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Project Agreement/Eastern Motor Court Component 02/18/15 PROJECT AGREEMENT Eastern Motor Court Component �eVrufa This Project Agreement(Eastern Motor Court Component)(the"Agreement"), executed this 1R day of icy, 2015, by and among The City of Carmel Redevelopment Commission ("CRC"), Carmel City Center, LLC ("CCC"), and CCC West, LLC, and CCC Phase II, LLC (jointly and severally, the "Developer"), Witnesses: Recitals WHEREAS, CRC, CCC, and VHC have executed the Remainder Project Agreement; WHEREAS, the Eastern Motor Court Component constitutes a "Component" to be constructed pursuant to the Remainder Project Agreement; WHEREAS, CRC acknowledges that CCC has conveyed the Eastern Motor Court Component Site to Developer, which is an entity affiliated with CCC; WHEREAS, CCC and Developer acknowledge that: (a)the Eastern Motor Court 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 Eastern Motor Court 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 perfcrmed by it under the Remainder Project Agreement; WHEREAS, because CCC was the owner of the Eastern Motor Court Component Site at the time that the Remainder Project Agreement was executed, and Developer currently is the owner of the Eastern Motor Court Component Site, CCC and Developer (as opposed to VHC) are entering into this Agreement; WHEREAS, CRC, CCC, 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 Eastern Motor Court 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. Catch-Up Plan shall mean a plan pursuant to which Developer will: (a) avoid falling further behind the dates set forth in the Plan Schedule or the Construction Schedule for the design or construction of the Eastern Motor Court Component; and (b) complete the design and construction of the Eastern Motor Court Component in accordance with (and in no event more than 60 days behind)the date set forth in the Plan Schedule and the Construction Schedule. Change Order shall mean a change order executed by the Executive Director and Developer finalizing the inclusion of a change into the Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court Component shall be constructed, which contract shall be subject to the reasonable approval of CRC. Construction Drawings shall mean construction drawings for the Eastern Motor Court Component, which drawings shall be consistent with: (a) the approved Design Development Documents and Construction Schedule; and (b) the Laws. Construction Schedule shall mean a detailed schedule for construction of the Eastern Motor Court Component in accordance with the Eastern Motor Court 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 Construction Schedule by CRC,the Construction Schedule shall control in the event of any inconsistency between the Construction Schedule and the Committed Construction Schedule. 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. Design Development Documents shall mean detailed design development documents for the Eastern Motor Court Component, which documents shall be consistent with the approved Schematic Design Drawings and the Laws. Eastern Motor Court Completion Guaranty shall mean that certain Completion Guaranty (Eastern Motor Court) of even date herewith executed by Developer in favor of CRC. The Eastern Motor Court Completion Guaranty is the "Eastern Motor Court Completion Guaranty" under the Second Component Project Agreement. Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\Eastern Motor 22Jan15 Court Component\Project AgreementAProject Agreement-EMC.v2.wpd -2- Eastern Motor Court Component shall mean a building comprised of approximately: (a)45,500 square feet of office and/or retail space; and (b) 30,800 square feet of residential space; together with related improvements, to be constructed on the Eastern Motor Court Component Site. The Eastern Motor Court 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 Eastern Motor Court Component: (a) is a "Building", and a"New Improvement", under the Remainder Project Agreement; and (b)will be in the location generally labeled as "Eastern Motorcourt Site" 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". Eastern Motor Court Component Final Plans shall mean the aggregated Final Documents and Drawings. Eastern Motor Court Component Site shall mean that certain real estate delineated as the"Eastern Motor Court Component Site"on the Site Plan. The Eastern Motor Court Component Site comprises a portion of the real estate defined in the Remainder Project Agreement as the "Parcel 5 Remainder Site". Eastern Motor Court Component Taxpayer Agreement shall mean that certain Agreement for Payment in Addition to Taxes(Eastern Motor Court Component)of even date herewith executed by and between CRC and Developer. The Eastern Motor Court Component Taxpayer Agreement is: (a)the"Eastern Motor Court Component Taxpayer Agreement" under the Second Component Project Agreement; and (b) a "Taxpayer Agreement" under the Remainder Project Agreement. 