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HomeMy WebLinkAbout2013 Project Agreement/Bob Merrill PROJECT AGREEMENT This Project Agreement (the "Agreement") by and between The City of Carmel Redevelopment Commission ("CRC"), and Robert Merrill ("Merrill"). executed this Z3 day of /I r , 2013 (the"Execution Date"), WITNESSES: Recitals WHEREAS, CRC owns the CRC Parcel; WHEREAS, in connection with the disposition of the CRC Parcel, CRC is required to comply with the Statute and conduct a public offering; WHEREAS, in compliance with the Statute, CRC: (a) prepared the Notice of Sale; and (b) published the Notice of Sale twice; WHEREAS, CRC did not receive any satisfactory bids with respect to the acquisition and redevelopment of the CRC Parcel; WHEREAS, because CRC did not receive any satisfactory bids with respect to the acquisition and redevelopment of the CRC Parcel, CRC has the right to enter into private negotiations with respect to the disposition and redevelopment of the CRC Parcel; provided that, CRC may not convey the CRC Parcel for an amount less than that set forth in the Notice of Sale for a period of at least 30 days; WHEREAS, CRC, in compliance with the Statute, has entered into private negotiations with Merrill; WHEREAS, the 30-day period set forth in the Statute has elapsed; WHEREAS, Merrill owns the Merrill Parcel; WHEREAS, CRC seeks to convey the CRC Parcel to Merrill in exchange for Merrill's conveyance of the Merrill Parcel to CRC; WHEREAS, Merrill seeks to convey the Merrill Parcel to CRC in exchange for CRC's conveyance of the CRC Parcel to Merrill; WHEREAS, Merrill seeks to construct the Project on the CRC Parcel; WHEREAS, CRC has determined that: (a) the conveyance of the CRC Parcel to Merrill; (b) the development of the Project on the CRC Parcel by Merrill; (c) the acquisition of the Merrill Parcel; and (d) Merrill's execution of the Parcel 62 Project Agreement; will best serve the interest of the community, from the standpoint of both human and economic welfare; and WHEREAS, the parties desire to enter into this Agreement; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, CRC and Merrill agree as follows: 1. Defined Terms. Arts District shall mean the area commonly known as the City of Carmel Arts & Design District. City shall mean the City of Carmel, Indiana. Closing shall mean the closing with respect to the conveyance of: (a) the CRC Parcel to Merrill; and (b) the Merrill Parcel to CRC. Closing Date shall mean the date of the Closing. CRC Parcel shall mean that certain real estate depicted and/or described on Exhibit A. Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition of this Agreement to be performed or observed by it receives 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 the defaulting party to remedy the failure, so long as the defaulting party commences to remedy the failure within the 30 day period, and diligently pursues such remedy to completion. Due Diligence Period shall mean a period of 60 days, commencing on the Execution Date. Environmental Assessment shall mean the existing Phase One Environmental Assessment of a Parcel. Event of Default shall have the meaning set forth in Subsection 9(a). Force Majeure shall mean, with respect to Merrill or CRC: (a) an act or omission of the other party; or (b) any other cause that is not within the reasonable control of Merrill or CRC, respectively(including, without limitation, unusually inclement weather, the unusual unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of public utility providers). Intended Use shall mean the use of: (a) the CRC Parcel by Merrill for the Project; and (b) the Merrill Parcel by CRC for CRC's intended use; as the case may be. IRPTL shall mean the Indiana Responsible Property Transfer Law, as amended. Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and/or decrees. Merrill Parcel shall mean that certain real estate depicted and/or described on Exhibit A. Notice of Sale shall mean that certain Notice of Sale of Real Estate for the Private Redevelopment of Redevelopment Parcel 931 issued by CRC. Parcel shall mean the CRC Parcel or the Merrill Parcel, as the case may be. Parcel 62 shall mean that certain real estate that, generally, is adjacent to: (a) 1st Avenue Southwest on the west; (b) Main Street on the north; (c) South Rangeline Road on the east; and (d) 1st Street Southwest on the south; as more particularly depicted and/or described on Exhibit B. Parcel 62 Project