Project Agreement/Baldwin Component 02/18/15 PROJECT AGREEMENT
Baldwin Component
F�bruer� This Project Agreement (Baldwin Component) (the "Agreement"), executed this day of
- e , 2015, by and among The City of Carmel Redevelopment Commission ("CRC"), Carmel City Center,
LLC ("CCC"), and CCC Phase II, LLC (the "Developer"), Witnesses: I'
Recitals
WHEREAS, CRC, CCC, and VHC have executed the Remainder Project Agreement;
WHEREAS, the Baldwin Component constitutes a"Component"to be constructed pursuant
to the Remainder Project Agreement;
WHEREAS, CRC acknowledges that CCC has conveyed the Baldwin Component Site to
Developer, which is an entity affiliated with CCC;
WHEREAS, CCC and Developer acknowledge that: (a) the Baldwin Component Site was
conveyed to Developer subject to the terms and conditions of the Remainder Project Agreement; and
(b) Developer has assumed all obligations of CCC under the Remainder Project Agreement with respect to
the Baldwin Component Site; provided that, as specified in Section 14 of the Remainder Project Agreement,
CCC has not been released from its liability to perform any or all of the terms and conditions to be performed
by it under the Remainder Project Agreement;
WHEREAS, because CCC was the owner of the Baldwin Component Site at the time that the
Remainder Project Agreement was executed,and Developer currently is the owner of the Baldwin Component
Site, CCC and Developer (as opposed to VHC) are entering into this Agreement;
WHEREAS, CRC, CCC, CCC West, LLC, and Developer have executed the Second
Component Project Agreement;
WHEREAS, the Second Component Project Agreement requires the execution of this
Agreement prior to, or contemporaneously with, the Second Component Project Agreement Closing; and
WHEREAS, CRC, CCC, and Developer have agreed to enter into this Agreement to:
(a) satisfy the obligation under the Second Component Project Agreement; and (b) more specifically refine
the requirements of the Remainder Project Agreement, as applicable to the Baldwin Component;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, CRC, CCC, and Developer agree as follows:
1. Defined Terms.
Back-Up Completion Guaranty shall mean that certain Back-Up Completion Guaranty of even date herewith
executed by Pedcor Construction Management, LLC, in favor of CRC. The Back-Up Completion Guaranty
is the "Back-Up Completion Guaranty" under the Second Component Project Agreement.
Baldwin Completion Guaranty shall mean that certain Completion Guaranty(Baldwin Component)of even
date herewith executed by Developer in favor of CRC. The Baldwin Completion Guaranty is the "Baldwin
Completion Guaranty" under the Second Component Project Agreement.
Baldwin Component shall mean a four-story building and related facilities to be constructed on the Baldwin
Component Site,which building will house residential units,retail space, restaurant space,and/or office space.
The Baldwin Component: (a) is shown on the Site Plan; and (b) is a "Component" under the Remainder
Project Agreement. The four-story building to be constructed as part of the Baldwin Component: (a) is a
"Building", and a"New Improvement", under the Remainder Project Agreement; and (b)will be in the location
generally labeled as"Baldwin"on the site plan attached to the Remainder Project Agreement Amendment as
Replacement Exhibit A and defined in the Remainder Project Agreement as the "Committed Site Plan".
Baldwin Component Construction Drawings shall mean construction drawings for the Baldwin Component,
which drawings shall be consistent with: (a) the approved Baldwin Component Design Development
Documents and Baldwin Component Construction Schedule; and (b) the Laws.
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Baldwin Component Construction Schedule shall mean a detailed schedule for construction of the Baldwin
Component in accordance with the Baldwin Component Final Plans. As provided in the Remainder Project
Agreement,such schedule shall be consistent with the Committed Construction Schedule,except to the extent
that CRC consents otherwise. Upon approval of the Baldwin Component Construction Schedule by CRC,the
Baldwin Component Construction Schedule shall control in the event of any inconsistency between the
Baldwin Component Construction Schedule and the Committed Construction Schedule.
Baldwin Component Design Development Documents shall mean detailed design development
documents for the Baldwin Component, which documents shall be consistent with the approved Baldwin
Component Schematic Design Drawings and the Laws.
Baldwin Component Final Documents and Drawings shall mean final Baldwin Component Schematic
Design Drawings, final Baldwin Component Design Development Documents, the final Baldwin Component
Construction Schedule, and the final Baldwin Component Construction Drawings, as each is: (a) approved
by CRC; and/or (b) modified by Change Orders; pursuant to the Plan Refinement Process.
Baldwin Component Final Plans shall mean the aggregated Baldwin Component Final Documents and
Drawings.
