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Project Agreement/Office Bldg 02-18-15 PROJECT AGREEMENT Office Building brw�( This Project Agreement (Office Building) (the "Agreement"), executed this 1I day of 2015, by and between The City of Carmel Redevelopment Commission ("CRC")and Pedcor Office, LLC (the "Developer"), Witnesses: Recitals WHEREAS, CRC and Pedcor Investments have executed the Original Project Agreement; WHEREAS, Developer is successor in interest to Pedcor Investments; WHEREAS, as of the date hereof Developer is the owner of the Office Building Site, which is a portion of what is the "Phase III Site" under the Original Project Agreement; WHEREAS, due to the passage of time and the occurrence of unforeseen circumstances, the terms and conditions of the Original Project Agreement no longer reflect the current agreement of the parties with respect to the Office Building Site; WHEREAS, Developer is a party to the Transaction Agreement; WHEREAS,as reflected in the Transaction Agreement, CRC,CCC,and VHC have executed the Remainder Project Agreement; WHEREAS, all capitalized terms in these Recitals that are italicized shall have the meanings ascribed to such terms in the Remainder Project Agreement; WHEREAS, the Office Building Site, and the Office Building, do not constitute a Component under the Remainder Project Agreement, but the Remainder Project Agreement contemplates the construction of Public Improvements on Parcel 5 that are financed with Public Improvements Financing, the debt service with respect to which may be paid, in part, with New Improvements Increment generated as a result of New Improvements constructed on the Office Building Site; WHEREAS, the Office Building,when constructed, will constitute a New Improvement, and, as such, will generate New Improvements Increment; WHEREAS, pursuant to the Second Component Project Agreement, the City is issuing the Bonds, the proceeds of which shall be used to construct Public Improvements on Parcel 5; WHEREAS, the issuance of the Bonds constitutes a Public Improvements Financing; WHEREAS, a portion of the debt service with respect to the Bonds will be paid with the new Improvements Increment generated as a result of the construction of the Office Building; 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, the parties have agreed: (a) to enter into this Agreement; and (b) that this Agreement will supersede and replace the Original Project Agreement, to the extent that the Original Project Agreement applies to the Office Building Site; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, CRC and Developer agree as follows: Architectural Review Committee shall have the meaning set forth in the City Center Declaration. 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. Bonds shall mean tax increment financing bonds to be issued by the City. Catch-Up Plan shall mean a plan pursuant to which Developer will: (a) avoid falling further behind the dates set forth in the Office Building Plan Schedule or the Office Building Construction Schedule for the design or construction of the Office Building; and (b) complete the design and construction of the Office Building in accordance with (and in no event more than 60 days behind) the date set forth in the Office Building Plan Schedule and the Office Building Construction Schedule. CCC shall mean Carmel City Center, LLC. Change Order shall mean a change order executed by the Executive Director and Developer finalizing the inclusion of a change into the Office Building 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 Office Building Final Plans. City shall mean the City of Carmel, Indiana. City Center Declaration shall mean that certain Declaration of Covenants and Easements recorded as Instrument No. 2000000058577 in the Office of the Hamilton County Recorder, as modified by that certain: (a) Confirmation (Kestner Site is part of the "Retail Parcel") recorded in the Office of the Hamilton County Recorder as Instrument Number 200200025755; (b) Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number 200100061268; (c) Second Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number 00300059243; (d) Third Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number 200300110032; (e) Fourth Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number 200500072979; and (e) Fifth Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number 2008024091. 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 Office Building shall be constructed, which contract shall be subject to the reasonable approval of CRC. Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 2-Otlice and Retail 21Jan15 Redevelopment-including corner parcel\Office 13uilding 5\Project AgreementAProject Agreement-Oflice Building.v2.wpd �- 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 Office Building (or a discrete aspect thereof) after Substantial Completion. Force Majeure shall mean, with respect to CRC or Developer: (a) an act or omission of the other party; or (b) any other cause that is not within the reasonable control of CRC or Developer, 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 Office Building that: (a) are not discovered; and (b) reasonably are not discoverable; by CRC or the Inspecting Architect during an inspection of the Office Building. 