'strip of lions.
Parcel 77 - t'ondCunration Bequest
Whitt: Castle. pruvittusly had un ndmntisn'ative settlement, since then property owners have been
unresponsive.
Parcel 88 -Condemnation Itequest
Chase 13amk, property owners have been unresponsive.
Mr. Vi„imu made a motion to approve Condeuutation 6'r parcels 26, 77 and gg, with Mr. Williams
seconding the tnotiutt. passing unanimously 00 a vote 01'5-0.
IIs"' Street Widening Project Re.' Iution
1.cs Merklcy presented a Resolution approving, the payment of Binds into the clerk ler 10"' Street
condemnation properties. Mr. Merkley advised that 90% of the parcel requisition is complete. The
t� oluticm includes t1 parcels. The resolution provides the appraised value of tlx: parcels. said values will
be paid into the clerk to (told for inial.
Mayor Moore made 0 motion to approve 2016-I{-5_ Resahniott approving rhe payment of funds nun the
clerk for 10'h Street eondenm liar properties. with Mr. Williams seconding the motion. passing
unanimously on a vote of 5-t) on parcel 65- and .1-0-1 on parcel 5,1 with Mr. Vissing abstaining.
22.3 Pearl Street Resolution
Les Merkley advised that the property- loomed at 223 Pearl Street which was involved in a lawsuit with the
city, was transferred to federal court din to unpaid property tabes. in order to obtain title 10 the property,
the comurtission may pay the appraised value of the property 10 the Court.
Mr. Viti,ing male a motion to 2016-R-6. Resolution approving the payment of funds into the clerk. lar the
property at 223 Pearl Street. with Mr. Williams seconding the nttstion, passing unanimously on a vote of5-
0.
EXECUTIVE DIRECTOR OR REPORT
Mr. Whir staled to the l;unnnision that the (renter C'luc'k has benefited titin Iwo projects Isom
Redevelopment and city crews. Wilson Elementary et -armlet: taut the -Thompson Lint: intersection with I0'h
Street. Greater Clark had told Redevelopment lite) did not have funds to assist tvith (hese projects and
cnnveved easements as (heir contribution. Also pointed out that the retcr'enditin recently released had no
mention oI the need litr a bus depth updates. Mr. VWa'ri s igltestetl that these fuels be remenlbcit'i d should
the school bunt] request assistance in future projects.
I'UI3t.IC COMMENTS
None
I3U,AItI) COMMEN'T'S
Mayor Mike Moore lots o1 ;gond things happened tonip.bi
Jack No comments
Cattle Jahn No e0 lltnems
Kyle Williams No conunents
Ivionty Snelling-- advised he will he proposing projects in 11 lc 1 tL l' Ile [tit) stater) he is disappointed
with the school system.
ADJOURNMENT
ivlr. Vissinnt made a motion to adjourn at 7:1 I I'M. with Ms, Jahn seconding the motion,
• Monty 511011111 ! Ifrr:x' L tit.
S'►►hnrilltl Lt r;' (7iel1',S4ilerl
1:13 cif
EXHIBIT G
Lender Protections
(Subsection 5.2(c))
1. Definitions. The following terms shall have the following definitions under this Exhibit:
Agreement shall mean the Development Agreement by and between Developer and Commission to
which this Exhibit is attached and incorporated by reference. All capitalized terms used but not defined in
this Exhibit shall have the meanings ascribed to such terms in the Agreement.
Collateral shall mean: (a) the Property; (b) the Project; (c) any improvements that are: (i) located on the
Project Site; or (ii) comprise the Project; (d) the Agreement; (e) the rights and interests of Developer
under and in the Agreement; and/or (f) any fixtures or other items of personal property that are subject to
a Mortgage (including, without limitation, contracts, agreements, and rights and interests in contracts and
agreements)
Cure Period shall mean a period of 30 days after (a) Developer fails to perform or observe any term or
condition of the Agreement to be performed or observed by it; and (b) Developer and Mortgagee receive
notice specifying the nature of the failure; provided that. if the failure is of such a nature that it cannot be
remedied within 30 days, despite reasonably diligent efforts, then the 30 day period shall be extended as
reasonably may be necessary for Developer to remedy the failure, so long as Developer: (a) commences
to remedy the failure within the 30 day period; and (b) diligently pursues such remedy to completion.
Demand Notice shall mean a copy of any notice or demand required or permitted to be made or
delivered by Commission to Developer and/or Mortgagee (including, without limitation, notice specifying
the nature of any failure by Developer to perform or observe any term or condition of the Agreement to be
performed or observed by it).