Baldwin Component Plan Schedule shall mean the schedule in accordance with which Developer shall
prepare and provide to CRC the Baldwin Component Schematic Design Drawings, the Baldwin Component
Design Development Documents, the Baldwin Component Construction Schedule, and the Baldwin
Component Construction Drawings, which schedule is attached hereto as Exhibit B. To the extent that the
Baldwin Component Plan Schedule differs from the "Plan Schedule" attached to the Remainder Project
Agreement as Replacement Exhibit C, the Baldwin Component Plan Schedule shall control.
Baldwin Component Schematic Design Drawings shall mean detailed schematic design drawings for the
Baldwin Component, which drawings shall be consistent with the Laws and the Committed Site Plan.
Baldwin Component Site shall mean that certain real estate delineated as the"Baldwin Component Site"
on the Site Plan. The Baldwin Component Site comprises a portion of the real estate defined in the
Remainder Project Agreement as the "Parcel 5 Remainder Site".
Baldwin Component Taxpayer Agreement shall mean that certain Agreement for Payment in Addition to
Taxes (Baldwin Component) of even date herewith executed by and between CRC and Developer. The
Baldwin Component Taxpayer Agreement is: (a) the "Baldwin Component Taxpayer Agreement" under the
Second Component Project Agreement; and (b) a "Taxpayer Agreement" under the Remainder Project
Agreement.
Catch-Up Plan shall mean a plan pursuant to which Developer will: (a) avoid falling further behind the dates
set forth in the Baldwin Component Plan Schedule or the Baldwin Component Construction Schedule for the
design or construction of the Baldwin Component; and (b) complete the design and construction of the
Baldwin Component in accordance with (and in no event more than 60 days behind) the date set forth in the
Baldwin Component Plan Schedule and the Baldwin Component Construction Schedule.
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Change Order shall mean a change order executed by the Executive Director and Developer finalizing the
inclusion of a change into the Baldwin Component Final Plans, which change has been: (a) proposed in a
Change Order Request by Developer; and (b) approved by CRC; provided that, in the case of a Permitted
Change, such change order shall be effective if executed only by Developer.
Change Order Request shall mean a written request for a change to the Baldwin Component Final Plans.
City shall mean the City of Carmel, Indiana.
Claims shall mean claims, liabilities, injuries, damages, losses, costs, and expenses (including, without
limitation, attorneys' fees).
Committed Construction Schedule shall mean the schedule defined in the Remainder Project Agreement
as the"Committed Construction Schedule", a copy of which is attached to the Remainder Project Agreement
Amendment as Replacement Exhibit D.
Construction Contract shall mean the contract with the General Contractor pursuant to which the Baldwin
Component shall be constructed, which contract shall be subject to the reasonable approval of CRC.
Construction Trade shall mean any trade or other discrete aspect of construction.
Corrective Action Plan shall mean, with respect to a Latent Defect: (a) a description of the corrective action
to be taken with respect to the Latent Defect; and (b) the schedule for completing such corrective action.
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: (a) commences to remedy the failure within the
30 day period; and (b) diligently pursues such remedy to completion.
Event of Default shall have the meaning set forth in Subsection 7.
Executive Director shall mean the Executive Director of CRC (currently Corrie Meyer).
Final Inspection shall mean an inspection of the Baldwin Component (or a discrete aspect thereof) after
Substantial Completion.
Force Majeure shall mean,with respect to CCC, Developer,or CRC: (a)an actor omission of the other party;
or (b) any other cause that is not within the reasonable control of CCC, Developer, 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).
General Contractor shall mean a general contractor selected by Developer and approved by CRC, which
approval shall not be withheld unreasonably.
Inspecting Architect shall mean an architect designated by CRC as its inspecting architect.
Inspection Period shall mean the period specified in an Inspection Request within which CRC and/or the
Inspecting Architect shall: (a)conduct a Sample Work Inspection, as identified in the Inspection Request; and
(b) deliver to Developer a Non-Compliance Notice, if applicable; provided that such period shall be at least
five business days after receipt of the Inspection Request from Developer.
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Inspection Request shall mean a written request from Developer for a Sample Work Inspection, which
request shall identify the Sample Work Installation to be inspected by CRC and/or the Inspecting Architect.
Latent Defect shall mean those material defects in the construction of the Baldwin Component that: (a) are
not discovered; and (b) reasonably are not discoverable; by CRC or the Inspecting Architect during an
inspection of the Baldwin Component.
Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable governmental rules,
regulations, guidelines, orders, and/or decrees.
Material Defect shall mean any item or element of the Baldwin Component(including,without limitation, any
item or component of a Sample Work Installation) that: (a) contains a material defect in workmanship or
materials; (b) deviates materially from the Baldwin Component Final Plans; or (c) has not been performed
materially in accordance with the terms and conditions of this Agreement; provided that, with respect to a
Monthly Inspection,a Permitted Inspection,or the Final Inspection, no item or element constructed or installed
in accordance with: (i) a Sample Work Installation that has been accepted, or deemed to be accepted, by
CRC; and (ii) the Laws; shall constitute a Material Defect.
