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REI Real Estate Services, LLC - 2009 DEVELOPER SERVICES AGREEMENT Office Building Project This Developer Services Agreement (Office Building Project) (the "Agreement"), executed by and between T ity of Ca mel Redevelopment Commission("CRC")and REI Real Estate Services,LLC ("REIRES"), this day of i ', '" , 2009, Witnesses: Recitals WHEREAS,CRC intends to redevelop that certain real estate located in the City of Carmel, Indiana (the "City"), and commonly known as Parcels 7B and 7C, which real estate is depicted and/or described on Exhibit A-1 (the "Overall Project Site"); WHEREAS, CRC intends for such redevelopment to include an office building and related improvements (the "Project") on that portion of the Overall Project Site depicted on Exhibit A-2 (the "Office Building Site"); WHEREAS, CRC intends for the redevelopment of the remainder of the Overall Project Site to include a theater building, a structured parking garage, an amphitheater and public plaza, and related improvements, including improvements to the Monon Trail and 3rd Avenue (collectively, the "Adjacent Projects"); and WHEREAS, CRC desires to engage REIRES to serve as the developer with respect to the Project for and on behalf of CRC; Agreement NOW,THEREFORE,for good and valuable consideration,the receipt and sufficiency of which are acknowledged hereby, the parties agree as follows: 1. Appointment and Term. (a) Services. Subject to the terms of this Agreement, CRC hereby appoints REIRES, and REIRES hereby agrees to act, as CRC's independent contractor to perform management,supervision,development,and construction services with respect to the Project that are specified in this Agreement (collectively, the "Development Services"). Notwithstanding anything to the contrary set forth herein, if CRC: (i) is unable to secure construction and/or permanent financing satisfactory to CRC to complete the Project; or (ii)decides, in its sole discretion, not to proceed with the Project;then CRC may terminate this Agreement. (b) Term. The term of this Agreement (the "Term") shall: (i) commence on the date hereof; and (ii)end on the earlier of: (A) the occurrence of all of the following: (1) completion by REIRES of the Development Services; (2) acceptance by CRC of the Project; (3) occupancy of 85% of the Project; (4) final payment of the Professionals (as defined in Section 4), the Contractor (as defined in Section 5), any other contractors, and any subcontractor; (5) the hiring by CRC of a permanent property manager for the Project; and (6) payment by CRC of the full Development Fee (as defined in Section 11); (B) the date that is 48 months after the date hereof; or (C) termination of this Agreement by a party in accordance with the terms and conditions hereof. (c) Performance. REIRES shall perform the Development Services: (i) in a good, workmanlike,diligent,and efficient manner and on behalf of CRC;(ii)in accordance with the professional development standards for comparable projects; and (iii) in compliance in all material respects with all applicable laws, statutes, and/or ordinances, and any applicable governmental or judicial rules, regulations, orders, and/or decrees (the "Laws"). REIRES shall obtain, and maintain during the performance of the Development Services, all professional licenses and certifications required by the Laws. CRC shall: (i)cooperate with REIRES in the performance of the Development Services;and (ii)assist and work together with REIRES in good faith in order to facilitate timely and cost-efficient management, supervision,development, and construction of the Project. (d) CRC Representative. CRC designates Les Olds as the"CRC Representative"for purposes of this Agreement, and acknowledges that the CRC Representative shall be an agent fully authorized and empowered by CRC to: (i) perform the duties and functions of CRC set forth herein; and (ii) bind CRC as to the matters provided for herein. (e) REIRES Representative. REIRES designates Michael Wells and Jeremy Stephenson as the "REIRES Representative" for purposes of this Agreement, and acknowledges that the REIRES Representative shall be an agent fully authorized and empowered by CRC to: (I)perform the duties and functions of REIRES set forth herein;and (ii) bind REIRES as to the matters provided for herein. (f) Successor Representatives. CRC and REIRES may designate successor CRC Representatives or REIRES Representatives,respectively,by delivery of written notice to the other party. 2. Budget and Schedule. (a) Budget. REIRES has prepared and submitted to CRC,and CRC has approved,the budget for financing, developing, constructing, and leasing the Project (the "Development Budget"). The approved Development Budget is attached hereto as Exhibit C. The Development Budget:.