Event of Default shall mean the failure by Developer to perform or observe any term or condition of the
Agreement to be performed or observed by it: (a) with respect to the obligation to pay money, if such
failure is not cured within 10 days after such payment is due; and (b) with respect to any other obligation,
if such failure is not cured within the Cure Period.
Incurable Defaults shall mean Events of Default that cannot be cured by the payment of money or
through the exercise of reasonable diligence.
Mortgage shall mean a mortgage, assignment, or grant of security interest by Developer in all or any part
of the Collateral (including, without limitation, a collateral assignment of the Agreement and/or the rights
and interests of Developer under the Agreement); for the purpose of securing a loan, whether in a single
instrument or multiple instruments.
Mortgagee shall mean a holder of a Mortgage, and all successors and assigns of such holder
Mortgagee Cure Period shall mean the period that commences upon the Event of Default and expires
on the date that is 90 days after the later of: (a) the expiration of the Cure Period; or (b) receipt by
Mortgagee of the corresponding Demand Notice.
Mortgagee Remedies shall mean: (a) obtaining possession of all or any part of the Collateral; (b)
obtaining a receiver for all or any part of the Collateral; (c) foreclosing a Mortgage and effecting a
foreclosure sale of the interests of Developer in the Agreement; (d) enforcing a Mortgage and effecting an
assignment of the Agreement; or (e) otherwise effecting an acquisition or transfer of all or any part of the
Collateral and/or the rights and interests of Developer in the Agreement (including, without limitation, a
conveyance and/or assignment to Mortgagee or another Replacement Developer in lieu of foreclosure
and/or enforcement).
Permitted Termination shall mean a termination of the Agreement that: (a) is permitted pursuant to the
terms and conditions of the Agreement; and (b) occurs after all of: (i) the obligations of Commission; and
(ii) the rights of all Mortgagees; under Section 1 of this Exhibit have been: (i) performed and observed; or
(ii) recognized and expired, respectively.
Replacement Developer shall mean the party that acquires the Collateral and the interests of Developer
in the Agreement after a Mortgagee exercises a Mortgagee Remedy, which party may be Mortgagee or
its designee.
Mortgagee Rights shall mean, during all such times as there is a Mortgage outstanding, and until
Commission has received written notices from each Mortgagee that its Mortgage has been satisfied or
otherwise released, the following terms and conditions shall apply:
(a) Developer or each Mortgagee shall deliver written notice to Commission when a Mortgage
becomes effective, which notice shall: (i) identify the Mortgagee with respect to such Mortgage;
and (ii) set forth the notice address for the Mortgagee with respect to such Mortgage.
(b) Commission shall deliver Demand Notices to each Mortgagee at its notice address and in
accordance with the terms and conditions of Section 12.7 of the Agreement. No notice or
demand delivered by Commission to Developer shall be effective, unless and until a Demand
Notice is delivered to all Mortgagees in accordance with the terms and conditions of this Section.
(c) If there is an Event of Default with respect to the failure to pay money, then: (i) each Mortgagee
shall have the right to remedy the Event of Default or cause the Event of Default to be remedied,
until the expiration of the Mortgagee Cure Period; and (ii) Commission shall accept performance
by any Mortgagee as performance by Developer.
(d) Notwithstanding any other term or condition of the Agreement or this Exhibit, Commission shall
not exercise any of its rights and remedies under Article 10 or any other Section of the Agreement
with respect to such Event of Default, if: (i) within the first 60 days after receipt of a Demand
Notice, a Mortgagee notifies Commission of its intention to cure the corresponding Event of
Default; and (ii) within the first 75 days after receipt of the Demand Notice, the Mortgagee:
(A) commences a cure of the Event of Default and diligently pursues such cure to completion; or
(B) commences the exercise or pursuit of one or more of the Mortgagee Remedies, and: (1) after
commencement of the exercise or pursuit of the selected Mortgagee Remedies, diligently
exercises or pursues such Mortgagee Remedies; provided that, if the Mortgagee has commenced
the exercise or pursuit of the selected Mortgagee Remedies within 75 days after receipt of the
Mortgagee Notice, and continues such exercise or pursuit, then, for a period of 6 months after the
date on which the Mortgagee commenced the exercise or pursuit of the selected Mortgagee
Remedies, which period shall be extended as reasonably required by the Mortgagee, such
exercise or pursuit by the Mortgagee shall be deemed to be diligent; and (2) after obtaining or
effecting the selected Mortgagee Remedies, commences a cure of the Event of Default and
diligently pursues such cure to completion. The Mortgagee Cure Period automatically shall be
extended for the duration of any period when Commission is prohibited under this Subsection
from exercising its rights and remedies with respect to an Event of Default, without any notice or
acknowledgment to or by any party.