Monthly Inspection shall mean an inspection conducted by the Inspecting Architect each month during
construction of the Baldwin Component,which inspection shall be of the work completed since the occurrence
of the immediately previous Monthly Inspection.
Non-Compliance Notice shall mean a written notice from CRC that identifies Material Defects discovered
by CRC or the Inspecting Architect during a Monthly Inspection, a Sample Work Inspection, a Permitted
Inspection, or the Final Inspection.
Permitted Change shall mean any change to the final Baldwin Component Construction Drawings that
constitutes a "Permitted Change" pursuant to the Remainder Project Agreement, so long as such change
does not make it unlikely, impracticable, or impossible for CRC to complete the Streetscape Work pursuant
to the Second Component Project Agreement, or any component thereof, by the applicable date set forth in
the Streetscape Work Schedule.
Permitted Inspection shall mean, as applicable, an inspection by the Inspecting Architect and/or CRC of any
item or element of the Baldwin Component when reasonably deemed to be necessary or appropriate by the
Inspecting Architect and/or CRC.
Plan Refinement Process shall mean the process set forth in Section 4 for completing the Baldwin
Component Final Plans.
Private Lender shall mean any financial institution making a Private Loan to Developer.
Private Loan shall mean a loan: (a) that is not a "Public Improvements Financing" under the Remainder
Project Agreement; and (b) the proceeds of which shall be used to construct the Baldwin Component.
Recorder's Office shall mean the Office of the Hamilton County Recorder.
Remainder Project Agreement shall mean that certain Project Agreement (Parcel 5 Remainder/Parcels
4 & 11) executed by and among CRC, CCC, and VHC and dated December 7, 2011, as amended by the
Remainder Project Agreement Amendment.
Remainder Project Ag reement Amendment shall mean that certain First Amendment to Project Agreement
(Parcel 5 Remainder/Parcels 4 & 11) dated December 15, 2014.
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Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for
construction and use of the Baldwin Component.
Restated Declaration shall mean that certain Amended and Restated Declaration of Covenants and
Easements recorded in the Recorder's Office as Instrument No. 2014038939. The Restated Declaration
supersedes in its entirety that certain:(a)Declaration of Covenants and Easements recorded in the Recorder's
Office as Instrument No. 200200025737; and (b) Cross Easement Agreement recorded in the Recorder's
Office as Instrument No. 2007058835, as amended by that certain First Amendment to Cross Easement
Agreement recorded in the Recorder's Office as Instrument No. 2013073698.
Sample Work Inspection shall mean an inspection of a Sample Work Installation.
Sample Work Installation shall mean a representative sample or typical example of a certain specified
portion of the Baldwin Component.
Second Component Project Agreement shall mean that certain Project Agreement (Second
Component/Park East/Second Component Public Improvements)by and among CRC,CCC,CCC West, LLC,
and Developer and dated December 15, 2014.
Second Component Project Agreement Closing shall mean the "Closing" under the Second Component
Project Agreement.
Site Plan shall mean the site plan attached hereto as Exhibit A.
Streetscape Work shall mean the "Streetscape Work" under the Second Component Project Agreement.
Streetscape Work Schedule shall mean the "Streetscape Work Schedule" under the Second Component
Project Agreement.
Substantial Completion shall mean that the Baldwin Component has been substantially completed in
accordance with the Baldwin Component Final Plans and the Laws.
Taxpayer Agreement Guaranty shall mean that certain Taxpayer Agreement Guaranty of even date herewith
executed by Pedcor Investments, A Limited Liability Company, in favor of CRC. The Taxpayer Agreement
Guaranty is the "Taxpayer Agreement Guaranty" under the Second Component Project Agreement.
VHC shall mean Village Housing Corporation.
2. Obligations.
(a) Execution. As contemplated by the Second Component Project Agreement,
Developer is executing this Agreement and the Baldwin Component Taxpayer Agreement
prior to, or contemporaneously with, the Second Component Project Agreement Closing.
(b) General Obligation. Subject to the terms and conditions of this Agreement,
Developer shall construct the Baldwin Component on the Baldwin Component Site.
3. Representations and Warranties. Each of CRC and CCC: (a) reaffirms the representations and
warranties made by it pursuant to Section 12 of the Remainder Project Agreement; and (b)agrees that such
representations and warranties extend, and apply with respect, to this Agreement. Developer agrees that it
shall be deemed to have made (with respect to Developer) the representations and warranties set forth in
Subsection 12(b)of the Remainder Project Agreement;accordingly,such representations and warranties shall
be deemed to be made by Developer in this Section as though such representations and warranties were set
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forth herein in full.