shall mean the project by CRC (or a Merrill chosen by CRC) to develop or redevelop the Parking Areas to serve Parcel 62 and/or the Arts District as a single, unified parking lot, which parking lot shall be of similar character and quality as other parking lots developed and/or controlled by CRC in the Arts District. -2- Parcel 62 Project Agreement shall mean an agreement by and between CRC and Merrill for the Parcel 62 Project, which agreement shall contemplate: (a) a temporary construction easement in favor of CRC (or a Merrill chosen by CRC) to construct the Parcel 62 Project on the CRC Parcel; (b) a permanent easement for access, ingress, and egress in favor of CRC to maintain the Parcel 62 Project; (c) permanent easements for access, parking, ingress, and egress in favor of the general public to allow members of the general parking to park temporarily in parking spaces designated for public use; and (d) that a memorandum of such agreement, in form and substance reasonably satisfactory to both parties, be signed and placed of record on the CRC Parcel. Parking Areas shall mean the parking areas of Parcel 62 generally depicted on Exhibit B. Permitted Exceptions shall mean any exceptions to title reflected in the Title Commitment: (a) that are not Title Defects; or (b) to which: (i) CRC, in the case of the Title Commitment for the Merrill Parcel, or Merrill, in the case of the Title Commitment for the CRC Parcel, does not object within 15 days after receipt by CRC or Merrill, as the case may be, of both the Title Commitment and the Survey (except the lien of any mortgage or other security instruments to be released at or before the Closing); or (ii) CRC or Merrill, as the case may be, agrees in writing to accept or is deemed to have waived pursuant to the terms and conditions of this Agreement. Project shall mean the demolition and/or material renovation or redevelopment of the CRC Parcel by Merrill. Real Estate Taxes shall mean all real estate taxes and assessments of any nature levied on, against, or with respect to a Parcel. Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for the Intended Use. Right of Entry shall mean a right of entry with respect to: (a) the CRC Parcel that grants to Merrill the right to enter upon the CRC Parcel; and (b) the Merrill Parcel that grants to CRC the right to enter upon the Merrill Parcel; to perform such tests, inspections, examinations, studies, and investigations as it reasonably deems to be necessary or appropriate. Statute shall mean Indiana Code § 36-7-14-22, as amended, replaced, and/or superseded from time to time. Survey shall mean an ALTA survey prepared by a surveyor reasonably satisfactory to: (a) Merrill, in the case of the CRC Parcel; or (b) CRC, in the case of the Merrill Parcel. Title Commitment shall mean a title insurance commitment for an owner's policy of title insurance with respect to a Parcel that: (a) is issued by the Title Insurer; and (b) commits to insure marketable, indefeasible fee simple title to such Parcel in the name of: (i) Merrill, in the case of the CRC Parcel; or (H) CRC, in the case of the Merrill Parcel. Title Defects shall mean conditions or defects of a Parcel disclosed in the Title Commitment, or by the Survey, that materially and adversely interfere with the Intended Use for such Parcel; provided that, the lien of any mortgage or other security instruments to be released at or before the Closing shall not be a Title Defect. Title Insurer shall mean Hamilton Title Security, LLC. -3- 2. Obligations of Parties. (a) CRC. CRC, at the Closing, shall convey to Merrill fee simple title to the CRC Parcel, subject to the terms and conditions of this Agreement. (b) Merrill. Merrill shall: (i) at the Closing: (A) convey to CRC fee simple title to the Merrill Parcel; and (B) execute the Parcel 62 Project Agreement; (ii) commence construction of the Project within 180 days after the Closing Date; and (Hi) complete construction of the Project; in each case, subject to the terms and conditions of this Agreement. 3. Closing. Subject to the terms and conditions of this Agreement, the Closing shall occur on or before the date that is 15 days after the expiration of the Due Diligence Period, with the Closing Date to be established mutually by CRC and Merrill. The Closing shall take place at the office of the Title Insurer, or at such other place as CRC and Merrill mutually agree. 