(i) is a commercially reasonable estimate of the anticipated costs of financing, developing, constructing, and leasing the Project; and (ii) represents REIRES's best judgment as a skilled and experienced developer. CRC recognizes that actual costs of financing, developing, constructing, and leasing the Project may be affected by factors beyond REIRES's control. Accordingly, CRC acknowledges that: (i) REIRES cannot and does not represent or warrant that actual costs of financing, developing, constructing, and leasing the Project will be consistent with the Development Budget;and (ii) REIRES cannot be, and is not,obligated to limit expenditures to those set forth in the Development Budget; provided that REIRES shall exercise its best efforts to so limit expenditures. CRC shall have the absolute right and discretion to re-allocate funds within the Development Budget among the various items contained within the Development Budget. (b) Schedule. REIRES shall prepare and submit to CRC a schedule for developing. constructing, and leasing the Project (the "Development Schedule"), which Development Schedule shall be subject to approval by CRC. The Development Schedule shall: (i) be a good faith estimate of the anticipated schedule for developing,constructing,and leasing the Project;and(ii)represent REIRES's best judgment as a skilled and experienced developer. CRC recognizes that the actual schedule for developing,constructing,and leasing the Project may be affected by factors beyond REIRES's control. Accordingly,CRC acknowledges that: (i)REIRES cannot and does not represent or warrant that the actual schedule for developing, constructing, and leasing the Project will be consistent with Development Schedule; and (ii) REIRES cannot be, and is not, obligated to adhere absolutely to the Development Schedule;provided that REIRES shall exercise its best efforts to adhere to the Development Schedule. CRC shall have the absolute right and discretion to approve the Development Schedule. 3. Comprehensive Understanding. REIRES shall:(a)obtain a comprehensive understanding of the Project and its relation to the Adjacent Projects, including, without limitation, that REIRES shall review all: (i)pre-design studies, preliminary site plans, and current building programs with respect to the Project and, to the extent requested by CRC, the Adjacent Projects; and (ii) easements, licenses, development agreements, sponsorship agreements, and other pertinent documents that apply with respect to the Project so as to permit REIRES to manage, supervise,develop, and construct the Project;and (b) assist CRC with obtaining financing for the Project. 4. Professional Services. (a) REIRES shall arrange for,and supervise rendering of,all architectural,engineering, accounting, consulting, and other professional services required in connection with, and during, the period of development and construction of the Project (the "Professional Services"). The foregoing obligation of REIRES shall include, without limitation: (I)engagement,subject to CRC's prior written approval and on CRC's behalf,and supervision of, all architects, engineers, accountants, consultants, and other professionals (the "Professionals")reasonably deemed by REIRES to be necessary to develop and construct the Project; and (ii)oversight of preparation of final working drawings and specifications for the Project(the"Project Plans");provided that the CRC Representative shall have approved all design matters with respect to the Project prior to the time that the Project Plans are prepared. (b) Professionals acceptable to, and approved by CRC in writing,shall be engaged for the purpose of providing the Professional Services, and all such Professionals shall communicate with CRC through REIRES. REIRES: (i) acting on behalf of CRC, shall negotiate and prepare the contracts with the Professionals that are engaged for the purpose of providing Professional Services (the "Professional Contracts"); provided that: (A) the form and substance of each Professional Contract shall be subject to CRC's written approval; and (B)CRC or the owner of the Office Building Site,as opposed to REIRES, shall execute the Professional Contracts; and (ii) shall be responsible for administering the Professional Contracts. (c) REIRES shall review the Project Plans to ascertain that they are suitable in all material respects for the intended purpose; provided that: (i) the Project Plans shall be subject to CRC's approval;(ii)construction shall not commence until such approval has been obtained; (iii) approvals by CRC of the design matters and the Project