4. Plan Refinement.
(a) Schematics. In accordance with the Baldwin Component Plan Schedule,Developer,
at its cost and expense, shall submit the Baldwin Component Schematic Design Drawings
to CRC for its review and approval. The procedure, including the time frames, set forth in
Subsection 5(a) of the Remainder Project Agreement shall apply with respect to the review
and approval (or rejection) of the Baldwin Component Schematic Design Drawings. Upon
approval of the Baldwin Component Schematic Design Drawings, such Baldwin Component
Schematic Design Drawings shall be the final schematic design drawings for the Baldwin
Component, subject to modifications by Change Orders.
(b) Baldwin Component Design Development Documents. In accordance with the
Baldwin Component Plan Schedule, Developer, at its cost and expense, shall submit the
Baldwin Component Design Development Documents and the Baldwin Component
Construction Schedule to CRC for its review and approval. The procedure, including the time
frames, set forth in Subsection 5(b) of the Remainder Project Agreement shall apply with
respect to the review and approval (or rejection) of the Baldwin Component Design
Development Documents. Upon approval of all of the Baldwin Component Design
Development Documents with respect to any Construction Trade, such Baldwin Component
Design Development Documents shall be final as to such Construction Trade, subject to
modifications by Change Orders. Upon approval of the Baldwin Component Construction
Schedule, such Baldwin Component Construction Schedule shall be the final construction
schedule with respect to construction of the Baldwin Component, subject to modifications by
Change Orders.
(c) Baldwin Component Construction Drawings. In accordance with the Baldwin
Component Plan Schedule, Developer, at its cost and expense, shall submit to CRC for its
review the Baldwin Component Construction Drawings with respect to each Construction
Trade. Thereafter, such Baldwin Component Construction Drawings shall be final
construction drawings with respect to the applicable Construction Trade, subject to
modifications by Change Orders.
(d) Resubmitted Documents. If, at any stage of the Plan Refinement Process, CRC,
rather than approving any drawings, documents, or schedules, instead rejects any of the
foregoing, then the terms and conditions of Subsection 5(d) of the Remainder Project
Agreement shall apply with respect to revising and resubmitting such drawings, documents,
or schedules, including that, upon approval of the resubmitted drawings, documents, or
schedules, the resubmitted drawings, documents, or schedules shall become part of the
Baldwin Component Final Plans, subject to modifications by Change Orders.
Notwithstanding the involvement of CRC in the Plan Refinement Process, Developer shall
be responsible for insuring that revisions submitted by Developer to CRC in writing, and
approved by CRC, are implemented in the Baldwin Component Final Plans.
(e) Baldwin Component Final Plans. Upon completion of the Baldwin Component Final
Documents and Drawings through the Plan Refinement Process, the aggregated Baldwin
Component Final Documents and Drawings shall constitute the complete Baldwin
Component Final Plans, subject to modification by Change Orders. All references herein to
the Baldwin Component Final Plans shall be deemed to be references to the Baldwin
Component Final Documents and Drawings, until such time as all of the Baldwin Component
Final Documents and Drawings are completed; provided that, when all of the Baldwin
Component Final Documents and Drawings are completed, all references herein to the
Baldwin Component Final Plans shall be deemed to be references to the Baldwin Component
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Final Plans, as modified by Change Orders.
(f) .Changes. If Developer desires to make any changes to the Baldwin Component
Final Plans, other than a Permitted Change, then: (i) Developer shall submit to CRC a
Change Order Request for its review and approval; and (ii) the terms and conditions of
Subsection 5(f) of the Remainder Project Agreement shall apply with respect to the review
and approval (or rejection) of the change proposed in such Change Order Request. If CRC
approves a Change Order Request,then CRC and Developer shall execute a Change Order.
Notwithstanding anything to the contrary set forth herein: (i) Developer shall not be required
to obtain CRC's approval in connection with a Permitted Change; and (ii) a Change Order
with respect to a Permitted Change shall be effective if executed only by Developer; provided
that, with respect to each Permitted Change, Developer shall submit a Change Order
Request to CRC for its review.
(g) Declaration Approvals. CRC confirms its obligation pursuant to Subsection 5(g) of
the Remainder Project Agreement to vote, as Declarant under the City Center Declaration
and as owner of certain parcels within the City Center, for approval by the Architectural
Review Committee of any drawings, documents, or schedules approved by CRC pursuant
to this Section. The capitalized terms "City Center Declaration", "City Center", and
"Architectural Review Committee" are defined in the Remainder Project Agreement.
(h) Review Panel. Developer confirms the right of CRC pursuant to Subsection 5(h)of
the Remainder Project Agreement to delegate all or any part of its review and approval or
rejection obligations pursuant to this Section to the "Plan Review Panel", as defined in the
Remainder Project Agreement.