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 Office Building (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 Office Building 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. Z.ADocuments\Shoup,Jenny\City of Carmel\Parcel 2-O1fice and Retail 21Jan15 Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Oflice Building.v2.wpd -3- Monthly Inspection shall mean an inspection conducted by the Inspecting Architect each month during construction of the Office Building, 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. Office Building shall mean a two-story building consisting of approximately 20,000-25,000 square feet,and related facilities, to be constructed on the Office Building Site, which building will house office space. The Office Building is a "Building", and a "New Improvement", under the Remainder Project Agreement. Office Building Construction Drawings shall mean construction drawings for the Office Building, which drawings shall be consistent with: (a) the approved Office Building Design Development Documents and Office Building Construction Schedule; and (b) the Laws. Office Building Construction Schedule shall mean a detailed schedule for construction of the Office Building in accordance with the Office Building Final Plans. Office Building Design Development Documents shall mean detailed design development documents for the Office Building,which documents shall be consistent with the approved Office Building Schematic Design Drawings and the Laws. Office Building Final Documents and Drawings shall mean final Office Building Schematic Design Drawings, final Office Building Design Development Documents, the final Office Building Construction Schedule, and the final Office Building Construction Drawings, as each is: (a) approved by CRC; and/or (b) modified by Change Orders; pursuant to the Plan Refinement Process. Office Building Final Plans shall mean the aggregated Office Building Final Documents and Drawings. Office Building Plan Schedule shall mean the schedule in accordance with which Developer shall prepare and provide to CRC the Office Building Schematic Design Drawings,the Office Building Design Development Documents,the Office Building Construction Schedule,and the Office Building Construction Drawings,which schedule is attached hereto as Exhibit B. Office Building Schematic Design Drawings shall mean detailed schematic design drawings for the Office Building, which drawings shall be consistent with the Laws. Office Building Site shall mean that certain real estate delineated as the"Office Building Site" on the Site Plan. The Office Building Site comprises a portion of the real estate defined in: (a) the Original Project Agreement as the"Phase III Site"; and (b) the Remainder Project Agreement as "Parcel 2". Office Building Taxpayer Agreement shall mean that certain Agreement for Payment in Addition to Taxes (Office Building) of even date herewith executed by and between CRC and Developer. The Office Building Taxpayer Agreement is: (a)the"Office Building Taxpayer Agreement" under the Second Component Project Agreement; and (b) a "Taxpayer Agreement" under the Remainder Project Agreement. Office Completion Guaranty shall mean that certain Completion Guaranty (Office Building) of even date herewith executed by Developer in favor of CRC. The Office Completion Guaranty is the"Office Completion Guaranty" under the Second Component Project Agreement. Original Project Agreement shall mean that certain Project Agreement executed by and between CRC and L..ADocuments\Shoup,Jenny\City of Carmel\Parcel 2-Office and Retail 211,11115 Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Office 13uilding.v2.wpd -4- Pedcor Investments, as predecessor in interest to Developer, dated December 27, 2002, as subsequently amended. Pedcor Investments shall mean Pedcor Investments, A Limited Liability Company. Permitted Change shall mean any change to the final Office Building 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 Office Building 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 Office Building Final Plans. Plan Review Panel shall mean a plan review panel comprised of the Executive Director and two designated members of CRC; provided that, if Les Olds is unavailable or unable to serve on such panel, then a qualified replacement shall serve in his place. 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 Office Building. 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 (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 Office Building. 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 Office Building. Second Component Project Agreement shall mean that certain Project Agreement (Second Component/Park East/SC Public Improvements) by and among CRC, CCC, CCC West, LLC, and CCC Phase II, LLC, 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. Z:ADocuments\Shoup,Jenny\City orCarmei\Parcel 2-Office and Retail 2 1Jan15 Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Office Budding.v2.wpd -5- Streetscape Work Schedule shall mean the "Streetscape Work Schedule" under the Second Component Project Agreement. Substantial Completion shall mean that the Office Building has been substantially completed in accordance with the Office Building 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. Transaction Agreement shall mean that certain Transaction Agreement executed by and among CRC, Developer, Pedcor Residential, LLC, CCC, VHC, Village Financial, LLC, Village on the Green, LLC, and Indiana Design Center, LLC, and dated December 7, 2011, as amended by that certain Amendment to Transaction Agreement dated as of October 1, 2013. 