Plans shall: (A) be strictly for CRC's own use and benefit;(B)not place any design liability on CRC; and (C)not affect REIRES's obligations hereunder;and (iv)no other party may rely on any approvals by CRC. The CRC Representative shall provide notice of approval or disapproval within five working after receipt of the Project Plans. The Project Plans must comply with City and other governmental standards, unless otherwise approved by the appropriate governmental agency. -3- 5. Contracting for Construction. (a) REIRES and CRC hereby acknowledge that a general contractor or a construction manager (either, the "Contractor") will be engaged to provide general contracting or construction management services for the Project. REIRES shall recommend to CRC a preferred general contractor or construction manager to serve as the Contractor based upon REIRES's knowledge and experience;provided that CRC,in its sole discretion, shall select the Contractor. (b) Consistent with the Development Schedule,REIRES shall:(i)prepare(or cause the Contractor to prepare) bid packages for development and construction of the Project, together with lists of proposed bidders for the work identified in the bid packages(each, the "Bid Package"); and (ii) submit each Bid Package to CRC for its approval. Within seven business days after receipt of a Bid Package,CRC shall deliver to REIRES written notice that it approves or rejects the Bid Package;provided that, if CRC rejects the Bid Package, then: (i) such notice shall specify the changes that are required for CRC to approve the Bid Package;and (ii)within five business days after REIRES receives notice of such rejection, REIRES shall make (or cause the Contractor to make)the changes specified in such notice and resubmit the Bid Package to CRC. (c) Upon approval by CRC of a Bid Package, REIRES shall: (i) solicit (or cause the Contractor to solicit)bids from qualified bidders(including those specified by REIRES in the Bid Package);(ii)receive(or cause the Contractor to receive)the bids submitted in response to the Bid Package; and (iii) promptly evaluate such bids and deliver to CRC a written evaluation of.the bids submitted in response to the Bid Package (the "Bid Evaluation"), which Bid Evaluation shall include updates of the Development Budget and the Development Schedule to reflect the information set forth in the bids. Within ten business days after receipt of the Bid Evaluation, CRC shall direct either that: (i) a specified bid be accepted; or(ii) all bids be rejected. (d) If CRC directs that all bids be rejected, then REIRES shall work with CRC and the owner of the Office Building Site to: (i)determine whether there are changes acceptable to CRC that may be made to the Project Plans to increase the likelihood of receiving acceptable bids; and (ii) if applicable, revise the Project Plans. After such changes have been made, CRC may: (i)direct REIRES to solicit(or cause the Contractor to solicit) additional bids for the development and construction of the Project; or (ii) elect to table construction of the Project for the immediate future and terminate this Agreement. (e) REIRES:(i)acting on behalf of CRC, shall negotiate and prepare the contracts with the Contractor, any other contractors, and any subcontractors (the "Construction Contracts");provided that: (A)the form and substance of each Construction Contract shall be subject to CRC's written approval; and (B)CRC or the owner of the Office Building Site, as opposed to REIRES, shall execute the Construction Contracts; and (ii) shall be responsible for administering the Construction Contracts. 6. Construction. (a) REIRES shall:(i)oversee the activities of the Contractor,any other contractors,and any subcontractors to insure that all construction work (specifically including, without limitation, all interior finish work) is performed substantially in the manner required by the approved Project Plans, and on a timely basis; and (ii) provide CRC with progress reports substantially as specified on Exhibit B. (b) REIRES shall ensure that CRC has access to the Office Building Site and the Project at all times so that CRC may make whatever inspections of the Office Building Site and/or -4- the Project as CRC deems to be necessary or appropriate. (c) During construction of the Project, REIRES shall schedule and attend periodic progress meetings at CRC's offices. Minutes of all such meetings shall be taken by REIRES, and copies thereof shall be furnished to the CRC Representative as soon as is practicable following each meeting. (d) During construction of the Project, the REIRES Representative and the CRC Representative shall meet at the Office Building Site on a monthly basis (with