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 Documents and Drawings shall mean final Schematic Design Drawings, final Design Development Documents, the final Construction Schedule, and the final Construction Drawings, as each is: (a) approved by CRC; and/or(b) modified by Change Orders; pursuant to the Plan Refinement Process. Final Inspection shall mean an inspection of the Eastern Motor Court Component (or a discrete aspect thereof) after Substantial Completion. Force Majeure shall mean,with respect to CCC, Developer,or CRC: (a)an act or 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. 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 Eastern Motor Court Component that: (a) are not discovered: and (b) reasonably are not discoverable; by CRC or the Inspecting Architect Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\Eastern Motor 22Jan15 Court Component\Project Agreement\Project Agreement-EMC.v2.wpd -3- during an inspection of the Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court 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 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 Eastern Motor Court 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 Eastern Motor Court Component Final Plans. Plan Schedule shall mean the schedule in accordance with which Developer shall prepare and provide to CRC the Schematic Design Drawings,the Design Development Documents,the Construction Schedule, and the Construction Drawings, which schedule is attached hereto as Exhibit B. To the extent that the Plan Schedule differs from the ''Plan Schedule" attached to the Remainder Project Agreement as Replacement Exhibit C, the Plan Schedule shall control. 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 Eastern Motor Court 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 Agreement Amendment shall mean that certain First Amendment to Project Agreement Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\Eastern Motor 22Jan15 Court ComponentAProject Agreement\Project Agreement-EMC.v2.wpd -4- (Parcel 5 Remainder/Parcels 4 & 11) dated December 15, 2014. Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for construction and use of the Eastern Motor Court 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 Eastern Motor Court Component. Schematic Design Drawings shall mean detailed schematic design drawings for the Eastern Motor Court Component, which drawings shall be consistent with the Laws and the Committed Site Plan. Second Component Project Agreement shall mean that certain Project Agreement (Second Component/Park East/SC Public Improvements) by and among CRC, CCC, 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 Eastern Motor Court Component has been substantially completed in accordance with the Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court Component on the Eastern Motor Court Component Site. Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\Eastern Motor 22.1an15 Court ComponentAProject Agreement\Project Agreement-EMC.v2.wpd -5- 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 forth herein in full. 4. Plan Refinement. (a) Schematics. In accordance with the Plan Schedule, Developer, at its cost and expense, shall submit the 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 Schematic Design Drawings. Upon approval of the Schematic Design Drawings, such Schematic Design Drawings shall be the final schematic design drawings for the Eastern Motor Court Component. subject to modifications by Change Orders. (b) Design Development Documents. In accordance with the Plan Schedule,Developer, at its cost and expense, shall submit the Design Development Documents and the 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 Design Development Documents. Upon approval of all of the Design Development Documents with respect to any Construction Trade. such Design Development Documents shall be final as to such Construction Trade, subject to modifications by Change Orders. Upon approval of the Construction Schedule, such Construction Schedule shall be the final construction schedule with respect to construction of the Eastern