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 Office Building 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 Office Building on the Office Building Site. 3. Representations and Warranties. (a) CRC. CRC represents and warrants to Developer that: (i) CRC shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach of this Agreement; (ii) CRC is a public body organized and existing under the laws of the State of Indiana; and (iii) CRC has the power to enter into this Agreement and to perform its obligations hereunder, CRC duly has been authorized by proper action to execute and deliver this Agreement, and to perform its obligations hereunder, and this Agreement is the legal, valid, and binding obligation of CRC. (b) Developer. Developer represents and warrants to CRC that: (i) Developer shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach of this Agreement; and (ii) Developer has the power to enter into this Agreement and to perform its obligations hereunder, Developer duly has been authorized by proper action to execute and deliver this Agreement, and to perform its obligations hereunder, and this Agreement is the legal, valid, and binding obligation of Developer. 4. Plan Refinement. (a) Schematics. In accordance with the Office Building Plan Schedule, Developer, at its cost and expense, shall submit the Office Building Schematic Design Drawings to CRC for its review and approval. In accordance with the Office Building Plan Schedule, Developer, at its cost and expense, shall submit the Office Building Schematic Design Drawings to CRC for its review and approval, which approval shall not be withheld unreasonably. Within ten days after CRC receives the Office Building Schematic Design Drawings, CRC shall deliver to Developer written notice that it approves or rejects the Office Building Schematic Design %:ADocuments\Shoup,Jenny\City of Carmel\Parcel 2-Office and Retail 21 Jan 15 Redevelopment-including corner parcel\Office 13uilding 5\Project AgreementAProject Agreement-Office Building.v2.wpd -6- Drawings; provided that, if CRC rejects all or any part of the Office Building Schematic Design Drawings, then such notice shall: (i) specify the part or parts that CRC is rejecting; and (ii) include the specific basis for such rejection. Upon approval of the Office Building Schematic Design Drawings, the Office Building Schematic Design Drawings shall be final schematic design drawings for the Office Building, subject to modifications by Change Orders. (b) Office Building Design Development Documents. In accordance with the Office Building Plan Schedule, Developer, at its cost and expense, shall submit the Office Building Design Development Documents and the Office Building Construction Schedule to CRC for its review and approval. Within ten days after CRC receives the Office Building Design Development Documents and the Office Building Construction Schedule, CRC shall deliver to Developer written notice that it approves or rejects the Office Building Design Development Documents and/or the Office Building Construction Schedule; provided that, if CRC rejects all or any part of the Office Building Design Development Documents and/or the Office Building Construction Schedule, then such notice shall: (i)specify the part or parts that CRC is rejecting; and (ii) include the specific basis for such rejection. Upon approval of all of the Office Building Design Development Documents with respect to any Construction Trade, such Office Building Design Development Documents shall be final as to such Construction Trade, subject to modifications by Change Orders. Upon approval of the Office Building Construction Schedule, such Office Building Construction Schedule shall be the final construction schedule with respect to construction of the Office Building, subject to modifications by Change Orders. (c) Office Building Construction Drawings. In accordance with the Office Building Plan Schedule, Developer, at its cost and expense, shall submit to CRC for its review the Office Building Construction Drawings with respect to each Construction Trade. Thereafter, such Office Building 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,within ten days after Developer receives notice from CRC that it has rejected any drawings,documents,or schedules, Developer shall:(i)revise the drawings,documents, or schedules; and (ii) resubmit the drawings, documents, or schedules to CRC. Within ten days after CRC receives the resubmitted drawings, documents, or schedules, CRC shall deliver to Developer written notice that it approves or rejects the resubmitted drawings, documents, or schedules; provided that, if CRC rejects all or any part of the resubmitted drawings, documents, or schedules, then such notice shall: (i) specify the part or parts that CRC is rejecting; and (ii) include the specific basis for such rejection. Upon approval of the resubmitted drawings, documents, or schedules, the resubmitted drawings, documents, or schedules shall become part of the Office Building 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 Office Building Final Plans. (e) Office Building Final Plans. Upon completion of the Office Building Final