2. Amendments. During all such times as there is a Mortgage outstanding, no amendment,
modification, supplement, surrender, cancellation, or termination of the Agreement shall be effective,
unless all Mortgagees consent in writing to the amendment, modification, supplement, surrender,
cancellation, or termination of the Agreement; provided that a Permitted Termination shall be effective .
Any attempted amendment, modification, supplement, surrender, cancellation, or termination of the
Agreement without the consent of all Mortgagees, other than a Permitted Termination, shall: (a) be void
and unenforceable; and (b) have no force or effect. If, in connection with any attempts by Developer to
obtain mortgage financing from a prospective mortgagee, such prospective mortgagee requires
reasonable amendments, modifications, or supplements of or to the Agreement as a condition to closing
such financing, then Developer and Commission shall execute an agreement amending, modifying, or
supplementing the Agreement as required by the mortgagee; provided that such amendments,
modifications, or supplements shall not: (a) affect Commission, or the rights of Commission under the
Agreement, in any material, adverse respect; or (b) reduce any obligations of Developer under the
Agreement in any material respect.
3. Default Cures. No term or condition of the Agreement or this Exhibit shall be deemed: (a) to
require any Mortgagee to: (i) satisfy any obligation of Developer under the Agreement; or (ii) cure any
Event of Default (or failure by Developer to perform or observe any term or condition of the Agreement to
be performed or observed by it); or (b) otherwise to make any Mortgagee liable for any Event of Default
(or any such failure); provided that, if a Mortgagee exercises a Mortgagee Remedy, then the
Replacement Developer promptly shall: (x) pay or cause to be paid to Commission all amounts owing
from Developer to Commission under the Agreement, if any; and (y) commence a cure of any other
uncured Events of Default that can be cured: (A) by the payment of money; or (B) by the Replacement
Developer through the exercise of reasonable diligence; and diligently pursue such cure to completion.
Notwithstanding the foregoing, the Replacement Developer shall not be: (1) required to cure any
Incurable Defaults; (2) liable for, or with respect to, any Incurable Defaults; or (3) liable for any damages,
losses, or expenses (including, without limitation, reasonable attorneys' fees), incurred by Commission in
connection with any uncured Events of Default (or failures by Developer to perform or observe any term
or condition of the Agreement to be performed or observed by it) that existed before or as of the date on
which the Replacement Developer acquires the Collateral.
4. Replacement Developers. As of the date on which a Replacement Developer acquires the
Collateral, the Replacement Developer shall be deemed to be the Developer under the Agreement,
subject to the terms and conditions of this Exhibit, having and holding, and being fully vested with, all of
the rights and interests of Developer under and in the Agreement, without any consent or agreement of
Commission or any other party, and, upon receipt of a written request, Commission shall execute an
acknowledgment of the foregoing. If the Replacement Developer is Mortgagee or its designee, then, at
any time and notwithstanding any other term or condition of the Agreement or this Exhibit:
(a) Replacement Developer may assign its rights and interests under and in the Agreement to a substitute
developer without any consent or agreement of Commission or any other party; (b) on the date of the
assignment: (i) such substitute developer shall become the Replacement Developer under this Exhibit
and the Developer under the Agreement, subject to the terms and conditions of this Exhibit, having and
holding, and being fully vested with, all of the rights and interests of Developer in and under the
Agreement; and (ii) Mortgagee or its designee shall be released from all obligations and duties under the
Agreement and all liabilities for any Event of Default (or failure by Developer or the Replacement
Developer to perform or observe any term or condition of the Agreement to be performed or observed by
it), and (c) upon receipt of a written request, Commission shall execute an acknowledgment of the
foregoing.
EXHIBIT H
Depiction and Description of INGOT Improvements
(Subsection 6.3(g))
[See attached]
KEYSTONE GATEWAY DEVELOPMENT
JEFFERSONVILLE, IN
INDOT IMPROVEMENTS
JOB NO: 15053
DATE:03/02/2016
SCALE:1" 30'
Lacobi.'Coombs & Lan; Inc.
urrrfrrrrg 6•rrgruu• & LandSrryrrr.
