Project AgreementPROJECT AGREEMENT
This PROJECT AGREEMENT (the "Agreement "), by and between THE CITY OF CARMEL
RED ELOPMENTCOMMISSION (the "CRC") and E. Nicholas Kestner ("Kestner"), entered intothigr}/ day
of flu& u4 , 2000, WITNESSES:
Recitals
WHEREAS, CRC intends to create a City Center that will provide a balanced mixture of retail
facilities, a movie theater, dining options, a corporate office campus, and other facilities (the "City Center");
WHEREAS, CRC has acquired certain real estate, and is in the process of acquiring other
real estate, that will be incorporated into the City Center;
WHEREAS, Kestner is fee simple owner of certain real estate that is located within the City
Center, as depicted on Exhibit A, attached hereto and incorporated herein by reference (the "Kestner Site ");
WHEREAS, CRC desires to acquire the Kestner Site for incorporation into the City Center;
WHEREAS, Kestner currently operates a bicycle shop (the "Existing Bicycle Shop ") on the
Kestner Site;
WHEREAS, tenants of Kestner (the "Kestner Site Tenants ") currently operate businesses on
the Kestner Site under written leases (the "Existing Leases ");
WHEREAS, after the creation by CRC of the City Center, the Kestner Site will not be suitable
for the operation of the Existing Bicycle Shop or the businesses of the Kestner Site Tenants (the "Existing
Tenant Businesses ");
WHEREAS, there is, within the City Center, a parcel of real estate suitable for construction
of a bicycle shop and additional tenant space, which parcel of real estate is depicted on Exhibit B, attached
hereto and incorporated herein by reference (the "City Center Site ");
WHEREAS, CRC desires: (a) to tender to Kestner an exchange of the City Center Site and
a payment of cash for title to the Kestner Site; and (b) as a condition of such exchange, to require Kestner to
construct on the City Center Site a bicycle shop (the "City Center Bicycle Shop "); and
WHEREAS, Kestner desires to: (a) accept from CRC an exchange of the City Center Site and
a payment of cash for title to the Kestner Site; and (b) satisfy the condition of such exchange by constructing
on the City Center Site the City Center Bicycle Shop;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are acknowledged hereby, CRC and Kestner agree as follows:
Section 1. Kestner Site Conveyance. Kestner agrees to convey to CRC fee simple title to the Kestner
Site, subject to the terms and conditions of this Agreement.
Section 2. City Center Site Conveyance. CRC agrees to convey to Kestner fee simple title to the City
Center Site, subject to the terms and conditions of this Agreement.
Section 3. Closing. Subject to the terms and conditions of this Agreement, the closing with respect to
the conveyance of both the Kestner Site and the City Center Site (the "Closing ") shall occur within 15 days
after all of the conditions set forth in Sections 9 and 10 are satisfied in full or waived in writing by CRC and
Kestner, respectively; provided that: (a) notwithstanding anything to the contrary set forth herein, the
conveyance of both the Kestner Site and the City Center Site shall be simultaneous, and may not occur
separately; and (b) the exact date of the Closing (the "Closing Date ") to be established mutually by CRC and
Kestner. The Closing shall take place at the office of Hamilton Title Security, Inc., or such other title insurance
company upon which the parties mutually may agree (the "Title Company "), or at such other place as CRC
and Kestner mutually may agree. At the Closing, CRC shall pay to Kestner by cashiers check or wire transfer
an amount to be calculated as follows: (a) $1,450,000.00; less (b) $250,000.00.