Documents and Drawings through the Plan Refinement Process, the aggregated Office Building Final Documents and Drawings shall constitute the complete Office Building Final Plans, subject to modification by Change Orders. All references herein to the Office Building Final Plans shall be deemed to be references to the Office Building Final Documents and Drawings, until such time as all of the Office Building Final Documents and Drawings are completed; provided that,when all of the Office Building Final Documents and Drawings are completed, Z:ADocuments\Shoup,Jenny\City or Carmel\Parcel 2-Office and Retail 21 Jan 15 Redevelopment-including corner parcel\Office Building 5\Project AgreementA Project Agreement-Office 13uilding.v2.wpd -7- all references herein to the Office Building Final Plans shall be deemed to be references to the Office Building Final Plans, as modified by Change Orders. (f) Changes. If Developer desires to make any changes to the Office Building Final Plans, other than a Permitted Change, then Developer shall submit to CRC a Change Order Request for its review and approval. Within ten days after receipt of the Change Order Request, CRC shall deliver to Developer written notice that it approves or rejects the Change Order Request; provided that: (i) if such Change Order Request specifies that it is being submitted as a result of a determination by a Construction Trade contractor or subcontractor that a portion of the Office Building falling within the responsibility of such Construction Trade cannot be constructed in accordance with the Office Building Final Plans due to actual: (A)on-site conditions; or(B)conflicts with the work to be performed by another Construction Trade contractor or subcontractor; then CRC shall deliver such written notice to Developer within two business days after receiving the Change Order Request; (ii) CRC shall not withhold its approval unreasonably;and(iii)if CRC rejects all or any part of the Change Order Request, then such notice shall: (A) specify the part or parts being rejected; and (B)include the specific basis for such rejection. 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. To the extent that: (i) CRC has approved any drawings, documents, or schedules pursuant to this Section; and (ii) such drawings, documents, or schedules require the approval of the Architectural Review Committee; CRC, as Declarant under the City Center Declaration and as owner of certain parcels subject to the City Center Declaration, shall vote for approval by the Architectural Review Committee of such drawings, documents, or schedules. (h) Review Panel. Notwithstanding anything to the contrary set forth herein, CRC, at its option, may delegate all or any part of its review and approval or rejection obligations pursuant to this Section to the Plan Review Panel. (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 Office Building, and, as between CRC and Developer, Developer assumes responsibility for defects and deficiencies in the design and engineering of the Office Building (including, without limitation, defects in the Office Building 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 Office Building: (i) in a good and workmanlike manner; (ii) in accordance with the Office Building Final Plans (as modified by any Change Orders); and (iii) in compliance with the Laws; provided that, prior to commencing construction of the Office Building, 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. Z.ADocuments\Shoup,Jenny\City of Carmel Parcel 2-Office and Retail 21Jan I5 Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Office Building.v2.wpd -8- (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 Office Building Site and the Office Building. (I) Assessment. Developer shall be responsible for ensuring that the Office Building is fully assessed for property tax purposes on or before the applicable date set forth in the Office Building Construction Schedule. 5. Inspection. (a) Monthly Inspections. Each month during construction of the Office Building, 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 Office Building 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: Z:ADocuments\Shoup,Jenny\City of Carmel\Parcel 2-Office and Retail 2I ian 15 Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Office Building.v2.wpd -9- (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 Office Building 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 Office Building; CRC shall have no further inspection rights with respect to the construction of the Office Building. 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 2-Office and Retail 2l.lan 15 Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Office Building.v2.wpd -10- (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 Office Building if it later is determined that such portion is inconsistent with the proper completion of a subsequent portion of the Office Building. (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. 