6 4pnnk 51ati1, 4m1: 4111 • Nclr 1516au1. 1404,55.17.5n
Ir 12.415.7}Ri - www 111.E` U C V til
SHEET
H
xolx
EXHIBIT I
Depiction of Access Parcel and Access Road
(Subsection 9.1(a)(x))
[See attached]
EXHIBIT I
ACCESS
PARCEL
3f1N3AYVNVICINI
2' CURB & GUTTER,
2' GRASS STRIP
5' SIDEWALK
P'0
PGLS 24'
54.29' 7
(AT PL)
EXHIBIT J
Depiction and Description of Street Improvements
(Subsection 6.3(h))
[See attached]
1••
I Net
pnotec
,1,w1nm,1,.41,1S
o
CITY OF JEFFERSONVILLE
GATEWAY ROAD IMPROVEMENTS
JEFFERSONVILLE, INDIANA
OVERALL SITE PLAN
arYoFJEFFELSONVILE Jaicohi,To mb.&L nz, inc.
pffiRY[Lp F commission La ,..,fr ,K EndGnm d la,l9mq.+ra
I
:,
1u0OUARIENMASIER HURT OM. aa+t1.W16, w.iwiyw.anw
�µJEFFERSONVILLINDIANA
nn.,.nn.w•�ma>,�aw
t 012)2a66406
EXHIBIT K
!Intentionally Omitted]
EXHIBIT L
Depiction and Description of Utility Improvements
(Subsection 6.3(1))
[See attached]
Ex. PL
i]1Ji11ili1il11111i1i111111111111111II
Ex. PL
EXHIBIT L
_
tQ' Sanitary Sewer,
Drainage & Utility Esmt.
1 1
Ili til fi1111111iH ili?Ifllfllllll1111111'11111111.11111iii1111111!11111iiillill
gi
Li
9TH STREET
Ex. PL,..
:i
40' Sanitary-
Sewer.
anita Sewer. Drainage
& Utility Esmt.
SEWER LI
N\41
L/`
`73-71-
3 n N 3AV
I - -
3nN3AV VNVIC
r
8TH ST.
EXHIBIT M
FIntentionally Omitted'
EXHIBIT N
Dates for Satisfaction of
Developer Closing Conditions
(Section 6.4)
(a) Representations and Warranties
(b) Commission Closing Documents
(c) Project Plan Approval
(d) Project Funding
(e) Project Permits
(f) Stormwater System
(g) INDOT Commitments
(h) Street Improvements Plans
(1) Street Improvements Permits
(j) Street Improvements Funding
(k) INDOT Ingress/Egress Approval
(1) Utilities Improvements
(m) Utility Easement Area
(n) [Intentionally Omitted]
(o) Phase II Assessment
[Not Applicable]
IDEM Comfort Letters
Remediation Plan
New Hazardous Materials
Title Policy Coverage
Commission Performance
As of the Closing Date
As of the Closing Date
Sixty (60) days after initial submission date of
proposed Project Plans as provided in and
subject to the terms of Section 4.2
Twelve (12) months after Discretionary
Termination Date
As of the Closing Date
As of the Closing Date
Ninety (90) days after the Effective Date
Ninety (90) days after the Effective Date
Ninety (90) days after the Effective Date
Ninety (90) days after the Effective Date
Ninety (90) days after the Effective Date
Three (3) months after the Discretionary
Termination Date
One (1) month after the Discretionary
Termination Date
(A) Completed
(B) The Discretionary Termination Date
(C) The Discretionary Termination Date
(D) The Discretionary Termination Date
The Discretionary Termination Date
The Discretionary Termination Date
As of the Closing Date
As of the Closing Date
As of the Closing Date
EXHIBIT 0
Obligations of Commission that Survive Closing
(Identified by Section or Subsection)
(Subsection 9.1(a)(viii))
Provisions of Subsection 1.2(e)
Representations and warranties in Section
Provisions of Section 5.2
Provisions of Section 10.3
Representations and warranties in Section
Provisions of Section 12.18
Provisions of Subsection 12.19(a)
Provisions of Subsection 12.19(b)
Provisions of Subsection 12.19(c)
Provisions of Subsection 12.19(d)
(Fora period of one (1) year alter the Closing)
3.1 (For a period of one (1) year alter the Closing)
(Until satisfaction of the Construction Condition)
(With respect to payment of attorneys' fees)
12.2 (As to dealings with brokers, agents, and finders)
(As to General Utility Easement Relocation Right)
(As to Building Plans and Building Improvements)
(As to construction of Street Improvements)
(As to completion of Environmental Remediation)
(As to efforts to enforce INDOT commitments)
EXHIBIT P
Obligations of Developer that Survive Closing
(Identified by Section or Subsection)
(Subsection 9.1(b)(iv))
Provisions of Subsection 1.2(d)
Representations and warranties in Section 3.2
Provisions of Section 5.2
Provisions of Section 10.3
Provisions of Article 11
Representations and warranties in Section 12.2
Provisions of Section 12.18
Provisions of Subsection 12.19(a)
(Fora period of one (1) year after the Closing)
(For a period of one (1) year after the Closing)
(Until satisfaction of the Construction Condition)
(With respect to payment of attorneys' fees)
(As to waivers, releases, and rights limitations)
(As to dealings with brokers, agents, and finders)
(As to General Utility Easement Relocation Right)