the date and time to be determined jointly by the parties) to ensure compliance with the requirements of the Construction Contracts and the Laws. (e) REIRES shall: (i) issue all instructions to the Professionals, the Contractor, any other contractors, and any subcontractors for and on behalf of CRC and the owner of the Office Building Site;and (ii)be responsible for communications from CRC and the owner of the Office Building Site to the Professionals, the Contractor, any other contractors, and any subcontractors. (f) REIRES shall: (i) review, advise CRC with respect to, and approve or disapprove all requests for payment from the Professionals,the Contractor,any other contractor,and any subcontractors (including any claims for additional compensation); provided that REIRES shall not approve or disapprove any such request for payment without first obtaining the consent of CRC; and (ii) coordinate obtaining lien waivers and releases, title updates, and inspections of the Project. (g) REIRES shall prepare and/or review, and advise CRC with respect to, all change orders for the Project; provided that all such change orders shall be approved in writing by CRC prior to being executed and implemented. (h) REIRES shall attend meetings scheduled by CRC with respect to the development and construction of the Project (including, without limitation, meetings with respect to the implementation of value engineering and other cost saving efforts). (i) REIRES shall advise CRC with respect to any value engineering or other cost savings opportunities with respect to the Project. ()) REIRES shall coordinate all insurance coverages for the Project with the Professionals,the Contractor,any other contractor,and any subcontractors,and collect proof of insurance from such parties. (k) REIRES shall ensure that the Contractor, any other contractor, and any subcontractors obtain any and all applicable permits and approvals prior to performing work with respect to which such permits and approvals pertain. (I) REIRES shall not be responsible for, and CRC hereby releases and discharges REIRES from, any and all acts or omissions of: (i)the owner of the Office Building Site,the Professionals,the Contractor,any other contractor,any subcontractor,and/or the agents and employees of the foregoing; or(ii) any other party that is not an agent of REIRES. (m) Without limiting the scope of Subsection 6(l),and except as otherwise specified in Section 14, REIRES shall not be responsible for: (i) means, methods, techniques, or procedures of construction selected by the Professionals, the Contractor, any other contractor,or any subcontractor;(ii)safety precautions and programs incident to work of the Contractor, any other contractor, or any subcontractor; provided that REIRES shall: (A) review such safety precautions and programs; and (B) notify CRC of any concerns that -5- REIRES identifies with respect thereto; (iii)any failure of the Professionals,the Contractor, any other contractor, or any subcontractor to comply with any Law: provided that REIRES shall:(A)notify CRC of any failure of which REIRES becomes aware;and (B)assist CRC in addressing such failure; or (iv) any failure of the Contractor, any other contractor, or any subcontractor to perform work on the Project in accordance with the applicable Construction Contracts; provided that REIRES shall: (A) notify CRC of any failure of which REIRES becomes aware;and (B)assist CRC in addressing such failure. REIRES is not a guarantor or warrantor of performance or workmanship of the Professionals,the Contractor,any other contractor, or any subcontractor with regard to the Project or any work thereon. 7. Accounting. (a) REIRES shall maintain complete and accurate books of account with respect to the performance of the Development Services and the development and construction of the Project(the"Books and Records"),which Books and Records shall be available at all times to CRC for review during the course of development and construction of the Project. Upon final completion of the Project and acceptance thereof by CRC, REIRES shall turn over to CRC all Books and Records,and render to CRC a final accounting of costs of development and construction of the Project. (b) As events occur that result in changes to the Development Budget and/or the Development Schedule, REIRES shall: (i) update the Development Budget and/or the Development Schedule; and (ii) prepare and update total Project cost and cash flow analyses. (c) REIRES shall prepare and/or review,advise CRC with respectto,and submitto CRC for its reasonable approval all draw requests, which draw requests shall be in a form acceptable to CRC. (d) Upon receipt of funds reflected in a draw request, REIRES shall pay, for and on behalf of CRC, all costs reflected in the draw request on which such funding is based. 