(i) Design Responsibility. Notwithstanding that CRC: (i) has review and approval rights
in connection with the Plan Refinement Process; and (ii) otherwise may participate in the
Plan Refinement Process (including that CRC may hire consultants or other professionals
in connection therewith); Developer shall be responsible for the design and engineering of
the Baldwin Component, and, as between CRC and Developer, Developer assumes
responsibility for defects and deficiencies in the design and engineering of the Baldwin
Component(including,without limitation,defects in the Baldwin Component Final Documents
and Drawings); provided that, nothing in this Subsection shall be deemed to prohibit
Developer from proceeding against any of the engineers, architects, or other consultants in
the event of any design or engineering defects or deficiencies.
(j) Construction. Developer shall construct the Baldwin Component: (i) in a good and
workmanlike manner;(ii)in accordance with the Baldwin Component Final Plans(as modified
by any Change Orders); and (iii) in compliance with the Laws; provided that, prior to
commencing construction of the Baldwin Component, Developer: (i)at its cost and expense,
shall obtain and submit to CRC for its review the Required Permits; and (ii) shall provide the
Construction Contract to CRC for its review and approval, which approval shall not be
withheld unreasonably.
(k) Ownership. Upon completion thereof, Developer(as opposed to CRC, the City, or
any agency or instrumentality of the City) shall be the owner of the Baldwin Component Site
and the Baldwin Component; provided that, if and to the extent that the Baldwin Component
includes roadways that serve more than just the Baldwin Component Site, then, upon
completion of such roadways, and as contemplated pursuant to the Restated Declaration,
such roadways will be dedicated as public roadways, either through a grant of right-of-way
easement or by conveyance of fee title. In connection with any such dedication, CRC shall
agree to assume responsibility for maintenance of such roadway in accordance with the
terms and conditions of the Restated Declaration.
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(I) Assessment. As provided in Subsection 4(f) of the Remainder Project Agreement,
Developer shall be responsible for ensuring that the Baldwin Component is fully assessed
for property tax purposes on or before the applicable date set forth in the Baldwin Component
Construction Schedule.
5. Inspection.
(a) Monthly Inspections. Each month during construction of the Baldwin Component,
the Inspecting Architect, at Developer's cost and expense, shall conduct a Monthly
Inspection; provided that the Inspecting Architect shall provide reasonable written notice to
Developer prior to each Monthly Inspection. After a Monthly Inspection, CRC may deliver to
Developer a Non-Compliance Notice; provided that, upon receipt of a Non-Compliance
Notice, Developer shall correct, or cause to be corrected, as soon as is practicable, all
Material Defects identified in the Non-Compliance Notice, except and to the extent that any
such Material Defects previously have been accepted, or deemed to have been accepted,
by CRC. Upon receipt of written demand, Developer shall pay the Inspecting Architect's fee
for each Monthly Inspection. At Developer's election, the Inspecting Architect shall:
(i)schedule the Monthly Inspections to coordinate with draw requests submitted by Developer
to any Private Lender that is identified to CRC; and (ii) provide to Developer and/or any
Private Lender (to the extent that an address therefor is provided to CRC) an inspection
report with respect to Monthly Inspection.
(b) Sample Work Inspection. If Developer delivers an Inspection Request to CRC,then,
within the Inspection Period, CRC and/or the Inspecting Architect, at Developer's cost and
expense, shall: (i) conduct a Sample Work Inspection of the Sample Work Installation
identified in the Inspection Request; and (ii) deliver to Developer, if applicable, a
Non-Compliance Notice; provided that: (i) upon receipt of a Non-Compliance Notice with
respect to such Sample Work Installation, Developer shall correct, or cause to be corrected,
as soon as is practicable, all Material Defects identified in the Non-Compliance Notice,
except and to the extent that any such Material Defects previously have been accepted, or
deemed to have been accepted, by CRC; and (ii) all items or components of such Sample
Work installation with respect to which no Material Defects are identified in a
Non-Compliance Notice shall be deemed to be accepted by CRC. Any portion of the Baldwin
Component subsequently constructed or installed in accordance with: (i) a Sample Work
Installation that has been accepted, or deemed to be accepted, by CRC; and (ii) the Laws;
shall be deemed to be accepted by CRC.
(c) Permitted Inspection. Upon reasonable written notice delivered to Developer,which
notice shall specify the portion of the construction to be inspected, CRC and/or the Inspecting
Architect may perform a Permitted Inspection. After a Permitted Inspection,CRC may deliver
to Developer a Non-Compliance Notice; provided that, upon receipt of a Non-Compliance
Notice, Developer shall correct, or cause to be corrected, as soon as is practicable, all
Material Defects identified in the Non-Compliance Notice, except and to the extent that any
such Material Defects previously have been accepted, or deemed to have been accepted,
by CRC.