(As to Building Plans and Building Improvements)
EXHIBIT Q
Phase II Assessment Parameters,
Disclosed Environmental Matters,
Environmental Remediation Plan Standards, and
Affirmative Obligations of Commission
With Respect to Environmental Remediation
(Closing Paragraph of Section 3.1 and
Subsections 6.3(o), (p), and (r) and 12.19(c))
The Existing Phase II Assessment has been completed. In addition to Commission causing an update to
the Existing Phase II Assessment for the entire Property (the "Updated Phase II Assessment") to be
undertaken and completed by ATC Group Services LLC (the "Environmental Engineer") pursuant to
Subsection 6.3(o), Commission has undertaken responsibility for: (a) the Existing Phase II Assessment
being certified to Developer; (b) a true, correct, and complete copy of the Existing Phase II Assessment
being delivered to Developer; and (c) the conclusions that: (i) there are no other environmental matters
that should have been disclosed by the Existing Phase II Assessment, other than the environmental
matters actually disclosed and listed on Schedule Q-1 (the "Disclosed Environmental Matters"); (ii) no
Disclosed Environmental Matters are within the purview of the United States Environmental
Protection Agency ("USEPA") to address; and (iii) all Disclosed Environmental Matters may be
addressed by the Indiana Department of Environmental Management ("IDEM"), without the participation
of USEPA.
Commission, at its expense, shall exercise its best efforts to obtain (and in all respects cooperate and
assist with the efforts of Developer to obtain) one or more Indiana Brownfields Program Comfort Letters
from IDEM with respect to the Disclosed Environmental Matters and any additional environmental matters
disclosed by the Updated Phase II Assessment (which must also be outside the purview of the USEPA
and able to be addressed by IDEM) (the "New Disclosed Environmental Matters"), which letters (the
"IDEM Comfort Letters") shall: (a) be in form and substance satisfactory to Developer; (b) cover all
Disclosed Environmental Matters and any New Disclosed Environmental Matters; and (c) include or
impose only such conditions, requirements, or restrictions as Developer determines to be acceptable and
compatible with the development, construction, completion, use, occupancy, and operation of the Project
improvements.
If there is additional environmental assessment of the Property (and/or the groundwater under or flowing
toward the Property) (the "Additional Assessment") to be undertaken and completed as a condition or
requirement of obtaining the IDEM Comfort Letters, then Commission, at its expense, shall: (a) cause the
Environmental Engineer to promptly and expeditiously undertake and complete the Additional
Assessment in accordance with assessment parameters that are required or approved by IDEM; (b) the
Additional Assessment to be certified to Developer: and (c) a true, correct, and complete copy of the
Additional Assessment to be delivered to Developer.
If there is additional environmental remediation of the Property (and/or the groundwater under or flowing
toward the Property) or engineering controls or management plans for the Property (the "Additional
Remediation") to be undertaken and completed as a condition or requirement of obtaining the IDEM
Comfort Letters or otherwise addressing environmental matters with IDEM, then Commission, at its
expense, shall cause the Environmental Engineer to promptly and expeditiously: (a) prepare a plan to
provide such additional remediation (the "Additional Remediation Plan") in accordance with remediation
parameters that are required or approved by IDEM; and (b) provide a true, correct, and complete copy of
the Additional Remediation Plan to Developer; (c) obtain the approval by IDEM of the Additional
Remediation Plan: and (d) cause the Environmental Engineer to: (i) undertake and complete the
Additional Remediation: (A) in accordance with the approved Additional Remediation Plan and the terms
and conditions of this Exhibit; (B) in a good and workmanlike manner that complies with all Laws, and (C)
in satisfaction of the conditions and requirements of IDEM; and (ii) obtain the IDEM Comfort Letters.
Schedule Q-1
Disclosed Environmental Matters
[To be provided by Commission and agreed to by Developer]
[ The following letter was provided by Commission as a listing of environmental matters disclosed ]