Section 4. Lease of Kestner Site. At the Closing, CRC and Kestner shall execute a net lease pursuant
to which Kestner shall lease the Kestner Site from CRC for the continued operation of the Existing Bicycle
Shop and the Existing Tenant Businesses (the "Kestner Site Lease "). The term of the Kestner Site Lease (the
"Lease Term ") shall commence on the Closing Date, and shall expire on the date that is 18 months after the
date on which Kestner is required to commence construction of the City Center Bicycle Shop on the City
Center Site pursuant to the Construction Schedule (as defined in Section 13); provided that, if the Lease Term
has not expired already, then the Lease Term shall expire on the date that is 30 days after Kestner is able to
obtain a certificate of occupancy for the City Center Bicycle Shop, even if such date is less than 18 months
after the Lease Term commenced. The Kestner Site Lease shall provide that Kestner shall: (a) pay general
and special governmental and utility assessments (the "Assessments ") as provided in Section 7 (the
Assessments not assumed by CRC); (b) pay real estate taxes as provided in Section 7 (the real estate taxes
not assumed by CRC); (c) pay all utility charges and other operating expenses incurred during the Lease
Term with respect to the Kestner Site and the operation of the Existing Bicycle Shop and the Existing Tenant
Businesses on the Kestner Site; (d) maintain throughout the Lease Term casualty and liability insurance with
respect to the Kestner Site and the operation of the Existing Bicycle Shop and the Existing Tenant Businesses
on the Kestner Site, as reasonably required by CRC; (e) satisfy all obligations of the landlord under each of
the Existing Leases during the Lease Term; and (f) maintain the Kestner Site in a safe condition that complies
with all applicable federal, state, and local laws, statutes, ordinances, rules, regulations, guidelines, orders,
and /or decrees (the "Laws "). Kestner shall not be obligated to pay rent to CRC for the lease of the Kestner
Site. During the Lease Term, Kestner shall assist CRC in negotiating early terminations of the Existing
Leases, which early terminations would be effective as of dates provided by CRC when the negotiations
commence; provided that Kestner shall not be responsible, or have any liability to CRC, if CRC and Kestner
are not able to reach agreements with the Kestner Site Tenants with respect to the early termination of the
Existing Leases. Upon the expiration of the Lease Term or the earlier termination of the Kestner Site Lease,
Kestner shall deliver to CRC an assignment of the Existing Leases still in effect, pursuant to which, as of the
date of the assignment, CRC shall assume all obligations of the landlord under each such Existing Lease.
Section 5. Kestner Site Closing Documents. At the Closing, Kestner shall deliver to CRC: (a) a fully
executed limited warranty deed conveying to CRC marketable, indefeasible fee simple title to the Kestner Site,
free and clear of any and all liens, encumbrances, easements, restrictions, covenants, and other title defects,
except the lien of current real estate taxes and assessments not delinquent and the Kestner Site Permitted
Exceptions (as defined in Subsection 9(c)); (b) a vendor's affidavit in form and substance reasonably
satisfactory to CRC and the Title Company; (c) an affidavit that Kestner is not a "foreign person ", in form and
substance required by the Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder (the "Code "); (d) an affidavit that, to the best of Kestner's knowledge, the Kestner Site
is not "property" under the Indiana Responsible Property Transfer Law, as amended ( "IRPTL "), in form and
substance reasonably satisfactory to CRC; (e) a fully executed confirmation of the representations and
warranties set forth in Section 12, in form and substance reasonably satisfactory to CRC; and (f) such other
-2-
Z. \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7.wpd
customary documents and instruments as CRC or the Title Company reasonably may request in connection
with the Closing.
Section 6. City Center Site Closing Documents. At the Closing, CRC shall deliver to Kestner: (a) a fully
executed limited warranty deed conveying to Kestner marketable indefeasible fee simple title to the City
Center Site, free and clear of any and all liens, encumbrances, easements, restrictions, covenants and other
title defects, except the lien of current real estate taxes and assessments not delinquent and the City Center
Site Permitted Exceptions (as defined in Subsection 10(c)); (b) a vendor's affidavit in form and substance
reasonably satisfactory to Kestner and the Title Company; (c) an affidavit that CRC is not a "foreign person ",
in form and substance required by the Code; (d) an affidavit that, to the best of CRC's knowledge, the City
Center Site is not "property" under IRPTL, in form and substance reasonably satisfactory to Kestner; (e) a fully
executed confirmation of the representations and warranties set forth in Section 11, in form and substance
reasonably satisfactory to Kestner; (f) copies of such resolutions, consents, authorizations, and other evidence
as Kestner or the Title Company reasonably may request to establish that the persons executing and
delivering the foregoing documents fully are empowered, and duly are authorized, by all necessary action of
CRC, and that the execution and delivery of such documents, and the conveyance of the City Center Site to
Kestner, duly have been authorized by CRC; and (g) such other customary documents and instruments as
Kestner or the Title Company reasonably may request in connection with the Closing, including, without
limitation, an opinion letter, from counsel to CRC, with respect to the fact that this Agreement is binding upon,
and enforceable against, CRC, and its successors and assigns.
Section 7. Kestner Site Real Estate Taxes. CRC assumes and agrees to pay so much of the
Assessments and real estate taxes assessed for and first becoming a lien against the Kestner Site during the
calendar year in which the Kestner Site Lease expires or is terminated as shall be allocable to CRC by
proration (based upon the number of days remaining in such calendar year after the Kestner Site Lease
expires or is terminated) (the "Kestner Site Current Year Taxes "). Kestner shall pay: (a) both installments of
real estate taxes payable during the calendar year in which the Kestner Site Lease expires or is terminated;
and (b) so much of the Kestner Site Current Year Taxes as shall be allocable to Kestner by proration (based
upon the number of days in such calendar year to and including the date on which the Kestner Site Lease
expires or is terminated). The tax rate in effect for the calendar year in which the Kestner Site Lease expires
or is terminated shall be used for the purpose of such prorations if the applicable tax rate has not been set.