8. Completion. Upon notification from the Contractor, any other contractor, or any subcontractor that its work on the Project is substantially completed and ready for inspection, REIRES shall: (a) inspect the substantially completed work: (b) advise CRC as to the completion and acceptability of such work; and (c) prepare a "punch-list"; in each case with the assistance of the inspecting architects and the CRC Representative. Thereafter, REIRES shall oversee completion of the items on the "punch-list". Final acceptance of work on the Project shall be made only with CRC's approval,which approval may be withheld by CRC in its sole discretion. 9. Management. REIRES shall provide initial lease administration and property management with respect to the Project in accordance with this Section. (a) REIRES shall prepare and submit to CRC a budget and operating pro-forma with respect to operating,managing,and maintaining the Project(the"Operating Budget"),which Operating Budget shall be subject to approval by CRC. The Development Budget shall:(i)be a commercially reasonable estimate of the anticipated costs of operating, managing, and maintaining the Project; and (ii) represent REIRES's best judgment as a skilled and experienced property manager. CRC recognizes that actual costs of operating, managing, and maintaining the Project may be affected by factors beyond REIRES's control. Accordingly, CRC acknowledges that: (i)REIRES cannot and does not represent or warrant that actual costs of operating, managing, and maintaining the Project will be consistent with the Operating Budget;and (ii)REIRES cannot be,and is not,obligated to limit expenditures to those set forth in the Operating Budget; provided that REIRES shall exercise its best efforts to so limit expenditures. CRC shall have the absolute right and discretion to: -6- (i) approve the Operating Budget; and (ii) re-allocate funds within the Operating Budget among the various items contained within the Operating Budget. If and to the extent requested by CRC, REIRES shall update the Operating Budget. (b) REIRES shall negotiate and prepare the leases with tenants of the Project (the "Leases");provided that:(i)the form and substance of the Leases shall be subject to CRC's written approval; and (ii) CRC, as opposed to REIRES, shall execute the Leases. If completion of the Project is delayed,then,pending completion of the Project,REIRES either shall:(i)negotiate and,if applicable,prepare extensions of existing leases;or(ii)arrange for temporary office space; for tenants under Leases (the "Project Tenants"). (c) REIRES shall:(i)coordinate space planning for the Project Tenants;(ii)review,and advise CRC with respect to, plans for tenant improvements and finishes pursuant to the Leases (the "Tenant Improvements"); (iii) assist with, or obtain, permits and approvals necessary for completion of the Tenant Improvements(including,without limitation, permits and approvals with respect to signage); (iv) coordinate completion of the Tenant Improvements; and (v)coordinate the "move-in"of the Project Tenants. 10. Expenses. All reasonable, actual, out-of-pocket costs and expenses incurred by REIRES: (a) in connection with: (i) out-of-town travel required to discharge its obligations hereunder; and/or (ii) preparing materials for presentation; or (b) that are authorized and/or approved by CRC (the "Out-of-Pocket Expenses"); shall be paid (or reimbursed) by CRC (or disbursed to REIRES for Payment). All costs, expenses, and fees pertaining to the Project authorized by CRC, either directly or pursuant to the most recently updated and approved Development Budget (including, without limitation, fees for services of Professionals, Out-of-Pocket Expenses, and fees for other similar services pertaining to the development, construction, or leasing of the Project) shall be paid (or reimbursed) by CRC (or disbursed to REIRES for payment)upon receipt by CRC of evidence of such costs,expenses,and fees on which CRC reasonably may rely and in the ordinary course of CRC's business. 