4. Closing Documents. At the Closing, CRC and/or Merrill, as the case may be, shall execute and deliver the following documents: (a) a limited warranty deed conveying to: (i) Merrill marketable, indefeasible fee simple title to the CRC Parcel, free and clear of any and all liens, encumbrances, easements, restrictions, covenants, and other title defects, except the lien of current Real Estate Taxes not delinquent and the Permitted Exceptions; and (ii) CRC marketable, indefeasible fee simple title to the Merrill Parcel, free and clear of any and all liens, encumbrances, easements, restrictions, covenants, and other title defects, except the lien of current Real Estate Taxes not delinquent and the Permitted Exceptions; (b) vendor's affidavits in form and substance required for the Title Insurer to delete the standard "pre-printed" exceptions; (c) affidavits that CRC or Merrill, as the case may be, is not a "foreign person", in form and substance required by the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder; (d) affidavits that, to the best of: (i) CRC's knowledge, the CRC Parcel is not "property" under IRPTL, in form and substance reasonably satisfactory to Merrill; and (ii) Merrill's knowledge, the Merrill Parcel is not "property" under IRPTL, in form and substance reasonably satisfactory to CRC; (e) a confirmation by CRC of the representations and warranties set forth in Subsection 8(a), in form and substance reasonably satisfactory to Merrill; (f) a confirmation by Merrill of the representations and warranties set forth in Subsection 8(b), in form and substance reasonably satisfactory to CRC; (g) the Parcel 62 Project Agreement, in form and substance reasonably satisfactory to CRC and Merrill; and (h) such other customary documents and instruments as CRC, Merrill, or the Title Insurer reasonably may request in connection with the Closing. At the Closing: (a) CRC: (i) shall pay 1/2 of the recording fees and closing fees and costs of the Title Insurer; and (ii) at its cost, shall deliver to Merrill an owner's policy of title insurance with respect to the -4- CRC Parcel, issued by the Title Insurer and conforming with the Title Commitment for the CRC Parcel; and (b) Merrill: (i) shall pay % of the recording fees and closing fees and costs of the Title Insurer; and (ii) at his or its cost, shall deliver to CRC an owner's policy of title insurance with respect to the Merrill Parcel, issued by the Title Insurer and conforming with the Title Commitment for the Merrill Parcel. Merrill or CRC, as the case may be, shall pay for all endorsements requested by Merrill or CRC, as the case may be, for its respective owner's policy of title insurance. 5. Taxes. Merrill assumes and agrees to pay: (a) both installments of Real Estate Taxes payable with respect to the Merrill Parcel during the calendar year in which Closing occurs; and (b) so much of the Real Estate Taxes assessed for and first becoming a lien against the Merrill Parcel during the calendar year in which Closing occurs as shall be allocable to Merrill by proration (based upon the number of days in the calendar year in which Closing occurs prior to and including the Closing Date). Merrill assumes and agrees to pay so much of the Real Estate Taxes assessed for and first becoming a lien against the CRC Parcel during the calendar year in which Closing occurs as shall be allocable to Merrill by proration (based upon the number of days remaining in the calendar year in which Closing occurs after the Closing Date). CRC shall pay: (a) both installments of Real Estate Taxes payable with respect to the CRC Parcel during the calendar year in which Closing occurs; and (b) so much of the Real Estate Taxes assessed for and first becoming a lien against the CRC Parcel during the calendar year in which Closing occurs as shall be allocable to CRC by proration (based upon the number of days in the calendar year in which Closing occurs prior to and including the Closing Date). The current tax rate shall be used for the purpose of such prorations if the applicable tax rate has not been set. Any Real Estate Taxes that are not assumed by Merrill or CRC, as the case may be, and that are not due and payable at the time of Closing shall be allowed to Merrill or CRC, as the case may be, as a credit, offset, or payment at Closing, and CRC or Merrill, respectively, shall not be further liable for such Real Estate Taxes. 