Section 8. City Center Site Real Estate Taxes. Kestner assumes and agrees to pay: (a) all Assessments
becoming a lien against the City Center Site after the Closing Date; and (b) so much of the real estate taxes
assessed for and first becoming a lien against the City Center Site during the calendar year in which the
Closing occurs (collectively, the "City Center Site Current Year Taxes ") as shall be allocable to Kestner by
proration (based upon the number of days remaining in such calendar year after the Closing Date). CRC shall
pay: (a) all Assessments becoming a lien against the City Center Site prior to the Closing Date, and any other
public or private assessments of any nature that have been allocated to or charged against, or that become
a lien on, the City Center Site; (b) both installments of real estate taxes payable during the calendar year in
which the Closing occurs; and (c) so much of the City Center Site Current Year Taxes as shall be allocable
to CRC by proration (based upon the number of days in such calendar year to and including the Closing Date).
The current tax rate shall be used for the purposes of such prorations if the applicable tax rate has not been
set.
Section 9. Conditions to Closing of Kestner Site. The obligations of CRC with respect to acquiring the
Kestner Site shall be subject to the satisfaction or waiver in writing, within 45 days after the date hereof (the
"Due Diligence Period "), or within such other period as is specified pursuant to this Section, of the following:
-3
Z. \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner - Schwinn) v7.wpd
(a) Title Commitment. CRC, at its cost and expense, shall have obtained a title
insurance commitment for the Kestner Site (the "Kestner Site Title Commitment") that: (i) is
issued by the Title Company; and (ii) commits to insure marketable, indefeasible fee simple
title to the Kestner Site in the name of CRC.
(b) Survey. CRC, at its cost and expense, shall have obtained a satisfactory survey of
the Kestner Site prepared by a surveyor acceptable to CRC (the "Kestner Site Survey ") that:
(i) conforms to the Minimum Standard Detail Requirements for an Indiana Land Title Survey;
and (ii) is certified as of a current date.
(c) Examination of Title Commitment and Survey. There are no conditions or defects
disclosed in the Kestner Site Title Commitment or the Kestner Site Survey that substantially
interfere with the incorporation of the Kestner Site into the City Center (the "Kestner Site Title
Defect(s) "); provided that: (i) prior to the expiration of the Due Diligence Period, CRC shall
notify Kestner of any Kestner Site Title Defects, and Kestner shall have 15 days, or such
longer period as CRC may approve in writing, either to: (A) cure or remove the Kestner Site
Title Defects; or (B) provide for the cure or removal of, or for insurance against, the Kestner
Site Title Defects (collectively, the "Kestner Cure Action "); (ii) if Kestner fails to perform the
Kestner Cure Action, then CRC either may elect: (A) to: (1) waive in writing the Kestner Cure
Action, and accept the Kestner Site Title Defect; and (2) proceed to the Closing; or (B) not
to proceed with the Closing, in which case this Agreement shall terminate upon written notice
delivered by CRC to Kestner, and neither CRC nor Kestner shall have any further obligations
hereunder; and (iii) if CRC fails to notify Kestner, within the Due Diligence Period, of any
Kestner Site Title Defects, then CRC shall be deemed to have waived any such Kestner Site
Title Defects. Any exceptions to title reflected in the Kestner Site Title Commitment to which
CRC fails timely to object (except the lien of any mortgage or other security instruments to
be released at or before the Closing), or to which CRC agrees in writing to accept, shall be
deemed to be "Kestner Site Permitted Exceptions ".
(d) Environmental Assessment. CRC, at its cost and expense, shall have obtained a
Phase One Environmental Assessment of the Kestner Site.
(e) Examination of Environmental Assessment. The Phase One Environmental
Assessment shall not indicate that: (a) there is now, or there has been, any contamination
or pollution of the Kestner Site or any groundwater thereunder by any hazardous waste,
material, or substance in violation of any Laws; (ii) there are now, or there have been, any
underground storage tanks located on the Kestner Site; or (iii) there are "wetlands" located
on the Kestner Site.
(f) Other Conditions. As of the Closing Date, no action or proceeding before a court or
other governmental agency or officer shall be pending (and no such action or proceeding
shall be threatened) that would prevent the incorporation of the Kestner Site into the City
Center. There shall be no breach of this Agreement by Kestner, and, as of the Closing Date,
all of the representations and warranties set forth in Section 12 shall be true and accurate in
all respects.