(d) Final Inspection. If Developer delivers to CRC a written request for a Final
Inspection, then, on or before the later of the date that is five business days after (i) receipt
by CRC of such request; or (ii) the date specified in such request as the date of Substantial
Completion; CRC and/or the Inspecting Architect, at Developer's cost and expense, shall:
(i)conduct the Final Inspection; and(ii)deliver to Developer, if applicable, a Non-Compliance
Notice; provided that: (A) upon receipt of a Non-Compliance Notice, Developer shall correct,
or cause to be corrected, as soon as is practicable, all Material Defects identified in the
Non-Compliance Notice, except and to the extent that any such Material Defects previously
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have been accepted, or deemed to have been accepted, by CRC; and (B) all items or
components of the Baldwin Component with respect to which no Material Defects are
identified in a Non-Compliance Notice shall be deemed to be accepted by CRC. Upon:
(i) correction of all Material Defects identified in the Non-Compliance Notice; or(ii) deemed
acceptance by CRC of the Baldwin Component; CRC shall have no further inspection rights
with respect to the construction of the Baldwin Component. In connection with the Final
Inspection, CRC and Developer shall agree on the final"punch-list", a copy of which shall be
provided to CRC. Developer shall complete all of the items on the"punch-list"within 45 days
after the date on which CRC and Developer agree on the final "punch-list".
(e) Latent Defects.
(i) Notwithstanding anything to the contrary set forth herein, no
acceptance, or deemed acceptance, by CRC pursuant to this Section shall
be applicable with respect to any Latent Defect, and Developer shall be
obligated, at its expense, to correct any Latent Defects that are discovered.
(ii) If, at any time after the Final Inspection, either CRC or Developer
discovers a Latent Defect, then CRC or Developer, as applicable, promptly
shall notify the other party in writing of the existence of such Latent Defect.
Promptly after delivering or receiving such notice, as applicable, and in all
events within 30 days thereafter, Developer shall prepare, and submit to
CRC for its approval, a Corrective Action Plan.
(iii) Within ten days after CRC receives the Corrective Action Plan,CRC
shall deliver to Developer written notice that it approves or rejects the
Corrective Action Plan; provided that:(A)CRC shall not withhold its approval
unreasonably; and (B) if CRC rejects all or any part of the Corrective Action
Plan, then such notice shall: (1) specify the part or parts that CRC is
rejecting; and (2) include the specific basis for such rejection.
(iv) If CRC reasonably rejects all or any part of the Corrective Action
Plan, then, within ten days after Developer receives notice from CRC of
such rejection, Developer shall: (A) revise the Corrective Action Plan; and
(B) resubmit the Corrective Action Plan to CRC. Within ten days after CRC
receives the resubmitted Corrective Action Plan, CRC shall deliver to
Developer written notice that it approves or rejects the resubmitted
Corrective Action Plan; provided that:(A)CRC shall not withhold its approval
unreasonably; and (B) if CRC rejects all or any part of the Corrective Action
Plan, then such notice shall: (1) specify the part or parts that CRC is
rejecting; and (2)include the specific basis for such rejection. This process
shall continue until CRC has approved the Corrective Action Plan.
(v) Developer shall be obligated to carry out the approved Corrective
Action Plan in accordance with the schedule that is a part of such approved
Correction Action Plan.
(f) General.
(i) In the case of an inspection by CRC and/or the Inspecting Architect
pursuant to this Section, CRC and/or the Inspecting Architect shall:
(A)comply with all health and safety rules of which CRC has been informed
that have been established for personnel present on the construction site;
and (B) coordinate the inspections so that the inspections do not interfere
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with the performance of construction by Developer. Developer shall have
the right to accompany, and/or to have its construction manager
accompany, CRC and/or its Inspecting Architect during any inspection
pursuant to this Section.
(ii) An acceptance, or deemed acceptance, by CRC pursuant to this
Section shall not mean that CRC has accepted, or Developer has been
relieved of, responsibility for: (A) compliance with the Laws; (B) the proper
application of construction means or methods; or(C)correcting any portion
of the Baldwin Component if it later is determined that such portion is
inconsistent with the proper completion of a subsequent portion of the
Baldwin Component.
(ii) An acceptance, or deemed acceptance, by CRC pursuant to this
Section shall not be binding on any other governmental authority, and any
inspections performed by CRC or the Inspecting Architect pursuant to this
Section shall not preclude,or be deemed to be in substitution of, inspections
required or permitted to be performed by other governmental authorities.