6. Merrill Conditions. The obligations of Merrill with respect to Closing shall be subject to the satisfaction or waiver in writing, within the Due Diligence Period, or within such other period as is specified by the terms and conditions of this Section, of the following: (a) Commitment. Within 10 days after the Execution Date, CRC, at its cost, shall have provided the Title Commitment for the CRC Parcel to Merrill. (b) Survey. Within 30 days after the Execution Date, Merrill, at its cost, shall have provided the Survey of the CRC Parcel to Merrill. (c) Title Defects. Merrill shall have determined that neither the Title Commitment for the CRC Parcel nor the Survey of the CRC Parcel reflects any Title Defects, other than those Title Defects that CRC commits to cure or remove at or before the Closing. (d) Right of Entry. Within five days after the Execution Date, CRC shall have provided the Right of Entry to Merrill. (e) Environmental Assessment. Within five days after the Execution Date, CRC shall have provided to Merrill the Environmental Assessment for the CRC Parcel. Merrill, at its cost, may obtain any environmental testing or assessments in addition to the Environmental Assessment that it deems to be necessary or appropriate. (f) Environmental Condition. Merrill shall have determined that there: (i) is no contamination or pollution of the CRC Parcel or any groundwater thereunder by any hazardous waste, material, or substance in violation of any Laws; (ii) are no underground storage tanks located on the CRC Parcel; and (iii) are no wetlands on the CRC Parcel. -5- (g) Physical Condition. Merrill shall have determined that no test, inspection, examination, study, or investigation of the CRC Parcel establishes that the CRC Parcel is unsuitable for the Intended Use. (h) Utility Availability. Merrill shall have determined that gas, electricity, telephone, water, storm and sanitary sewer, and other utility services in adjoining public rights-of- way or properly granted and recorded utility easements are serving or will serve the CRC Parcel at adequate pressures and in sufficient quantities and volumes for the Intended Use. (i) Required Permits. Merrill shall have obtained, or shall be able to obtain, all Required Permits. (j) No Breach. As of the Closing Date: (i) there shall be no breach of this Agreement by CRC that CRC has failed to cure within the Cure Period; and (ii) all of the representations and warranties set forth in Subsection 8(a) shall be true and accurate in all respects. If one or more of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied, then, as its sole and exclusive remedy, Merrill either may elect to: (i) waive in writing satisfaction of the conditions and to proceed to Closing; or (ii) terminate this Agreement by a written notice to CRC; provided that, with respect to breaches of this Agreement by CRC, Merrill shall have the rights and remedies set forth in Section 9. If: (i) one of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied; and (ii) Merrill fails to terminate this Agreement as permitted in this Section within the period specified for satisfaction of such condition; then such unsatisfied condition automatically shall be deemed to be waived by Merrill. 7. CRC Conditions. The obligations of CRC with respect to Closing shall be subject to the satisfaction or waiver in writing, within the period that is specified by the terms and conditions of this Section, of the following: (a) Commitment. Within 10 days after the Execution Date, Merrill, at his cost, shall have provided the Title Commitment for the Merrill Parcel to CRC. (b) Survey. Within 30 days after the Execution Date, CRC, at its cost, shall have obtained the Survey of the Merrill Parcel. (c) Title Defects. CRC shall have determined that neither the Title Commitment for the Merrill Parcel nor the Survey of the Merrill Parcel reflects any Title Defects, other than those Title Defects that Merrill commits to cure or remove at or before the Closing. (d) Right of Entry. Within five days after the Execution Date, Merrill shall have provided the Right of Entry to CRC. (e) Environmental Assessment. Within five days after the Execution Date, Merrill shall have provided to CRC the Environmental Assessment for the Merrill Parcel. CRC, at its cost, may obtain any environmental testing or assessments in addition to the Environmental Assessment that it deems to be necessary or appropriate. (f) Environmental Condition. CRC shall have determined that there: (i) is no contamination or pollution of the Merrill Parcel or any groundwater thereunder