If one or more of the conditions set forth in this Section 9 is not, or cannot be, timely and completely satisfied,
then CRC either may elect: (i) to waive in writing satisfaction of the conditions and to proceed to the Closing;
-4-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7 wpd
or (ii) not to proceed with the Closing, in which case this Agreement shall terminate upon written notice
delivered by CRC to Kestner, and neither CRC nor Kestner shall have any further obligations hereunder.
Section 10. Conditions to Closing of City Center Site. The obligations of Kestner with respect to
acceptance of the City Center Site shall be subject to the satisfaction or waiver in writing, within the Due
Diligence Period, or within such other period as is specified pursuant to this Section, of the following:
(a) Provision of Title Commitment. Within 30 days after the execution of this Agreement,
CRC, at its cost and expense, shall have provided to Kestner a title insurance commitment
for the City Center Site (the "City Center Site Title Commitment ") that: (i) is issued by the Title
Company; and (ii) commits to insure marketable, indefeasible fee simple title to the City
Center Site in the name of Kestner. At the Closing, CRC, at its cost and expense, shall
deliver to Kestner an owner's policy of title insurance with respect to the City Center Site,
issued by the Title Company and conforming with the City Center Site Title Commitment.
(b) Provision of Survey. Within 30 days after the execution of this Agreement, CRC, at
its cost and expense, shall have provided to Kestner a satisfactory survey of the City Center
Site prepared by a surveyor acceptable to Kestner (the "City Center Site Survey ") that:
(i) conforms to the Minimum Standard Detail Requirements for an Indiana Land Title Survey;
and (ii) is certified as of a current date.
(c) Examination of Title Commitment and Survey. There are no conditions or defects
disclosed in the City Center Site Title Commitment or the City Center Site Survey that
substantially interfere with the use of the City Center Site for the construction and operation
of the City Center Bicycle Shop (the "City Center Site Title Defect(s) "); provided that: (i) prior
to the expiration of the Due Diligence Period, Kestner shall notify CRC of any City Center Site
Title Defects, and CRC shall have 15 days, or such longer period as Kestner may approve
in writing, either to: (A) cure or remove the City Center Site Title Defects; or (B) provide for
the cure or removal of, or for insurance against, the City Center Site Title Defects (the "CRC
Cure Action "); (ii) if CRC fails to perform the CRC Cure Action, then Kestner either may elect:
(A) to: (1) waive in writing the CRC Cure Action, and accept the City Center Site Title Defect;
and (2) proceed with the Closing; or (B) not to proceed with the Closing, in which case this
Agreement shall terminate upon written notice delivered by Kestner to CRC, and neither
Kestner nor CRC shall have any further obligations hereunder; and (iii) if Kestner fails to
notify CRC, within the Due Diligence Period, of any City Center Site Title Defects, then
Kestner shall be deemed to have waived any such City Center Site Title Defects. Any
exceptions to title reflected in the City Center Site Title Commitment to which Kestner fails
timely to object (except the lien of any mortgage or other security instruments to be released
at or before the Closing), or to which Kestner agrees in writing to accept, shall be deemed
to be "City Center Site Permitted Exceptions ".
(d) Provision of Environmental Assessment. Within 30 days after the execution of this
Agreement, CRC, at its cost and expense, shall have provided to Kestner a Phase One
Environmental Assessment of the City Center Site.
(e) Examination of Environmental Assessment. The Phase One Environmental
Assessment shall not indicate that: (a) there is now, or there has been, any contamination
or pollution of the City Center Site or any groundwater thereunder by any hazardous waste,
material, or substance in violation of any Laws; (ii) there are now, or there have been, any
-5-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7.wpd
underground storage tanks located on the City Center Site; or (iii) there are "wetlands"
located on the City Center Site.
(f) Right of Entry. Within 15 days after the execution of this Agreement, CRC, at its cost
and expense, shall have provided to Kestner a right of entry with respect to the City Center
Site (the "Right of Entry"), which Right of Entry shall grant to Kestner the right to enter upon
the City Center Site to perform such tests, inspections, examinations, studies, and
investigations as he reasonably deems to be necessary or appropriate for determining the
suitability of the City Center Site for the construction and use of the City Center Bicycle Shop
(the "City Center Site Intended Uses").
(g) Provision of Architectural Standards. Within 15 days after the execution of this
Agreement, CRC shall have provided to Kestner the architectural standards adopted by CRC
with respect to the City Center (the "Architectural Standards ").