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 Office Building, Developer shall maintain the policies of insurance reflected on Exhibit E of the Remainder Project Agreement, with coverages not less than those reflected on Exhibit E of the Remainder Project Agreement. Each such policy shall: (a) be written by a company reasonably acceptable to CRC; and (b) provide that it shall not be modified or canceled without written notice to CRC at least 30 days in advance. The policy of general liability insurance required by this Section shall name CRC as an additional insured. Developer shall deliver to CRC certificates of the insurance policies required by this Section, 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; (iii) enforce the performance or observance by the defaulting party of any term Z:ADocuments\Shoup,Jcnny\City of Carmei\Parcel 2-Office and Retail 21.1an I5 Redevelopment-including corner parcel\Office Building S\Project Agreement\Project Agreement-Office Building.v2.wpd -1 1- 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. (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 Office Building has not commenced as of the date that is 18 months after the date specified in the approved Office Building Construction Schedule,then,at any time until construction has commenced,CRC may elect to require that Developer convey the Office Building Site for an amount equal to the greater of: (i) the fair market value of the Office Building Site; or (ii) the sum of: (A) the purchase price paid by Developer for the Office Building Site; plus(B)reasonable carry costs incurred by Developer and reasonably allocated to the Office Building Site; plus (C) reasonable soft costs incurred by Developer and reasonably allocated to the Office Building Site. If CRC exercises its right to require Developer to reconvey the Office Building Site to CRC pursuant to this Subsection, then: (i) at the time that the Office Building Site is reconveyed to CRC, each of: (A) this Agreement; (B)the Office Completion Guaranty;and(C)to the extent applicable to the Office Building, the Back-Up Completion Guaranty; automatically shall terminate and be of no further force or effect; and (H) Developer shall have no further rights with respect to the Office Building Site. (b) Sole Remedy. Notwithstanding anything to the contrary set forth herein, the rights set forth in this Section, the Office Building Taxpayer Agreement, the Taxpayer Agreement Guaranty, the Office 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 Office Building Site in accordance with the terms and conditions of this Section, then, at the time that the Office Building Site is reconveyed to CRC, each of: (A)the Office Completion Guaranty; and (B)to the extent applicable to the Office Building, 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 Office Z:ADocuments\Shoup,JennyACity of Carmel\Parcel 2-Office and Retail 2 i ian 15 Redevelopment-including corner parcel\Office Building 5\Project 1 Agreement\Project Agreement-Office Building.v2.wpd -12- Building Site in accordance with the terms and conditions of this Section, then CRC and Developer shall close the reconveyance within 15 days after such election. At the closing of the reconveyance: (i)Developer shall execute and deliver closing documents to CRC that are in form and substance reasonably acceptable to CRC and Developer; (ii) Developer shall execute and deliver such easements as CRC shall determine to be necessary or appropriate for the development and use of the Office Building Site; and. (iii) real estate taxes and assessments shall be prorated in the manner customary for commercial transactions in the City. 9. Construction Delay. (a) Catch-Up Plans. If Developer falls 60 or more days behind the applicable dates set forth in the Office Building Plan Schedule or the Office Building Construction Schedule for the design or construction of the Office Building, then: (i) CRC, by delivery of written notice to Developer, may require Developer to submit, within 15 days, a Catch-Up Plan for CRC's approval, which approval shall not be withheld unreasonably. At such time as CRC has approved a Catch-Up Plan, Developer shall implement, and diligently pursue the application of, the Catch-Up Plan. (ii) If Developer: (A)fails to timely submit a Catch-Up Plan; (B)submits a Catch-Up Plan that is rejected by CRC; (C)fails to implement an approved Catch-Up Plan; (D) implements an approved Catch-Up Plan, but fails to diligently pursue the application thereof; or (E) implements an approved Catch-Up Plan and diligently pursues the application thereof, but, after completing all of the terms and conditions of the Catch-Up Plan, again falls 60 or more days behind the dates set forth in the Office Building Plan Schedule or the Office Building Construction Schedule; then CRC may develop a reasonable Catch-Up Plan and require Developer to implement, and diligently pursue the application of, such Catch-Up Plan. (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, the Office Building Taxpayer Agreement, the Taxpayer Agreement Guaranty, the Office 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. (a) CRC. CRC shall indemnify and hold harmless Developer from and against any and all Claims arising from or connected with: (i) the negligence or wilful misconduct of CRC or any party acting by, under, through, or on behalf of CRC; or (ii) the breach by CRC of any term or condition of this Agreement. (b) Developer. Developer shall indemnify and hold harmless CRC from and against any %:ADucuments\Shoup,JennvACity of Carmel\Parcel 2-Office and Retail 21Jan 15 Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Office Building.v2.Nvpd -13- and all Claims arising from or connected with: (i) mechanics' liens filed