(g) Copies. As required by the Remainder Project Agreement, Developer shall:
(i) deliver promptly to CRC's counsel copies of all draw requests delivered to any Private
Lender; and (ii) cause the Private Lender to deliver to CRC's counsel, promptly upon receipt
thereof, copies of inspection reports obtained by such Private Lender. All draw requests and
inspection reports received by CRC's counsel pursuant to this Subsection shall be subject
to the attorney/client privilege between CRC's counsel and CRC.
6. Insurance. During construction of the Baldwin Component, Developer shall maintain the policies of
insurance required pursuant to Section 8 of the Remainder Project Agreement,which policies shall satisfy the
requirements of such Section. Developer shall deliver to CRC certificates of the required insurance policies,
executed by the insurance company or the general agency writing such policies.
7. 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: (i) with
respect to the obligation to pay money, if such failure is not cured within ten days after such
payment is due; and (ii)with respect to any other 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)collect any payments
due under this Agreement; (ii)protect the rights granted to the non-defaulting party under this
Agreement; (Hi) 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, it being acknowledged and understood by the parties that
monetary damages are not an adequate remedy for the failure of either party to observe
and/or perform any term or condition of this Agreement); or(iv) 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 12% per annum.
Z ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\i3aldwin 22.1ui 15
ConiponentAProject Agreement\Pro ect Agreement-13aldwin.e2.wpd -1 0-
(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 (for example, as stated in Section 8 or Section 9); 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.
8. Recapture by CRC.
(a) Recapture Right. If construction of the Baldwin Component has not commenced as
of the date that is 18 months after the date specified in the approved Baldwin Component
Construction Schedule, then the terms and conditions of Subsection 10(a)of the Remainder
Project Agreement shall apply; provided that all references to a portion of the"Project Site"
and/or a "Component" shall be deemed to be references to the Baldwin Component Site
and/or the Baldwin Component, respectively. If CRC exercises its right to require
reconveyance of the Baldwin Component Site to CRC pursuant to Subsection 10(a) of the
Remainder Project Agreement, then: (i) at the time that the Baldwin Component Site is
reconveyed to CRC, and in addition to the automatic termination of the Remainder Project
Agreement with respect to the Baldwin Component Site, each of: (A)this Agreement; (B)the
Baldwin Completion Guaranty; and (C) to the extent applicable to the Baldwin Component,
the Back-Up Completion Guaranty; automatically shall terminate and be of no further force
or effect; and (ii) neither CCC nor Developer shall have any further rights hereunder with
respect to the Baldwin Component Site.
(b) Sole Remedy. Notwithstanding anything to the contrary set forth herein, the rights
set forth in this Section (including, by incorporation, the rights set forth in Subsection 10(a)
of the Remainder Project Agreement), the Baldwin Component Taxpayer Agreement, the
Taxpayer Agreement Guaranty, the Baldwin Completion Guaranty, and/or the Back-Up
Completion.Guaranty shall be the sole remedies available to CRC for the failures and/or
delays specified in this Section; provided that: (i) if CRC exercises its right to require
reconveyance of the Baldwin Component Site in accordance with the terms and conditions
of this Section, then, at the time that the Baldwin Component Site is reconveyed to CRC,
each of: (A)the Baldwin Completion Guaranty;and(B)to the extent applicable to the Baldwin
Component, the Back-Up Completion Guaranty; automatically shall terminate and be of no
further force or effect; and (ii) CRC shall have: (A) the remedies of specific performance
and/or injunction to ensure compliance with the terms and conditions of this Section; and
(B) the right to recover all costs and expenses incurred in connection with exercising the
remedies permitted pursuant to this Section.
(c) Reconveyance Closing. If CRC elects to require the reconveyance of the Baldwin
Component Site in accordance with the terms and conditions of this Section, then the terms
and conditions of Subsection 10(c) of the Remainder Project Agreement shall apply.
9. Construction Delay.
(a) Catch-Up Plans. If Developer falls 60 or more days behind the applicable dates set
forth in the Baldwin Component Plan Schedule or the Baldwin Component Construction
Schedule for the design or construction of the Baldwin Component, then the terms and
conditions of Subsection 11(a)of the Remainder Project Agreement shall apply; provided that
/..:vDocumaus\Shoup,JennyACity of Carmel\Parcel 5\Baldwin 22.1an15
Component\Project AgreementAProject Agreement-I3aidwin.v2.wpd -I 1-
all references to a "Component" and/or a "Component Catch-Up Plan" shall be deemed to
be references to the Baldwin Component and/or a Catch-Up Plan, respectively.
(b) Costs. Developer shall be responsible for all costs and expenses to prepare and
implement a Catch-Up Plan (including costs and expenses incurred by CRC pursuant to this
Section).