(h) Feasibility of Architectural Standards. Construction of the City Center Bicycle Shop
in accordance with the Architectural Standards is economically feasible.
(i) Physical Condition. The necessary or appropriate tests, inspections, examinations,
studies, and investigations performed or caused to be performed by Kestner indicate that the
City Center Site is suitable for the City Center Site Intended Uses (including, without
limitation, that the City Center Site will support the construction of the City Center Bicycle
Shop without the necessity of special or unusually expensive construction). Gas, electricity,
telephone, water, storm and sanitary sewer, and other utility services in adjoining public
rights -of -way or properly granted and recorded utility easements are serving or will serve the
City Center Site at adequate pressures and in sufficient quantities and volumes for the City
Center Site Intended Uses, including, without limitation, that there is sufficient off -site storm
water drainage. The City Center Site enjoys or will enjoy rights of access to and from public
streets, and there is parking available on the City Center Site, adequate for the City Center
Site Intended Uses.
(j) Permits. Kestner shall have obtained, or shall be able to obtain, all public or private
permits, licenses, approvals, and consents required by the Laws, or otherwise necessary or
appropriate for, or in connection with, the City Center Site Intended Uses (the "Required
Permits "). CRC shall cooperate, and shall provide all necessary or appropriate assistance
in connection with obtaining the Required Permits; provided that CRC shall not be obligated
to incur any costs, expenses, or liabilities in connection with such cooperation.
(k) Zoning. The zoning classification of the City Center Site is correct for the City
Center Site Intended Uses.
(1) Other Conditions. As of the Closing Date, no action or proceeding before a court or
other governmental agency or officer shall be pending (and no such action or proceeding
shall be threatened) that would prevent the City Center Site Intended Uses. There shall be
no breach of this Agreement by CRC, and, as of the Closing Date, all of the representations
and warranties set forth in Section 11 shall be true and accurate in all respects.
If one or more of the conditions set forth in this Section 10 is not, or cannot be, timely and completely satisfied,
then Kestner either may elect: (i) to waive in writing satisfaction of the conditions and to proceed to the
-6-
Z \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7.wpd
Closing; or (ii) not to proceed with the Closing, in which case this Agreement shall terminate upon written
notice delivered by Kestner to CRC, and neither CRC nor Kestner shall have any further obligations
hereunder.
Section 11. Representations and Warranties by CRC. CRC represents and warrants to Kestner that:
(a) CRC shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach
of this Agreement; (b) to the best of CRC's knowledge, there is not now, and there has not been, any
contamination or pollution of the City Center Site or any groundwater thereunder by any hazardous waste,
material, or substance in violation of any Laws; (c) to the best of CRC's knowledge, the City Center Site is not
"property" under IRPTL; (d) CRC is a public body organized and existing under the laws of the State of
Indiana; and (e) 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.
Section 12. Representations and Warranties by Kestner. Kestner represents and warrants to CRC that:
(a) Kestner shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a
breach of this Agreement; (b) to the best of Kestner's knowledge, there is not now, and there has not been,
any contamination or pollution of the Kestner Site or any groundwater thereunder by any hazardous waste,
material, or substance in violation of any Laws; (c) to the best of Kestner's knowledge, the Kestner Site is not
"property" under IRPTL; and (d) Kestner has the power to enter into this Agreement and to perform his
obligations hereunder, and this Agreement is the legal, valid, and binding obligation of Kestner.
Section 13. CRC Work. CRC shall: (a) perform the work described on Exhibit C -1, attached hereto and
incorporated herein by reference (the "CRC Work "); and (b) perform the CRC Work in accordance with: (i) the
CRC Work schedule attached hereto and incorporated herein by reference as Exhibit C -2; (ii) in a good and
workmanlike manner; and (iii) in compliance with all Laws.
Section 14. Construction of City Center Bicycle Shop.
(a) City Center Bicycle Shop Construction Plans. Kestner, at his cost and expense, has
submitted to CRC detailed plans and specifications (the "Construction Plans ") for the
construction of the City Center Bicycle Shop, and a detailed schedule for construction of the
City Center Bicycle Shop in accordance with the Construction Plans (the "Construction
Schedule "), which Construction Schedule sets forth the projected dates for commencement
and completion of construction of the City Center Bicycle Shop. The Construction Plans and
the Construction Schedule: (i) are in compliance with the Architectural Standards; (ii) have
been approved by CRC; and (iii) are attached hereto and incorporated herein by reference
as Exhibit D.