11. Compensation. As compensation for performance of the Development Services,CRC shall pay to REIRES a development fee equal to 2% of the total Development Budget ("Development Fee"). The Development Fee shall be recalculated with each change in the Development Budget; provided that, in no event shall the Development Fee be less than 2% of the approved Development Budget attached hereto as Exhibit C. The Development Fee shall be paid on a pro rata basis over a 30 month draw schedule, payable at such time as each draw referenced in Section 7 is funded; provided that, if the Term has not ended as of the date that is 36 months after the date hereof,then,with respect to any Development Services provided by REIRES during the period:(a)commencing at the beginning of the 36th month of the term of this Agreement; and(b)ending on the final day of the Term; REIRES shall be compensated for such services at the hourly rate set forth on Exhibit D. If REIRES has submitted evidence of Out-of-Pocket Expenses in accordance with Section 10,then CRC shall exercise reasonable efforts to cause such Out-of-Pocket Expenses to be paid with the payment of the Development Fee;provided that REIRES acknowledges that:(a)it is necessary for CRC to pay the Out-of-Pocket expenses in the ordinary course of Its business as provided in Section 10; and (b) this Section shall not be deemed to require CRC to pay outstanding Out-of-Pocket Expenses in any manner other than in the ordinary course of CRC's business and otherwise in accordance with Section 10. 12. Defaults and Remedies. (a) Each of the following shall be an "Event of Default": (i) the failure of either party, subject to Force Majeure (as defined below),to perform its obligations substantially in accordance with the terms hereof, and the continuation of such failure for 30 days after receipt of written notice of such failure from the other party; provided that, if such failure is of a nature that it reasonably cannot be cured within 30 days,then such failure shall not be an Event of Default so long the failing party: -7- (A)commences a cure of such failure within 10 days after receipt of written notice of such failure from the other party; and (B) diligently pursues such cure to completion. (ii) REIRES's insolvency, appointment of a receiver for all or substantially all of REIRES's assets, general assignment of REIRES's assets for the benefit of creditors,or continuation of proceedings under any bankruptcy law with REIRES as debtor, whether voluntary or involuntary, and the continuance of any of the foregoing for a period of 60 days. For purposes of this Agreement,"Force Majeure"shall mean events beyond the control of a party, the result of which is that such party is prevented from performing its obligations substantially in accordance with the terms and conditions of this Agreement: If there is Force Majeure,then the time for performing an obligation hereunder shall be extended for a period equal to the duration of the Force Majeure. (b) If there is an Event of Default, then the non-defaulting party may terminate this Agreement and or exercise the remedies available to it at law or in equity. Notwithstanding anything to the contrary set forth herein:(i)the remedies available to the non-defaulting party shall be cumulative; and(ii) exercise of any remedy shall not preclude the exercise of any other available remedy. (c) If this Agreement is terminated prior to completion by REIRES of the Development Services and payment to REIRES of the entire Development Fee, then CRC shall pay to REIRES an amount equal to:(i)the portion of the Development Fee due as of the termination date;plus (ii)all reimbursements due to REIRES as of the termination date;less (iii)if such termination is due to an Event of Default by REIRES, all losses, damages, costs, and expenses incurred by CRC as a result of such Event of Default. 13. CRC Indemnity. Except in the case of: (a) any loss, damage or expense arising from: (i) the negligence or willful misconduct of REIRES, and/or any employee or agent of REIRES; or(ii)any breach by REIRES of this Agreement; or(b) any action taken by REIRES, and/or any employee or agent of REIRES, outside the scope of REIRES's authority hereunder;CRC shall indemnify,defend,and hold harmless REIRES, and its employees and agents, from and against any and all losses, damages, or expenses (including reasonable attorneys' fees) arising from: (a) any cause in or about the Project when REIRES, and/or such employees or agents, are carrying out the provisions of this Agreement or acting under CRC's express directions; and (b) any breach or violation by CRC of any term or condition of any Professional Contract or Construction Contract. All risk of damage to, or destruction of: (a)the Project, at any state of development and construction thereof;or(b)any personal property of CRC or the owner of the Office Building Site that is located within the Project;shall be borne by CRC or the owner of the Office Building Site unless such damage or destruction arises from: (a) the negligence or willful misconduct of REIRES, or any employee, agent or independent contractor of REIRES; (b)the breach by REIRES of this Agreement;or(c)any action taken by REIRES,and/or any employee or agent of REIRES,outside the scope of REIRES's authority hereunder.The indemnities set forth in this Section shall survive the termination of this Agreement and the completion of Development Services by REIRES. 