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Home My WebLink AboutPAYMENT AGREEMENT • PAYMENT AGREEMENT This Payment Agreement (the "Agreement"), by and between The City of Carmel Redevelopment Commission ("CRC") a d RH of Indiana, L.P., an Indiana limited partnership (the "Developer"), executed this 1-t y of uL_,;,.-,c , 2001, WITNESSES: Recitals WHEREAS, CRC and Developer have entered that certain Project Agreement dated 112(.v■ "2(b , 2001 (the"Project Agreement"); WHEREAS,pursuant to the Project Agreement,at the closing of the transaction contemplated in the Project Agreement(the"Closing"),CRC and Developer are to execute an agreement pursuant to which, if certain conditions are fulfilled, Developer shall pay to CRC additional proceeds; WHEREAS, the Closing is occurring on the date hereof; and WHEREAS, CRC and Developer desire to enter into this Agreement, as contemplated in the Project Agreement; Agreement NOW,THEREFORE,for good and valuable consideration,the-receipt and sufficiency of which are acknowledged hereby, CRC and Developer agree as follows: 1. Agreement. If Developer: (a)sells a Townhouse that is labeled as an"exterior unit"on the site plan attached to the Project Agreement for a Gross Sales Price (as defined in Section 2) equal to or in excess of $220,000.00; or (b) sells a Townhouse that is labeled as in "interior unit" on the Site Plan for a Gross Sales Price equal to or in excess of$190,000.00; then, in each such case, within five business days after receipt of proceeds from the closing of such sale, Developer shall deliver to CRC:(a)$2,500.00(the"Premium");and (b) certified copies of: (i) the purchase agreement for the Townhouse; and (ii) the closing statement. 2. Gross Sales Price. For purposes of this Agreement, "Gross Sales Price" shall mean the stated purchase price on the contract for purchase of the Townhouse, less the amount of customary closing costs and mortgage loan points paid by Developer on behalf of a purchaser of a Townhouse; provided that"Gross Sales Price"shall not include the amount of any change orders with respect to the applicable Townhouse that are entered into after the original contract between Developer and its purchaser, so long as such change orders are not entered into with the intent to reduce the initial Gross Sales Price below $190,000.00 or $220,000.00, as applicable. 3. Reports. (a) Maintenance. Developer shall keep, at its offices in Indianapolis, Indiana, an accurate and complete set of books and records regarding the sales of the Townhouses(the "Records"). All of the Records shall be kept for at least one year after the sale of the final Townhouse. (b) Audit. CRC and its employees and agents, upon reasonable notice to Developer, may inspect and audit the Records at all reasonable times during ordinary business hours. If there is a dispute as to whether Developer owes a Premium to CRC, then Developer shall keep the Records with respect to the sale of the Townhouse in question until the dispute is 4110 settled. (c) Statements. On or before the 15th day of each calendar month until the 15th day of the calendar month following the sale of the final Townhouse, Developer shall submit to CRC an written statement that accurately: (i) identifies the Townhouses sold since the last statement delivered to CRC; and (ii) sets forth the Gross Sales Price for each such Townhouse. 4. Remedies. If Developer breaches this Agreement, then, in addition to all rights and remedies available at law or in equity, CRC may take such actions as are necessary or appropriate to: (a) specifically enforce the terms and conditions of this Agreement; or (b) enjoin the breach by Developer. If Developer: (a) fails to pay any Premium when due; or (b) after the execution of a contract between Developer and its purchaser, enters into any change orders with respect to a Townhouse with the intent to reduce the initial Gross Sales Price below $190,000.00 or $220,000.00, as applicable (either, a "Monetary Default"); then: (a) Developer shall pay to CRC liquidated damages in the amount of $10,000.00 with respect to each Monetary Default(the"Liquidated Damages"); and (b) CRC shall have a lien on all Townhouses that remain unsold until Developer has paid the Liquidated Damages to CRC; provided that: (i)CRC may perfect such lien by recording an affidavit of lien in the Office of the Hamilton County Recorder; and (ii) such lien may be foreclosed or enforced in the same manner as a mortgage lien. Notwithstanding the foregoing, for the first four times that Developer fails to pay any Premium when due, no such failure shall be deemed to be a Monetary Default: (a) in the case of each of the first two failures, until such failure continues for ten days after CRC delivers to Developer written notice of such failure; provided, that, in the event that Developer pays the Premium(s)for a particular unit or units after the date due but before receipt of any notice of audit as provided in Section 3(b)or notice of failure to pay, then: (i) such failure(s) shall not constitute a Monetary Default; and (ii) such failure(s) shall not count towards the foregoing first two failures; and (b) in the case of each of the third and fourth failures, until such failure continues for ten days after the date that such Premium is due; provided that, during the period between the date on which the Premium is due and the date on which the • applicable grace period expires, such Premium shall bear interest at the rate of 18% per annum. Developer shall reimburse CRC for all reasonable attorneys fees and court costs incurred by CRC in connection with the exercise of its rights under this Section. 5. Notice. All payments, reports, notices, and other deliveries required under this Agreement shall be: deemed to have been delivered when: (a) delivered in person to the other party; or (b) sent by national overnight delivery service, with confirmation of receipt; addressed as follows: to CRC at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032, Attn: Steve Engelking, with a copy: (a) to Karl P. Haas, Esq., Wallack Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile: 317-231-9900; and to Developer at 7400 Shadeland Avenue, Suite 250, Indianapolis, Indiana 46256, Facsimile: 317-577-3847, Attn: Alan Goldsticker, Division President, with a copy to: The Ryland Group, Inc., 1274 W. Northwest Highway, Palatine, Illinois 60067, Facsimile: 847-963-9883, Attn: Kip W. Scott, Region President. 6. Miscellaneous. This Agreement shall inure to the benefit of, and be binding upon, CRC and Developer, and their respective successors and assigns. This Agreement constitutes the entire agreement between CRC and Developer with respect to the subject matter hereof, and may be modified only by a written agreement signed by both CRC and Developer. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana. The invalidity, illegality, or unenforceability of any one or more of the terms and conditions of this Agreement shall not affect the validity, legality, or enforceability of the remaining terms and conditions hereof. Capitalized terms used but not defined in this Agreement shall have the meanings ascribed to such terms in the Project Agreement. Any dispute between Developer and CRC under the terms of this Agreement shall be resolved in accordance with Section 23 of the Project Agreement. • Z:\Documents\Shoup,Jenny\City of Cannel\Townhouse 22Aug01 Parcel--Ryland\Payment Agreement v3.wpd -?- • and year first written IN WITNESS above. WHEREOF, CRC and Developer have executed this Agreement as of the day THE CITY OF CARMEL REDEVELOPMENT COMMISSI 2_ Printed:,;C-! Title: RH OF INDIANA, L.P. By: RH Builders of Indiana, Inc., general partner By: Joseph P.H ey,Assistant Vice President • • Z:\Documents\Shoup,Jenny\City of Cannel\Townhouse 22Aug01 Parcel--Ryland\Payment Agreement.v3.wpd _3