(b) Changes to Construction Plans. If Kestner desires to make any material changes
to the Construction Plans or the Construction Schedule, then Kestner shall submit the
proposed changes, in writing, to CRC for approval, which approval shall not be withheld or
conditioned unreasonably. Within 15 days after CRC receives the proposed changes, CRC
shall deliver to Kestner written notice that it approves or rejects the proposed changes;
provided that, if CRC rejects all or any part of the proposed changes, then such notice shall
specify the part or parts that CRC is rejecting, and shall include the specific basis for such
rejection. If Kestner desires to make any changes to the Construction Plans or the
Construction Schedule that are not material, then Kestner shall submit to CRC for its review
the changes to the Construction Plans or the Construction Schedule. Notwithstanding
-7-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7.wpd
anything to the contrary set forth herein, if: (i) CRC requests changes to the Construction
Plans that consist of architectural improvements; (ii) Kestner agrees to such changes; and
(iii) such changes will result in an increase in the cost to construct the City Center Bicycle
Shop, as reasonably determined by Kestner's architect; then the amount that CRC shall pay
to Kestner at the Closing shall be increased by the amount of the increase in the cost to
construct the City Center Bicycle Shop, as reasonably determined by Kestner's architect.
(c) Permits for Construction. Prior to commencing construction, Kestner, at his cost and
expense, shall obtain and submit to CRC for its review the Required Permits for construction
by Kestner of the City Center Bicycle Shop in accordance with the Construction Plans.
(d) Construction of City Center Bicycle Shop. Kestner shall construct the City Center
Bicycle Shop: (i) in a good and workmanlike manner; (ii) in accordance with the Construction
Plans and the Construction Schedule; (iii) in compliance with the Architectural Standards; and
(iv) in compliance with all Laws.
Section 15. Events of Default
(a) Events of Default. It shall be an "Event of Default" if either party fails to perform or
observe any material term, condition, or covenant on its part to be performed or observed
under this Agreement within 30 days after written notice to such party 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 there shall not be an Event of Default so
long as the defaulting party commences to remedy the failure within the 30 days, and
diligently pursues such remedy to completion.
(b) Remedies Upon an Event of Default. Whenever an Event of Default occurs, the
non - defaulting party may take whatever actions at law or in equity that 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; or (iii) enforce the performance or
observance by the defaulting party of any term, condition, or covenant of this Agreement,
including, without limitation, the right to specifically enforce any such term, condition, or
covenant (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,
condition, or covenant of this Agreement). If the non - defaulting party expends any money
in the enforcement of its rights under this Agreement, then the defaulting party shall
reimburse the non - defaulting party for all such expenditures, together with interest at the rate
of 12% per annum.
(c) No Remedy Exclusive. No remedy herein conferred upon or reserved to a
non - defaulting party is intended to be exclusive of any other available remedy or remedies,
unless otherwise expressly stated; instead, each and every such remedy shall be cumulative
and shall be in addition to every other 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 power accruing upon any Event of Default shall impair any such right
or power, or be construed to be a waiver thereof, and any such right or power 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 remedy conferred upon or reserved to it, it shall not be
-8-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7.wpd
necessary for such party to give notice to the defaulting party, other than such notice as may
be required by this Section or by the Laws.
Section 16. inspection. Kestner shall have the right to enter upon the City Center Site in accordance with
the terms and conditions of the Right of Entry. CRC, and its agents, employees, and contractors, shall have
the right to enter upon the Kestner Site at reasonable times to conduct all surveys, tests, inspections,
examinations, studies, and investigations as it reasonably deems to be necessary or appropriate.
Section 17. Mutual Indemnification. CRC shall indemnify and hold harmless Kestner from and against
any and all claims, damages, losses, and expenses (including, without limitation, attorneys' fees) arising from
or connected with: (a) the performance of any tests, inspections, examinations, studies, or investigations on
the Kestner Site by CRC or any party acting by, under, through, or on behalf of CRC; or (b) the breach by
CRC of any term, condition, or covenant on its part to be performed or observed under this Agreement.
Kestner shall indemnify and hold harmless CRC from and against any and all claims, damages, losses, and
expenses (including, without limitation, attorneys' fees) arising from or connected with: (a) the performance
of any tests, inspections, examinations, studies, or investigations on the City Center Site by Kestner or any
party acting by, under, through, or on behalf of Kestner; or (b) the breach by Kestner of any term, condition,
or covenant on his part to be performed or observed under this Agreement.
Section 18. Like -Kind Exchange. CRC acknowledges that Kestner intends for the transaction
contemplated by this Agreement to qualify as a like -kind exchange under §1031 of the Code. CRC shall
cooperate with Kestner as may be necessary or appropriate to assist Kestner in his efforts to complete the
transaction as a like -kind exchange; provided that CRC shall not be obligated to incur any costs, expenses,
or liabilities in connection with such cooperation.
