Hotel Pre-Development Agreement

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PRE-DEVELOPMENT AGREEMENT

THIS PRE-DEVELOPMENT AGREEMENT (the “Agreement”), entered into this ____ day of ___________, 2013, by and between the CITY OF EVANSVILLE, INDIANA acting by and through its Redevelopment Commission (the “City”) a political subdivision of the State of Indiana, and HCW EVANSVILLE, LLC, a Missouri limited liability company (the “Developer”).

WHEREAS, on June 20, 2012, the Evansville Redevelopment Commission of the City of Evansville, Indiana (the “ERC”) distributed a Request for Qualifications (the “RFQ”) for the purpose of soliciting potential contractors to work with the ERC in connection with the development of a convention center hotel and other related project items (the “Project”), a deal point summary of which is attached hereto as Exhibit “A”; and

WHEREAS, after reviewing the responses to the RFQ, on September 14, 2012, the ERC distributed a Request for Proposals (the “RFP”) to Developer and certain other developers for the purpose of soliciting proposals for development of the Project; and

WHEREAS, on October 30, 2012, Developer submitted its response to the RFP;

WHEREAS, after review of the various submittals, the ERC approved Developer’s response to the RFP on January 23, 2013, and the City and Developer are currently in negotiations of a formal development agreement with respect to the Project (the “Development Agreement”); and

WHEREAS, prior to execution of the Development Agreement, the City and Developer desire that certain work be completed in connection with the Project; and

WHEREAS, the City and Developer hereby agree to the following in connection with work that may be performed by Developer in connection with the Project prior to the execution of the Development Agreement to be approved by ERC and the Evansville City Council (“City Council”);

NOW, THEREFORE, for and in consideration of the premises, and the mutual covenants herein contained, the City and Developer agree as follows:

Section 1. Definitions. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:

“Development Services” means any work or services that have been to date, or may in the future be, performed or provided by the Developer, in cooperation with the City, in connection with the Project, both prior to and from and after the execution of this Agreement, such as, but not limited to, the following:

(a) Coordination, oversight, development and completion of the design, planning, cost estimating and financing for the Project;

(b) Assisting the City in the preparation of the Development Agreement between the City and the Developer related to the Project for submission to the City Council;

(c) Contracting and implementation of the architectural and engineering contracts for the design of the Project; and

(d) Other work performed in connection with the planning and designing of the Project.

“Development Services Fees” means (a) the fee, as described herein, which shall be payable to the Developer for its contributions toward and for providing certain Development Services described herein during the term of this Agreement (the “Developer Fee”) and (b) reimbursement to Developer of third party out-of-pocket expenses incurred by Developer for services provided in connection with the provision of Development Services (the “Third Party Costs”).

Section 2. Provision of Development Services. The Developer agrees to proceed with the provision of Development Services on the Project. Attached hereto as Exhibit “B” is an itemized list of categories and types of Development Services (along with category budget estimates) which have been pre-approved by the ERC on behalf of the City and which may be performed by and the cost thereof reimbursed to Developer as Development Service Fees (the “Pre-Approved Development Services”). Developer may proceed with the Pre-Approved Development Services, subject to reimburse limitations stated in Section 3(b) below, without further approval from the City. In the event Developer chooses to perform items of Developer Services that are not part of the Pre-Approved Development Services, Developer shall obtain prior approval of such services (for reimbursement purposes) in accordance with the procedure described in Section 4(b) below. The parties agree that the category budget estimates are not intended to be limitations on reimbursable amounts for any category, but are simply inserted for illustrational purposes. Reimbursement of Third Party Costs shall only be limited in amount by the Third Party Cost Cap described in Section 3(b) below.

Subject to written comments previously provided by the City to Developer and anticipated future negotiation and compromise, the City and the ERC have reviewed the preliminary plans for the Project submitted by Developer and are in general agreement with the design and layout and hereby consent to Developer moving forward with formal schematic designs and plans based thereon with input from the City, while acknowledging that revisions and adjustments will be necessary to ensure the Project can be constructed within the budget provided for by the parties and will be visually appropriate and appealing.

In exchange for the Development Services Fee described above, Developer agrees that in the event a Development Agreement for the Project is not executed by the parties, Developer will turn over to the City any plans, schematic designs or studies owned by Developer in connection with the Project.

Section 3. City Payment of Development Services Fee. The ERC, on behalf of the City, agrees to pay the following Development Service Fee:

(a) Developer Fee. Subject to the conditions contained herein, within thirty (30) days of execution of this Agreement, City shall pay Developer the Developer Fee, in the amount of Fifty Thousand Dollars ($50,000.00), for Development Services (a) provided by Developer as of the date of this Agreement and (b) as may be provided by Developer through June 30, 2013 (or the earlier execution of a formal Development Agreement. Provided the parties have not executed a Development Agreement related to the Project on or before June 30, 2013 and further provided that the parties are still actively working on the Project and Developer is providing Development Services, the parties shall mutually agree to an amount(s) to be paid to Developer as additional Developer Fee for the additional Development Services to be provided after June 30, 2013.

