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HomeMy WebLinkAboutFirst Amendment to Project Agreement; 10/2/2014 FIRST AMENDMENT TO PROJECT AGREEMENT THIS FIRST AMENVMENT TO PROJECT AGREEMENT ("Amendment") is made and entered into as of the 0 day of October, 2014 (the "Effective Date"), by and between KG Main LLC, an Indiana limited liability company ("Developer") and The City of Carmel Redevelopment Commission ("CRC"). RECITALS WHEREAS, Developer and CRC are parties to that certain Project Agreement dated July 28, 2011, (the"Agreement"); and WHEREAS, Developer is in the process of the development and construction of the Project on the Project Site; and WHEREAS, per that certain Right of Way Dedication and Street Improvement Agreement by and between City and Developer (the "Dedication Agreement"), Developer agrees that Developer will convey to the City 46,319 square feet of the Project Site, worth approximately $373,192.18 per the calculations found in Section 11 of the Agreement, for the Road Improvements (as defined in the Dedication Agreement); and WHEREAS, CRC and City have both agreed that, in exchange for Developer agreeing to: (a) perform a portion of the CRC Site Work; and (b) assume all costs in excess of the Standard Construction Costs due to Substandard Soil Conditions; Developer may pursue approval of the issuance of tax increment financing bonds on 75% of the tax increment for the Project for 25 years (the "TIF Bonds"); and WHEREAS, Developer and CRC now desire to amend the Agreement as identified herein. NOW THEREFORE, in consideration of the foregoing, the mutual covenants contained herein and in the Agreement as amended and modified hereby, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby mutually agreed as follows: AGREEMENTS 1. Defined Terms. (a) Deletions. The defined terms "Soils Reimbursement" and "Soils Reimbursement Amount"in Section 1 of the Agreement hereby are deleted in their entirety. I (b) Restatements. The defined term "Typical Buildings" in Section 1 of the Agreement hereby is amended and restated, in its entirety, as follows: "Typical Buildings shall mean one or more mixed-use buildings that contain approximately 55,000 square feet in the aggregate. This shall not be deemed to require Developer to construct Typical Buildings." 2. Soils. Subsection 2(c) of the Agreement hereby is amended and restated, in its entirety, as follows: "(c) Soils. If through Soils Conditions Reports, Developer establishes that, due to: (i) the obligation to undertake such Special Safety Measures; or (ii) the existence of Substandard Soil Conditions; the cost to construct the Typical Buildings on the Project Site will exceed the Standard Construction Costs, then Developer, at its cost without any reimbursement from CRC, shall be responsible for the amount of such excess, as established by the Soils Conditions Reports." 3. Project. As used in the Agreement, the term "Project" shall be deemed to include, in addition to all other elements and descriptions in the Agreement, the CRC Site Work, excluding that portion to be performed under the Dedication Agreement. Accordingly, Developer hereby acknowledges and agrees that CRC shall have no duty, responsibility, or obligation with respect to any portion of the CRC Site Work. 4. Street Improvements. Developer and CRC hereby acknowledge and agree that: (a) pursuant to the terms and conditions of the Dedication Agreement, Developer has performed the obligations required under Section 11 of the Agreement; and (b) CRC shall have no further obligations under Section 11 of the Agreement. 5. CRC Rights. Except upon an Event of Default by Developer, the following rights of CRC under the Agreement are hereby waived in connection with the development and construction of the Project: (a) approval; (b) review; (c) inspection; (d) submission; and (e) any required agreement. 6. Terms. Unless otherwise defined in this Amendment, all terms capitalized in this Amendment shall carry the same definition as is provided for them in the Agreement. 7. Entire Agreement. The Agreement (as modified by this Amendment) contains the entire agreement of the parties hereto with respect to this subject matter and no representations, inducements, or agreements, oral or otherwise, between the parties that are not contained or embodied in the Agreement(as modified by this Amendment) shall be of any force or effect. 8. Waiver. No provision of the Agreement (as modified by this Amendment) may be waived, amended, or terminated except by a written instrument signed by the party against whom enforcement of such waiver, amendment, or termination is sought. 9. Agreement. Except as amended hereby, the Agreement shall remain in full force and effect to the same extent as if this Amendment had not been entered into. 10. Contingency. This Amendment is contingent upon approval, issuance, and purchase by Developer (or an affiliate) of the TIF Bonds. Signature page to follow -2- IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered by their duly authorized representatives as of the day and date first above written. KG MAIN LLC By: Keystt e Group LLC, Me ber / By: III Øtsa"Ozdemir, Member THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: 0 # . — _, .4 , _......, / Name: OZ.)-u.Awl C..... cx9vLSZe, Title: C_‘,u.Av�t(SSc©0 e� tl) / � / By: W Ai a& Name: VU'I 1 AA Title: 1 •Air 1 • -3-