Motor Court Component, subject to modifications by Change Orders. (c) Construction Drawings. In accordance with the Plan Schedule, Developer,at its cost and expense, shall submit to CRC for its review the Construction Drawings with respect to each Construction Trade. Thereafter,such 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 Eastern Motor Court 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 Eastern Motor Court Component Final Plans. (e) Eastern Motor Court Component Final Plans. Upon completion of the Final Documents and Drawings through the Plan Refinement Process, the aggregated Final Documents and Drawings shall constitute the complete Eastern Motor Court Component Final Plans, subject to modification by Change Orders. All references herein to the Eastern Motor Court Component Final Plans shall be deemed to be references to the Final Documents and Drawings, until such time as all of the Final Documents and Drawings are completed; provided that, when all of the Final Documents and Drawings are completed, all Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\Eastern Motor 22.Ian I5 Court Cornponent\Project Agreement\Project Agreement-EMC.v2 wpd -6- references herein to the Eastern Motor Court Component Final Plans shall be deemed to be references to the Eastern Motor Court Component Final Plans, as modified by Change Orders. (f) Changes. If Developer desires to make any changes to the Eastern Motor Court 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 Eastern Motor Court Component, and, as between CRC and Developer, Developer assumes responsibility for defects and deficiencies in the design and engineering of the Eastern Motor Court Component(including,without limitation,defects in the 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 Eastern Motor Court Component: (i) in a good and workmanlike manner;(ii)in accordance with the Eastern Motor Court Component Final Plans (as modified by any Change Orders); and (Hi) in compliance with the Laws; provided that, prior to commencing construction of the Eastern Motor Court 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 Eastern Motor Court Component Site and the Eastern Motor Court Component; provided that, if and to the extent that the Eastern Motor Court Component includes roadways that serve more than just the Eastern Motor Court 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 Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\Eastern Motor 22Jan 15 Court Component\Project AgreementAProject Agreement-EMC.v2.wpd -7- 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. (I) Assessment. As provided in Subsection 4(f) of the Remainder Project Agreement, Developer shall be responsible for ensuring that the Eastern Motor Court Component is fully assessed for property tax purposes on or before the applicable date set forth in the Construction Schedule. 5. Inspection. (a) Monthly Inspections. Each month during construction of the Eastern Motor Court 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 Eastern Motor Court 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. Aftera 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: Z:ADocuments\Shoup,Jenny\City of CarmelAParcel 5\Eastern Motor 22Jan 15 Court Component\Project Agreement\Proiect Agreement-EMC.v2.wpd -8- (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 have been accepted, or deemed to have been accepted, by CRC; and (B) all items or components of the Eastern Motor Court 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 Eastern Motor Court Component; CRC shall have no further inspection rights with respect to the construction of the Eastern Motor Court 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. Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\Eastern Motor 22Jan 15 Court Component\Project Agreement\Project Agreement-EMC.v2.wpd -9- (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 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 Eastern Motor Court Component if it later is determined that such portion is inconsistent with the proper completion of a subsequent portion of the Eastern Motor Court 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 Eastern Motor Court 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 (H)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;(H)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 Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5AEastern Motor 22Jan15 Court Component\Project Agreement\Project Agreement-EMCv2.wpd -10- 