14. REIRES Indemnity. REIRES shall indemnify, defend, and hold harmless CRC, and its employees and agents,from and against any and all losses,damages,or expenses(including reasonable attorneys'fees) resulting from:(a)any negligence or willful misconduct of REIRES,and/or any employee or agent of REIRES; (b)any breach by REIRES of this Agreement; (c) any action taken by REIRES, or any employee or agent of REIRES, outside the scope of REIRES's authority hereunder; and/or (d) any claim for wages, benefits, or otherwise by any employee or contractor of REIRES in violation of Subsection 16(b). The indemnities set forth in this Section shall survive the termination of this Agreement and the completion of Development Services by REIRES. -8- 15. CRC's Approval. Whenever CRC's consent,approval,or acceptance is required:(a)REIRES shall submit to CRC a written request for such consent, approval,or acceptance;and (b)such consent, approval or acceptance shall not be withheld, delayed, or conditioned unreasonably, except to the extent that this Agreement provides to the contrary. Unless otherwise provided herein, CRC shall have a period of five business days following receipt of such request to grant or deny such consent,approval,or acceptance and, if CRC elects to withhold its consent, approval, or acceptance, then CRC shall furnish to REIRES written notice thereof within such seven working day period. 16. Relationship. (a) Nothing in this Agreement shall be deemed or construed to create between REIRES and CRC (or any person or entity claiming by, through, or under CRC) the relationship of partner,joint venturer,co-principal,or associate,and REIRES shall perform all Development Services as an independent contractor(and not as an agent). (b) The employees and contractors of REIRES : (i)are (and shall be considered for all purposes to be)the employees or contractors of REIRES;and (ii) are not(and shall not be considered for any purpose to be) the employees or contractors of CRC or the City. Accordingly, CRC and the City shall have no obligations or liabilities with respect to such employees and contractors,who shall look exclusively to REIRES to discharge all obligations and duties as their employer or principal. (c) REIRES: (i) shall have no liability for the payment and performance of CRC's obligations, except: (A) in connection with payment of: (1) draw requests pursuant to Section 7;and(2)amounts for which funds are disbursed to REIRES pursuant to Section 10; and/or (B) in the event of REIRES's negligence, willful misconduct, or breach of this Agreement; and (ii) with respect to agreements to which CRC or the owner of the Office Building Site is a party,shall direct the other party thereto to look to CRC or the owner of the Office Building Site for all obligations of"owner"thereunder. 17. Assignment. REIRES shall not assign its rights, duties, and obligations hereunder without the written consent of CRC,which consent may be withheld in CRC's sole discretion. CRC may assign its rights, duties,and obligations hereunder to a community development corporation or any agency or instrumentality of the City. No assignment hereof by either party shall affect or reduce any of the assignor's obligations hereunder, which obligations shall continue in full force and effect as obligations of a principal and not a surety,to the same extent as though no assignment had been made. Subject to the foregoing,this Agreement shall inure to the benefit of and be binding upon the parties, and their respective legal representatives, successors and permitted assigns. The provisions hereof are solely for the benefit of the parties and their respective legal representatives, successors and permitted assigns, and shall not be deemed or construed to create rights for any other person's benefit. 18. Notices. All notices, requests and other communications hereunder shall be in writing and shall be deemed to have been given:(a)on the day after delivery to a nationally recognized overnight courier service; (b)on the third day after deposit with the United States Postal Service, if sent by certified or registered mail, return receipt requested,postage prepaid;or(c)on the day of transmission,if sent via facsimile transmission to the facsimile number given below for a party, so long as electronic confirmation of receipt is obtained promptly after completion of transmission; in any case addressed as follows: to CRC at 111 W.Main Street, Suite 140 Carmel,IN 46032,Attention:Mr.Les Olds,Telephone:(317)571-2492,Facsimile:(317)571-2789, with a copy to Wallack,Somers&Haas,P.C.,Attention:Karl P.Haas,Esq.,One Indiana Square,Suite 1500, Indianapolis, IN 46204, Telephone: (317) 231-9000, Facsimile: (317) 231-9900; and to REIRES at 11711 North Meridian, Suite 200 Carmel, IN 46032, Attention: Mr. Jeremy Stephenson, Telephone: (317) 573-6050, Facsimile: (317) 573-6055. Either party may change its address for notice purposes by delivering to the other party notice in accordance with the terms and conditions of this Section. 