by any hazardous waste, material, or substance in violation of any Laws; (ii) are no underground storage tanks located on the Merrill Parcel; and (iii) are no wetlands on the Merrill Parcel. -6- (g) Physical Condition. CRC shall have determined that no test, inspection, examination, study, or investigation of the Merrill Parcel establishes that the Merrill Parcel is unsuitable for the Intended Use. (h) Utility Availability. CRC shall have determined that gas, electricity, telephone, water, storm and sanitary sewer, and other utility services in adjoining public rights-of- way or properly granted and recorded utility easements are serving or will serve the Merrill Parcel at adequate pressures and in sufficient quantities and volumes for the Intended Use. (i) No Breach. As of the Closing Date: (i) there shall be no breach of this Agreement by Merrill that Merrill has failed to cure within the Cure Period; and (ii) all of the representations and warranties set forth in Subsection 8(b) shall be true and accurate in all respects. (j) Required Permits. CRC shall have obtained, or shall be able to obtain, all Required Permits. If one or more of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied, then, as its sole and exclusive remedy, CRC either may elect to: (i) waive in writing satisfaction of the conditions and to proceed to Closing; or (ii) terminate this Agreement by a written notice to Merrill; provided that, with respect to breaches of this Agreement by Merrill, CRC shall have all of the rights and remedies set forth in Section 9. If: (i) one of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied; and (ii) CRC fails to terminate this Agreement as permitted in this Section within such period as is specified for satisfaction of such condition; then such unsatisfied condition automatically shall be deemed to be waived by CRC. 8. Representations and Warranties. (a) CRC. CRC represents and warrants to Merrill that: (i) CRC shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach of this Agreement; (ii) to the best of CRC's knowledge, there is not now, and there has not been, any contamination or pollution of the CRC Parcel or any groundwater thereunder by any hazardous waste, material, or substance in violation of any Laws, except as may be disclosed in the Environmental Assessment of the CRC Parcel; (iii) to the best of CRC's knowledge, the CRC Parcel is not "property" under IRPTL; (iv) CRC is a public body organized and existing under the laws of the State of Indiana; and (v) CRC has the power to enter into this Agreement and to perform its obligations hereunder, CRC duly has been authorized by proper action to execute and deliver this Agreement, and to perform its obligations hereunder, and this Agreement is the legal, valid, and binding obligation of CRC. (b) Merrill. Merrill represents and warrants to CRC that: (i) Merrill shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach of this Agreement; (ii) to the best of Merrill's knowledge, there is not now, and there has not been, any contamination or pollution of the Merrill Parcel or any groundwater thereunder by any hazardous waste, material, or substance in violation of any Laws, except as may be disclosed in the Environmental Assessment of the Merrill Parcel; and (iii) to the best of Merrill's knowledge, the Merrill Parcel is not"property" under IRPTL. 9. Default. (a) Events of Default. It shall be an "Event of Default" if any party fails to perform or observe any term or condition of this Agreement to be performed or observed by it with respect to any obligation, if such failure is not cured within the Cure Period. (b) Remedies. Whenever an Event of Default occurs, the non-defaulting party may take whatever actions at law or in equity are necessary or appropriate to: (i) protect the rights granted to the non-defaulting party under this Agreement; (ii) enforce the performance or observance by the defaulting party of any term or condition of this Agreement (including, without limitation, the right to specifically enforce any such term or condition); or (Hi) cure, for the account of the defaulting party, any failure of the defaulting party to perform or observe a material term or condition of this Agreement to be performed or observed by it. If the non-defaulting party incurs any costs or expenses in connection with exercising its rights and remedies under, or enforcing, this Agreement, then the defaulting party shall reimburse the