(c) Sole Remedy. Notwithstanding anything to the contrary set forth herein, the rights
set forth in this Section (including, by incorporation, the rights set forth in Subsection 11(a)
of the Remainder Project Agreement), the Baldwin Component Taxpayer Agreement, the
Taxpayer Agreement Guaranty, the Baldwin Completion Guaranty, and/or the Back-Up
Completion Guaranty shall be the sole remedies available to CRC for the failures and/or
delays specified in this Section; provided that CRC shall have: (i) the remedies of specific
performance and/or injunction to ensure compliance with the terms and conditions of this
Section; and (ii) the right to recover all costs and expenses incurred in connection with
exercising the remedies permitted pursuant to this Section.
10. Mutual Indemnification. Each of CRC and CCC: (a) reaffirms its indemnification obligations
pursuant to Section 13 of the Remainder Project Agreement; and (b) agrees that such indemnification
obligations extend, and apply with respect, to this Agreement. Developer agrees that it shall be deemed to
have incurred the indemnification obligations set forth in Subsection 13(b) of the Remainder Project
Agreement; accordingly, such indemnification obligations shall be deemed to be undertaken by Developer in
this Section as though such indemnification obligations were set forth herein in full. Notwithstanding anything
to the contrary set forth herein, the obligations of the parties under Section 13 of the Remainder Project
Agreement(and, accordingly, this Section)shall survive the termination of the Remainder Project Agreement
and this Agreement.
11. Assignment. The terms and conditions of Section 14 of the Remainder Project Agreement shall
apply with respect to the assignment of this Agreement.
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; or(b) sent
by national overnight delivery service, with confirmation of receipt, addressed as follows: to CRC at 30 West
Main Street, Suite 220, Carmel, Indiana 46032, Attn: Corrie Meyer, with a copy to: Jennifer R. Shoup, Esq.,
Wallack Somers& Haas, PC, One Indiana Square, Suite 2300, Indianapolis, Indiana 46204; and to CCC and
Developer at 770 3rd Avenue Southwest, Carmel, Indiana 46032, Attn: Ron Brown. Either party may change
its address for notice from time to time.
13. Authority. Each undersigned person executing this Agreement on behalf of CRC, CCC, and
Developer represents and certifies that: (a)he or she is empowered,and has been authorized by all necessary
action of CRC, CCC, and Developer, respectively, to execute and deliver this Agreement; (b) he or she has
full capacity, power, and authority to enter into and carry out this Agreement; (c)the execution, delivery, and
performance of this Agreement have been authorized by CRC,CCC,and Developer, respectively;and(d)this
Agreement is the valid and binding obligation of CRC, CCC, and Developer, respectively, that, subject to the
Laws, is enforceable in accordance with its terms.
14. 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.
Z:ADocuments\Shoup,JennyVCity or Carmel\Parcel 5\I3aldwin 22Jan 15
ComponentAProject AgreementAProject Agreement-13aidhvin.'2.wpd -1 2
15. Miscellaneous. Subject to Section 11 (and Section 14 of the Remainder Project Agreement), this
Agreement shall inure to the benefit of, and be binding upon, CRC, CCC, and Developer, and their respective
successors and assigns. This Agreement: (a)may be executed in separate counterparts, each of which shall
be an original, but all of which together shall constitute a single instrument; (b) shall be governed by, and
construed in accordance with, the laws of the State of Indiana; and (c) may be modified only by a written
agreement signed by all of CRC, CCC, and Developer. 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. All Exhibits referenced in this Agreement are attached hereto
and incorporated herein by reference. All proceedings arising in connection with this Agreement shall be tried
and litigated only in the state courts in Hamilton County, Indiana, or the federal courts with venue that includes
Hamilton County, Indiana. CCC and Developer waive, to the extent permitted under applicable law: (a) the
right to a trial by jury; and (b) any right CCC or Developer may have to: (i) assert the doctrine of"forum non
conveniens"; or (ii) object to venue.
IN WITNESS WHEREOF, CRC, CCC, and Developer have executed this Agreement as of
the date set forth above.
THE CITY 0 CARMEL
REDE E O'MENT •O MISSION
BY: L
Wil am-Hamm-47r:sid nt
By:OSn AN
C , f,
Printed: D&U(d 6 60 ers
Title: Vi(@ Pre5i �e
CARMEL CITY C NTE' ' LC
By: iC
Printed: �/' ace, ,4 4(i)7,
Title: C e1e, t- C
CCC PHA II,
By:
Printed:Ara GPI A C"o i /�j
Title: ✓�
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INDEX TO EXHIBITS
Exhibit A Site Plan - shows Baldwin Component Site
Exhibit B Baldwin Component Plan Schedule (schedule in accordance with which CCC
submits Baldwin Component Design Development Documents,Baldwin Component
Construction Schedule, and Baldwin Component Construction Drawings)
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