against the Office Building or the Office Building Site for work performed by Developer or any party acting by, under, through, or on behalf of Developer; (ii) breaches by Developer under contracts to which Developer is a party, to the extent that such contracts relate to the performance of any work on the Office Building Site by Developer or any party acting by, under, through, or on behalf of Developer; (iii) injury to, or death of, persons or loss of, or damage to, property, suffered in connection with performance of any work on the Office Building Site by Developer or any party acting by, under, through, or on behalf of Developer; (iv)the negligence or wilful misconduct of Developer or any party acting by, under, through, or on behalf of Developer; or (v) the breach by Developer of any term or condition of this Agreement. 11. Assignment. CRC shall not assign this Agreement, except to another agency or instrumentality of the City that assumes the obligations of CRC hereunder,without the prior written consent of Developer. Until completion of the Office Building, Developer shall not assign this Agreement, or sell any portion of the Office Building Site, without the prior written consent of CRC; provided that, after completion of the Office Building, Developer may sell the Office Building (or units of space within the Office Building). In addition, membership interests in Developer may be transferred so long as: (a) formal control of Developer remains with Bruce Cordingley, Gerald Pedigo, and/or Phillip Stoffregen; and (b) leadership in the operating control of Developer remains with Bruce Cordingley, so long as Bruce Cordingley is capable; provided that, if, at any time, Bruce Cordingley is incapable, then leadership in the operating control of Developer shall be with Gerald Pedigo, and/or Phillip Stoffregen. Notwithstanding any assignment permitted under this Section: (a) CRC or Developer, as the case may, shall remain liable to perform all of the terms and conditions to be performed by it under this Agreement; and (b) the approval by the other party of any assignment shall not release CRC or Developer, as the case may be, from such performance. 12. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in writing, and shall be deemed to have been given when: (a) delivered in person to the other party; 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 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 and Developer represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary action of CRC 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 and Developer, respectively; and (d)this Agreement is the valid and binding obligation of CRC 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. 15. Miscellaneous. Subject to Section 11, this Agreement shall inure to the benefit of, and be binding upon, CRC and Developer, and their respective successors and assigns. This Agreement: (a) supersedes and replaces the Original Project Agreement, to the extent that the Original Project Agreement applies to the Office Building Site; (b) may be executed in separate counterparts, each of which shall be an original, but all of which together shall constitute a single instrument; (c)shall be governed by, and construed in accordance Z_ADocuments\Shoup,Jenny\City of Carmel\Parcel 2-Office and Retail 21 Jan IS Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Office I3uilding.v2 'pd -14- with, the laws of the State of Indiana; and (d) may be modified only by a written agreement signed by all of CRC 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. Developer waives, to the extent permitted under applicable law: (a)the right to a trial by jury; and (b) any right Developer may have to: (i) assert the doctrine of"forum non conveniens"; or(ii) object to venue. IN WITNESS WHEREOF, CRC and Developer have executed this Agreement as of the date set forth above. THE CITY O . CARMEL RED ,E .MPMENT OoMMISSION y: �� ../Ii__`r[�� AAAU Will am Hammer, 'reyient AND By:0 C. Printed: jAyd C 800 PA'S Title: Ifl(P Pres.' tl f n- f PEDCOR FFIC , LLC By: Printed: 4lii CC A ( r1,# /Cy Title: � C� id-Cezd— ; Ct i✓ Z\Documents\Shoup,Jenny\City of Carmel\Parcel 2-Office and Retail 2 1 Jan I5 Redevelopment-including corner parcel\Office Building 5\Project AgreementAProject Agreement-Office Building.v2.wpd -15- INDEX TO EXHIBITS Exhibit A Site Plan - shows Office Building Site Exhibit B Office Building Plan Schedule (schedule in accordance with which CCC submits Office Building Design Development Documents, Office Building Construction Schedule, and Office Building Construction Drawings) Z\Documents\Shoup,Jennv\City of Cannel\Parcel 2-O1ice and Retail 2 1Jan15 Redevelopment-including corner parer Wilke Building 5\Project AgreementAProject Agreement-Office 13uilding.v2.wpd -16- EXHIBIT .. _ . ` ,, . 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Court Site Y:eels,"., t -'_rczv,774-,7;MTc.3 Wit Y c7*-fa tilii 2 4A*,e',.-k.-W.'ktf-T;:Z:ZS:iff.-d-'-',;;V',4:31,t'litaz-:'a' 0 0 ""'-`-'-r''''' n '''-'' :',;:::.-.;'4732.:-..7..7.,--- :.„,.-..,-.::-.;%':::,:-.."-'-- T.f'..,.--„,..-:„r., ..-rt-,.-.•.... ,...:- ' .:-.,'2,';'.;,',, T.;,..7.-,;:tt:,?.-;"1„, _ . ,„.-.,-,■■■■■'a_'Las r41,.,,,,,, Replacement Exhibits C & D Revised Plan Schedule -,.,,-..4,....- A,. - ,.. Revised Committed Construction ,_;:..;;;,..', ,.. .'..:,..",;-,2-:,:74. Schedule '.'- ':