19. Liens. REIRES shall not suffer or cause the filing of any mechanic's lien against the Office Building -9- Site,or any part thereof;by reason of labor,services or materials claimed to have been performed or furnished to or for REIRES. If any such mechanic's lien is filed against the Office Building Site,or any part thereof,then REIRES shall cause such mechanic's lien to be discharged of record,within 30 days after notice of filing, by bonding or as provided or required by law. Nothing in this Agreement shall be deemed or construed to: (a)constitute consent to,or request of,any party for the performance of any work for,or the furnishing of any materials to, REIRES; or (b) give REIREs the right or authority to contract for, authorize, or permit the performance of any work,or the furnishing of any materials;that would permit the attaching of a mechanic's lien to the Office Building Site. 20. No Waiver. No failure on the part of either party at any time to require performance by the other party of any term or condition of this Agreement shall: (a)be taken or held to be a waiver of such term or condition; or(b) affect the right of such party to enforce such term or condition. No waiver by either party of any term or condition of this Agreement shall be taken or held to be a waiver of any other term or condition. 21. Attorneys' Fees. If any action is instituted in connection with this Agreement, then the prevailing party shall be entitled to recover such sum as the court may adjudge reasonable as attorneys'fees in such action, and on any appeal from any judgment or decree entered therein. 22. Miscellaneous. This Agreement: (a) contains the entire understanding between the parties with respect to the subject matter hereof; (b) may be amended, modified, or supplemented only by a written instrument executed by both parties;(c)shall be governed by,and construed in accordance with,the laws of the State of Indiana; and (d) represents the result of negotiations between the parties, each of which was represented by counsel of its choice,and neither of which acted under duress or compulsion. The terms and conditions of this Agreem ent shall be interpreted and construed in accordance with their usual and customary meanings,and the parties expressly waive and disclaim any rule of law providing that ambiguous or conflicting terms or conditions contained in this Agreement shall be interpreted or construed against the party whose counsel prepared this Agreement (or any draft hereof). The invalidity or unenforceability of any term or condition of this Agreement shall not affect the validity or enforceability of any other term or condition hereof, and this Agreement shall be construed in all respects as if it never included the invalid or unenforceable term or condition. The captions used in this Agreement are for convenience only, and shall not be considered in the interpretation of any term or condition hereof. If any date specified in this Agreement occurs on (or any period specified in this Agreement expires on)a Saturday,Sunday or holiday,then such date(or the expiration date of such period) shall be deemed to refer to the next occurring business day. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute one and the same instrument. The exhibits referenced in this Agreement are attached hereto and incorporated herein by reference. IN WITNESS WHEREOF,the parties have executed this Agreement as of the date set forth above. CRC: THE CITY OF CARMEL REDEVELOPMENT CO ONON B y. /:!►� Les Olds, Executive Director REIRES: REI REAL ESTATE SERVICES, LLC By: • Michael W. Wells, President -10- EXHIBIT A-1 Description/Depiction of Overall Project Site -I I- EXHIBIT A-2 Depiction of Office Building Site -13- EXHIBIT B Progress Reports -13- Exhibit C Approved Development Budget Development Development Project Budget for Fee (2/o) of Office Building Office Building Office Building One $10,851,485 $217,030 Tenant Space (1) Black Box Theatre $2,794,441 $55,889 General Site Engineering $1,645,000 $32,900 Tenant Space (3) (SEP Computer Consultants) $ 2,402,404.86 $ 48,048.10 Office Building 1 - 1&2 TI Finish $360,647 $7,213 TOTAL= $18,053,977 $ 361,079.55