In the event the parties execute a Development Agreement with respect to the Project, the Developer Fee shall be credited against any developer fee paid to Developer under the Development Agreement. The parties agree to specifically reference this credit in any Development Agreement executed by the parties.

(b) Third Party Costs. The City recognizes that a material portion of the Developer’s work on the Project directly benefits the City and is in furtherance of the Project. The City acknowledges that Developer has incurred to date and will continue to incur Third Party Costs on the Project through such time as the parties execute a Development Agreement or cease negotiations on the a Development Agreement. As additional fees for Developer’s professional services, the City agrees to reimburse the Developer for such Third Party Costs incurred by Developer prior to the execution hereof and through the earlier of (a) the execution of a Development Agreement between the parties related to the Project and City Council approval of the City’s portion of the financing of the Project or (b) delivery of written notice to Developer by the City that the City has elected to abandon, terminate or suspend work on the Project prior to execution of a formal Development Agreement. The parties agree to a cap on the additional professional service fees for reimbursable Third Party Costs in the amount of Two Hundred Thousand Dollars ($200,000.00) (the “Third Party Cost Cap”), unless otherwise agreed to by the parties in writing.

Section 4. Payment Requests and Approval Process.
(a) Payment Requests for Pre-Approved Third Party Costs. For a Third Party Cost (which by definition have already been approved by the ERC) to be eligible for reimbursement the City must be presented with a Payment Request in the form attached hereto as Exhibit “C” containing a detailed invoice, describing in reasonable detail the work performed, the dates such work was performed and containing an acknowledgment that such work is directly related to the Project. Upon receipt of a Payment Request, the ERC shall review and take action to approve the request no later than at its next regular meeting that is scheduled to occur no less than 10 days following ERC’s receipt of the Payment Request (the ERC typically meets the 1st and 3rd Tuesdays of each month). Once approved by ERC, the City agrees to process and make the reimbursement payment to Developer following their normal payment procedures, not to exceed 30 days from approval by ERC.
(b) Approval of New or Additional Third Party Costs. In the event Developer determines it is in the best interest of the Project to perform Development Services that are not described and pre-approved on Exhibit “B” or if Developer expects to incur Third Party Costs in excess of the Third Party Cost Cap, Developer must seek and obtain pre-approval (or ratification) from the ERC of such additional costs before the City shall be obligated to reimburse Developer for the costs incurred. To seek approval of the additional Third Party Costs, Developer shall submit to the ERC, a written request in the form of Exhibit “D” hereto, describing the nature and/or additional amount of Third Party Costs to be incurred. The ERC shall consider and process the request using the same procedure outlined in Section 4(a) above. Assuming the request is approve, Developer shall then submit a Payment Request using the procedure described in Section 4(a) above.
Section 5. Negotiation of the Development Agreement. The City and the Developer covenant and agree that they will work in good faith to negotiate and agree upon the terms of a definitive Development Agreement between the parties related to the Project. Notwithstanding anything herein to the contrary (but subject to the terms herein), neither party shall be obligated to execute a definitive Development Agreement with the other party in connection with the Project. The terms and provisions of any Development Agreement shall be mutually acceptable to each party in their own discretion.

Section 6. Termination. This Agreement shall expire upon the earlier of: (i) the execution of the Development Agreement between the parties in connection with the Project, or (ii) June 30, 2013, unless otherwise mutually extended in writing by the parties (the “Expiration Date”). Upon any voluntary early termination of this Agreement for any reason prior to the Expiration Date, the sole and exclusive remedy of the non-terminating party (including but not limited to remedies for any claims, obligations, liabilities, damages, actions or causes of action, whether known or unknown, contingent or liquidated, whether accrued or unaccrued relating to the Project) shall be: (i) in the case of the City, the right to demand the return of the Developer Fee from Developer and delivery of the any work product related to the Project and developed as part of the Development Services which is under the control of Developer, and (ii) in the case of the Developer, the right to demand (and/or retain) payment of the Developer Fee and all other unpaid Third Party Costs incurred by Developer as of the date of termination by the City. Provided that the other party worked in good faith to negotiate and agree upon the terms of a Development Agreement, following the Expiration Date, regardless of whether a Development Agreement has or will be executed by the parties, neither party shall be entitled to any remedy for failing to execute a Development Agreement related to the Project and Developer shall be entitled to retain its Developer Fee and be fully reimbursed for any Third Party Costs incurred through the Expiration Date. Notwithstanding anything to the contrary contained herein, effective upon payment (or return) of such amounts and the delivery of the work product, the parties mutually release and forever discharge each other from any and all claims, obligations, liabilities, damages, actions or causes of action, whether known or unknown, contingent or liquidated, whether accrued or unaccrued, that have been or could be asserted against either party in connection with or arising out of the Project.