Section 19. Assignment. Neither CRC nor Kestner shall assign this Agreement, without the prior written
approval of the other party; provided that CRC may assign this Agreement to another agency or
instrumentality of CRC, without the prior written approval of Kestner. Notwithstanding any assignment
permitted under this Section, CRC or Kestner, as the case may, shall remain liable to perform all of the terms,
conditions, and covenants on its part to be performed under this Agreement, and the approval by the other
party of any assignment shall not release CRC or Kestner from such performance.
Section 20. Notice. Any notice required or permitted to be given by either party to this Agreement shall
be in writing, and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent
by facsimile, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with
confirmation of receipt, addressed as follows: If To CRC: James Brainard, Mayor, City of Carmel, Indiana, One
Civic Square, Carmel, Indiana 46032, Facsimile: 317 - 844 -3498, With A Copy To: Karl P. Haas, Esq., and
Jennifer R. Shoup, Esq., Wallack Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana
46204, Facsimile: 317 - 231 -9900; and If To Kestner: E. Nicholas Kestner, A /23 ) /0d914 5 P'—
e, rm&/ /,�/ '�6' Z , Facsimile:3 /7 % -'9 7With A Copy To: Charles D. Frankenberger, Esq.,
Nelson & Frankenberger, 3021 East 98th Street, Suite 220, Indianapolis, Indiana 46280, Facsimile:
317 -846 -8782.
Section 21. Right of First Consideration. When CRC selects a developer for the retail facilities to be
located within the City Center (the "Developer"), CRC shall require the Developer: (a) to meet with each of
the Kestner Site Tenants for the purpose of disclosing the plans with respect to the retail facilities to be located
within the City Center; and (b) if a Kestner Site Tenant expresses a desire to lease space that the Developer
has identified as appropriate for the business of such Kestner Site Tenant in a retail facility to be located within
the City Center, to provide to such Kestner Site Tenant first consideration with respect to such space; provided
-9-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7 wpd
that such Kestner Site Tenant is willing and able to lease the space in accordance with lease terms set by the
Developer for the retail facilities to be located within the City Center; and provided further that such Kestner
Site Tenant provides to the Developer financial information that demonstrates, to the reasonable satisfaction
of the Developer, that the Kestner Site Tenant is able to meet its financial obligations under such a lease.
Section 22. Construction on Kestner Site. Notwithstanding anything to the contrary set forth herein, CRC
agrees that, before „,„L.1 1 , 2001, it will not commence any construction on the Kestner Site that
would block the view of the Existing Bicycle Shop from Rangeline Road; provided that CRC may commence
construction on the Kestner Site before .S „, •1 ■ , 2001, so long as the construction does not block
the view of the Existing Bicycle Shop from Rangeline Road.
Section 23. Condemnation. CRC is acquiring the Kestner Site under the threat of condemnation.
Notwithstanding anything to the contrary set forth herein, if either party terminates this Agreement, then CRC
shall not be deemed to have waived its legal rights with respect to the acquisition of the Kestner Site through
condemnation proceedings.
Section 24. Authority. The undersigned person executing this Agreement on behalf of CRC represents
and certifies that: (a) he fully is empowered and duly is authorized by all necessary action of CRC to execute
and deliver this Agreement; (b) he has full capacity, power, and authority to enter into and carry out this
Agreement; and (c) the execution, delivery, and performance of this Agreement duly has been authorized by
CRC. Kestner represents and certifies that he has full capacity, power, and authority to enter into, execute,
deliver, and carry out this Agreement.
Section 25. Binding Effect. Subject to Section 19, this Agreement shall inure to the benefit of, and shall
be binding upon, CRC and Kestner, and their respective successors and assigns.
Section 26. Entire Agreement. This Agreement constitutes the entire agreement between CRC and
Kestner with respect to the subject matter hereof, and may be modified only by a writing signed by both CRC
and Kestner.
Section 27. Severability. The invalidity, illegality, or unenforceability of any one or more of the provisions
of this Agreement shall not affect the validity, legality, or enforceability of the remaining provisions hereof.
Section 28. Governing Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Indiana.
Section 29. Approvals. Whenever the approval of either party is required pursuant to this Agreement,
such approval shall not be withheld, conditioned, or delayed unreasonably. If either party withholds,
conditions, or delays approval unreasonably, then such party shall reimburse the other party for any resulting
costs and expenses that the other party incurs.