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. (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 Eastern Motor Court Component has not commenced as of the date that is 18 months after the date specified in the approved Eastern Motor Court 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 Eastern Motor Court Component Site and/or the Eastern Motor Court Component, respectively. If CRC exercises its right to require reconveyance of the Eastern Motor Court Component Site to CRC pursuant to Subsection 10(a)of the Remainder Project Agreement, then: (i) at the time that the Eastern Motor Court Component Site is reconveyed to CRC, and in addition to the automatic termination of the Remainder Project Agreement with respect to the Eastern Motor Court Component Site,each of: (A)this Agreement; (B)the Eastern Motor Court Completion Guaranty; and (C) to the extent applicable to the Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court Component Taxpayer Agreement, the Taxpayer Agreement Guaranty, the Eastern Motor Court 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 Eastern Motor Court Component Site in accordance with the terms and conditions of this Section, then, at the time that the Eastern Motor Court Component Site is reconveyed to CRC, each of: (A) the Eastern Motor Court Completion Guaranty; and (B) to the extent applicable to the Eastern Motor Court 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 Eastern Motor Court Component Site in accordance with the terms and conditions of this Section, Z:ADocuments\Shoup,JennvACity of Carmel\Parcel 5\Eastern Motor 22Jan 15 Court Component\Project Agreement\Project Agreement-EMC.v2.wpd -1 1- 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 Plan Schedule or the Construction Schedule for the design or construction of the Eastern Motor Court Component, then the terms and conditions of Subsection 11(a) of the Remainder Project Agreement shall apply; provided that all references to a "Component" and/or a"Component Catch-Up Plan"shall be deemed to be references to the Eastern Motor Court 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 Eastern Motor Court Component Taxpayer Agreement, the Taxpayer Agreement Guaranty, the Eastern Motor Court 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 Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 5\Eastern Motor 22Jan 15 Court Component\Project Agreement\Project Agreement-EMC.v2.wpd -12- 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. 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. Z:A Documents\Shoup,JennyACity of Carrel\Parcel 5\Eastern Motor .. 22Jan i 5 Court Component\Project Agreement\Project Agreement-EMC.v2.wpd -13- IN WITNESS WHEREOF, CRC, CCC, and Developer have executed this Agreement as of the date set forth above. I THE CITY OF CARMEL REDS E le r ENT CI MISSION r i By •L_4 EA Llibritta 4 A9/ William Hammer, P es •e. t By Printed: Okvj rl C (30 veers Title: Vi(e rtes;J e/tl" CARM ITY CENT , LLC By: C Printed: get(CC-A Col1.nq ICN Title: l(et;dente' -4 CE 0 CCC W T, LLC By: C Printed: gCuCe ,' Cord%� hj) Title: /arer de,--t- 'f' CEO CCC PH E II, C By: Printed: l7 e "Ce A Coo cG/; q is Title: f`CJ; d Cn-" ¢ C O Z.ADocuments\Shoup.Jenny\City of Carmel\Parcel 5\Eastern Motor 22.1an I5 Court ComponentAProject Agreement\Project Agreement-EMC.v2.wpd -14- INDEX TO EXHIBITS Exhibit A Site Plan - shows Eastern Motor Court Component Site Exhibit B Plan Schedule (schedule in accordance with which CCC submits Design Development Documents, Construction Schedule, and Construction Drawings) Z:ADocuments\Shoup,JennvACity ofCarrnel\Parcel 5\Eastern Motor 22.1an15 Court ComponentAProject AgreementAProject Agreement-EMC.v2.wpd -15- • Xpn� EXHIBIT . _ r };� 4LCARMELCITYCENTE ;� /V '. -...IMMO , a 1A * ''� .4'%4 'c' ' vii.`'*' -. ;';i T"°— ,� a ,� F 5 ax. ;. - -_...i-.._7 r ® 1 -a O- _ �;as \. . ����I Si18061lgonel *z• iG\ ��_ .rs s "` i o an❑ > Via'"'. 191:::.g../.-��' 3i `` �■ _ t>+ � �.. - WEDGWOOD 't lkl I a ,P ,R ,a;+e' q fQ.,`� A y,; p GAINSBOROUGM CR /•� c�»;y, hy�•t PEDCOR 54 .''i;:Yr •v•flea 2v �, P A.,. 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' I- 'I ..,..1' M't;-',61441.:`Ltco.i'l.s:E.Ruc.T1.79l"IY10+1WIik7.17,4-Mearktit'.',W4r ©' ' *` "`"- (CI I'',`II-,;":I'.7'---'-'- '',..-'‘,,:/:,,•-•:-.et"..z.‘.-.',"',,‘,.,;(„,.. ..1',.-...,:%:"7/.",-.:'•-',..-'-,:1---- Replacement Exhibits C & D ' "1,;;VI"'''' '''' 7*-., ---,i.,i.,_„ ,.-,.. ,,,,...-,„„.,,,,.,.,,,,,,,.,,,-., Revised Plan Schedule ;''`` „, ..,,,,-,,i-.... ,..,, Revised Committed Construction V',",:ne..-7"%c*:-.".1,-.L"...;;;,-,1 ' - '— Schedule