non-defaulting party for all such costs and expenses, together with interest at the rate of 15% per annum. (c) No Remedy Exclusive. No right or remedy herein conferred upon, or reserved to, a non-defaulting party is intended to be exclusive of any other available right or remedy, unless otherwise expressly stated; instead, each and every such right or remedy shall be cumulative and in addition to every other right or remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission by a non-defaulting party to exercise any right or remedy upon any Event of Default shall impair any such right or remedy, or be construed to be a waiver thereof, and any such right or remedy may be exercised from time to time, and as often as may be deemed to be expedient. To entitle a non-defaulting party to exercise any of its rights or remedies, it shall not be necessary for the non-defaulting party to give notice to the defaulting party, other than such notice as may be required by this Section or by the Laws. (d) Special CRC Remedy. Notwithstanding anything stated in this Agreement to the contrary, if, subject to Force Majeure, Merrill fails to commence demolition or construction work on the Project within 180 days after the Closing Date, then, in addition to any other rights and remedies available to CRC under this Agreement, at law, or in equity, CRC, upon written notice to Merrill, may demand that Merrill promptly pay to CRC an amount equal to the Real Estate Taxes payable on the CRC Parcel for the year in which such default occurs; provided that, if, after notice of such default by CRC, Merrill certifies to CRC in writing that Merrill (or his affiliate) is then in legitimate, good faith negotiations with an unaffiliated third party either to: (i) acquire real estate adjoining the CRC Parcel; or (ii) operate all of the first floor of the completed Project; in either case, which certification identifies with reasonable detail, subject to any confidentiality requirements, the type of transaction being negotiated and the status of such negotiations, then Merrill shall have: (a) an additional 30 days to commence demolition or construction work on the Project; and (b) additional 30-days periods thereafter upon delivery of subsequent certifications contemplated by this Subsection. (e) Survival. The terms and conditions of this Section shall survive the Closing. 10. Indemnification. CRC shall indemnify and hold harmless Merrill from and against any and all claims, damages, losses, and expenses (including, without limitation, attorneys' fees) arising from or connected with: (a) the performance of any tests, inspections, examinations, studies, or investigations on the Merrill Parcel by CRC or any party acting by, under, through, or on behalf of CRC; (b) the negligence or willful misconduct of CRC or any party acting by, under, through, or on behalf of CRC; or (c) the breach -8- by CRC of any term or condition of this Agreement. Merrill shall indemnify and hold harmless CRC from and against any and all claims, damages, losses, and expenses (including, without limitation, attorneys' fees) arising from or connected with: (a) the performance of any tests, inspections, examinations, studies, or investigations on the CRC Parcel by Merrill or any party acting by, under, through, or on behalf of Merrill; (b) the negligence or willful misconduct of Merrill or any party acting by, under, through, or on behalf of Merrill; or (d) the breach by Merrill of any term or condition of this Agreement. Notwithstanding anything to the contrary set forth herein, the obligations of the parties under this Section shall survive the termination of this Agreement. 11. Assignment. The parties shall not assign this Agreement without the prior written approval of the other parties hereto; provided that: (a) CRC may designate another agency or instrumentality of the City to take title to the Merrill Parcel at Closing without the prior written approval of Merrill; and (b) Merrill may designate an entity affiliated with Merrill to take title to the CRC Parcel at Closing without the prior written approval of CRC. Notwithstanding any assignment permitted under this Section, CRC or Merrill, as the case may, shall remain liable to perform all of the terms and conditions to be performed by it under this Agreement, and the approval by the other party of any assignment shall not release CRC or Merrill, as the case may be, from such performance. 12. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in writing, and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by facsimile, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to CRC, The City of Carmel Redevelopment Commission, 30 W. Main Street, Suite 220, Carmel, Indiana 46032, Attn: Les Olds, Executive Director, with a copy to Karl P. Haas, Esq., Wallack Somers & Haas, One Indiana Square, Suite 2300, Indianapolis, Indiana 46204; and to Merrill at 9589 Valparaiso Court, Indianapolis, Indiana 46268, Attn: John Levinsohn. 13. Force Majeure. Notwithstanding anything to the contrary set forth herein, if either party is delayed in, or prevented from, observing or performing any of its obligations under, or satisfying any term or condition of, this Agreement as a result of Force Majeure; then: (a) the party asserting Force Majeure shall deliver written notice to the other party; (b) such observation, performance, or satisfaction shall be excused for the period of days that such observation, performance, or satisfaction is delayed or prevented; and (c) the deadlines for observation, performance, and satisfaction, as applicable, shall be extended for the same period. 14. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. Subject to Section 11, this Agreement shall inure to the benefit of, and be binding upon, CRC and Merrill, and their respective successors and assigns. This Agreement constitutes the entire agreement between CRC and Merrill with respect to the subject matter hereof, and may be modified only by a written agreement signed by each of CRC and Merrill. 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. Whenever in this Agreement a singular word is used, it also shall include the plural wherever required by the context and vice versa. All Exhibits to this Agreement are attached hereto and incorporated herein by reference. This Agreement shall not be construed to create a contractual relationship with, give rights or benefits to, or create a cause of action in favor of, anyone other than the parties hereto. All indemnities set forth in this Agreement shall survive the expiration of the Term or the earlier termination of this Agreement. The paragraph headings shall not be considered in any way to affect the interpretation of this Agreement, and this Agreement shall not be construed against the drafting party, it being acknowledged and agreed that each party has reviewed and understands, and has had opportunity for its or his counsel to review, this Agreement. All Exhibits to this Agreement are attached hereto and incorporated herein by reference. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same instrument. -9- IN WITNESS WHEREOF, CRC and Merrill have executed this Agreement as of the day and year first written above. CRC: THE CITY OF CARMEL REDEVELOPMENT COMMI :•ION/ By: 1 . . illiam Hams•'esident MERRILL: BY: vi'e" ` :40....a4_ Robert 'erril -10- EXHIBIT A Depiction and/or Description of the CRC Parcel and the Merrill Parcel - a 1 Mme 7 a e ' � ' -• " ilfd- � G7• ' . ±ti!61r y v 49 a —444 )i PY g ' £.s14 y - -� ad 3NIl 3JN` N _ _.IL 4i- _ •. _ r t eitt 1 -- <4, a3 1 re es . >l_g`� 1/- i+ —'7 � t. to 'I' ` e� ) 1 r S �, ) Y Y, 2L. - 1 ' �: - r^u iu ' i t m 7 .T 1 t i A1 ' , f `) 4?-1'1 q , F t* t { F . tom" i ,- � Z :i `- �0 t�..3. cy - ,•,r,.Lrt Qi 'V —r - .e' (i ' -- 4I- 1. �, tea` -.'L.. .,i4,> L it j I .I' ll 2 a R , ,tat - �Ik 1 ( 1) b �, 1 u • d S t �r ,� 1 "-' 9 i E �.� A)_ }� f 1 ! d T,3 N' -_ � I� !fir N / � lJeU a ' y.. to :::::t-a �.�a'rl-1^u a3�..o1 $ 4.Tc`�� �tA.ws-..i t �'1Tiay` �'l,'«c�.��L Fi S P .M . y '� C i c �� 1. 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I X1 4.P?4 V y�� .0 �. �.. y15 --A-: , € ' r f,a- , --- �1�; A .- cl. a +'�'r" 1 q(� to X ' a a. 666 IVY b ' r a k( t� ` d 0 � Imoz L.�" m, . I . ,Y i 1i _ ,r > t rJ a .t.? Q .-gal a � 4, �i _ a 1, 5 i r r' yk �a.. >t j t ' S c h ( I ' -nygt e s. 3 '4 }t J 34 I 4 #'" # i n 11 II" t l � �'_ t om` < 1 } ) r. , t _ f ' t {Ii _,.o J. 4 o, -.-, *Ail t,u ._ e1 1 f t— — y ;4_, Italy ' �j` 1 rat EXHIBIT B Depiction and/or Description of Parcel 62 r 7 in U U L 0 U n Y Q Y a � F — NYON 3N1730.4Y8 'S—_ __—_____—/__—. • o / 0 O 0 I I ®I V/4 ",q7 77 L © - I cn . _ C y \ - j� 1� � ;o ! �a + - w L . - ®illy. . � CI 4_I [ii 0 5 f�- ��I 1 .Z N = _-a. 1 • I CA ... -. -'-' 10 E z i $'J 5 T r 1 e IT x a ✓ ../..,., ► + m ► C a 3� i t C m W x t- 6i W F n ® I _ 1: O ' 0 • ® 1 I i V i/f//®q + ;f \® i—I 1,- c C IS SAY 1S! • I 3 4€ ,Th 1 1 L J