Section 30. Additional Retail Space. CRC and Kestner acknowledge and agree that: (a) the Construction
Plans and the Construction Schedule attached hereto as Exhibit D have been approved by both CRC and
Kestner; (b) both CRC and Kestner are in favor of increasing the size of the City Center Bicycle Shop to
accommodate additional space for a retail tenant whose products and /or services are directed toward users
of the Monon Trail (the "Additional Retail Space "); (c) the Construction Plans and the Construction Schedule
may require changes to increase the size of the City Center Bicycle Shop to accommodate the Additional
Retail Space (the "Additional Retail Changes "); (d) both CRC and Kestner shall exercise good faith and act
in a commercially reasonable manner with respect to preparing and approving the Additional Retail Changes,
-10-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwmn).v7.wpd
4
subject to compliance of the Additional Retail Changes with the Architectural Standards; and (e) Kestner has
no obligation to reimburse CRC for any architectural fees previously paid by CRC.
Section 31. Adjusted Purchase Price. The obligations of CRC with respect to acquiring the Kestner Site
shall be subject to the satisfaction or waiver in writing of receipt by CRC of the "Adjusted Purchase Price" from
Hamilton Title Security, LLC ( "Hamilton Title "), as escrow agent under the Escrow Agreement entered into by
and among Hamilton Title, CRC, and AMLI Residential Properties, L.P.
—11-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7.wpd
IN WITNESS WHEREOF, CRC and Kestner have executed this Agreement as of the day and
year first written above.
THE CITY OF CARMEL REDEVELOPMENT
COMMISSION
By:
Printed: 70,5,H
Title: 1'2E5 ref -tuT
E. Nicholas Kestner
-12-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7.wpd
INDEX TO EXHIBITS
EXHIBIT A Kestner Site
EXHIBIT B City Center Site
EXHIBIT C -1 CRC Work
EXHIBIT C -2 CRC Work Schedule
EXHIBIT D Construction Plans and Construction Schedule
-13-
Z: \Documents \Shoup, Jenny \City of Carmel \Kestner \Project Agreement \Project Agreement (CRC and Kestner- Schwinn).v7.wpd
EXHIBIT C -2
CARMEL REDEVELOPMENT COMMISSION
PARCEL NO. 3
Carmel Redevelopment Commission schedule for work to be performed (attached site plan Exhibit C -1)
by the Commission to provide the owner a buildable site.
August 21, 2000 Bid site work.
September 13, 2000 Carmel Redevelopment Commission receives bids.
September 20, 2000 Award of contracts.
October 1, 2000 Start construction.
November 30, 2000 Complete construction.
December 5, 2000 Turn site over to owner's contractors
1111111i
TOWN HOMES
APARTMENTS ABOVE RETAIL
APFROX..11.703 &F.
2 STORY
RETAIL
GRADLE DRIVE
1112=31==1
e 16O
• •
CARMEL CITY CENTER
Current Master Plan
1013 UM E 99,04 JANUAR, I% 11,00
WINONA DRJVE
APARTMENTS ABOVE RETAIL
aF
AFPA0%.
. N e
EX1`571f-4q 21
. _
KEFFNEg
151JILP1f.1 q s
-APARTMENTS ABOVE RETAIL
" APPRCV. X1,32G, SF.
APPROX SQUARE FOOTAGE.
) RETAIL. 93453
, APARTMENTS'. 93,0
CINEMA. 41,380
TOTAL. 228480
LE/USTING BUILDINGS
CSC
Architects
Ever:ears A
loterLort
4111111 _OW 1 11 tr
NIM rim!
RETAIL —)
ri:71 al11111111i10
11111 1 IL
2 STORY
RETAIL WOO SF
221141 •I•
JIuHIwflhIp
MATCIt. ME
wiNoNA DRIVE
AMRTMENTs ABOVE RETAIL
APPP.OX .633
d
—11111111111111111111111111111111—
2 STORY
RETAIL
2 STOkYmpRo
RETAIL 30320
11111111111&
GRADLE DRIVE
F)-1T-
CARMEL CITY CENTER
Current Master Plan
,00 NUMBER 29304 JANUARY IR 2000
PROPERTY LINE
15 SSL
3rd AVENUE SOUTHWEST
CMhC1L ft
FiLL.
Aprocis. a I / 414
C4....gr7 e 07410.11,461
Lunt S
15 SSL
50.14'
f; 107PS' ot
srg LIMrT
u.4Cs
70'
70'
CITY CENTER DRIVE
(-0
CARM
SITE PREPA
LC
TY C
,NTE,R
ATION AND IMPROVEMENTS
10B NUMBER 0930 6 AUGUST, o 0 0
CSO
Architects--
Engineers &
Interiors
te-