Section 7. Enforcement of Agreement. In addition to the remedies described above, the parties to the Agreement understand, acknowledge and agree that, in the event any party breaches this Agreement, the non-breaching party shall be entitled to receive from the breaching party their attorney fees and expenses incurred in enforcing the terms of this Agreement.

Section 8. Extension of Dates. Any of the dates set forth herein may be extended by mutual written agreement of the City and the Developer.

(Signatures appear on the following page.)

IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written.

THE CITY OF EVANSVILLE, INDIANA,
ATTEST: acting by and through its Redevelopment Commission

By: By:
Edmund Hafer, President

APPROVED AS TO FORM:

HCW EVANSVILLE, LLC

By:
Its:

EXHIBIT “A”
PROPOSED DEAL POINTS BETWEEN THE CITY OF EVANSVILLE AND HCW
What follows is a summary of deal points proposed by HCW for the Evansville convention center hotel development. The following is a summary of the estimated project scope and terms, all of which are subject to approval and incorporation by the parties into a formal development agreement.
Project scope:
• Hotel – 253 Room Double Tree branded hotel. Estimated square footage (SF) 167,400. Public financial contribution not to exceed $20 million.
• Conference Center — Estimated 6,400 SF first floor ballroom with 4,700 SF pre-function space and an additional 3,900 SF service space. The second floor will include 3,500 SF of private meeting space and 3,000 SF of pre-function space. The total amount of ballroom and private meeting space is 21,500 SF. Final cost to be determined (see project budget for estimated cost).
• Parking Garage — 336 space parking garage with ability to expand. Final cost to be determined (see project budget for estimated cost).
• Retail Building — Approximately 26,570 SF two level retail and storage space. Final cost to be determined (see project budget for estimated cost).
• Connector System — Sky walk connector system between the Ford Center, The Centre and the new hotel and retail structure. Final cost to be determined (see project budget for estimated cost).
• Public Infrastructure — City street infrastructure and landscape upgrade. Final cost to be determined (see project budget for estimated cost).
• The Centre – Certain upgrades to The Centre as directed by the City not to exceed $1 Million. Final cost to be determined (see project budget for estimated cost).
• Apartments – A proposed apartment complex of approximately 72 units. Estimated cost $15 million – privately funded.

The financial goal of the project would be to bring it in for an estimated cost of $70 million. Final costs will be determined after plans for the various phases have been reviewed and approved by HCW and the City. Estimated costs based on current projections and initial plan concepts are shown in the preliminary project budget. However, the total public financial investment shall not exceed $37.5 million, unless otherwise agreed to, in the City’s sole discretion, and the total project scope and budget must be agreed upon by the parties.
Project Cost Breakdown:
• Public financial contributions totaling approximately $37.5 million shall to be allocated between its contribution to the hotel (not to exceed $20,000,000) and the balance to fund the conference center, parking garage, retail structure, connector system, renovation of The Centre and other public infrastructure.
• HCW will contribute approximately $32.5 million toward the hotel and apartments.

EXHIBIT “A”, continued
Project Ownership:
The project consists of eight separate components defined above. Project ownership as currently contemplated is as follows:
• HCW will own the hotel and apartments, both the land and buildings, in fee simple title.
• City of Evansville will own the conference center, parking garage, retail building, skywalk connector system, rehabilitated street infrastructure and streetscape.
• The City will enter into a minimum 65 year triple net long-term (must also be of sufficient length to accommodate Developer’s financing) ground lease of the conference center for a nominal fee of $1.00 per year.
• The City will enter into a lease of the parking garage with a combined initial term and option periods of no less than 65 years (must also be of sufficient length to accommodate Developer’s financing). The City and HCW will confer and negotiate the rent structure and term of the parking garage lease.
• With respect to the Retail Building, HCW is willing to manage the first floor of the Retail Building (excluding the second floor portion which is to be retained by the City for use by the Ford Center and other uses as determined by the City) (the “Retail Component”). The City and HCW will confer and negotiate a management agreement or leasing arrangement with HCW for the Retail Component.

HCW Project Responsibility:
• HCW will oversee all construction and development of the project components and receive a 3.5% development fee (components to include, hotel and conference center, parking garage, retail building, skywalk connector system, rehabilitation of the street infrastructure and streetscape and renovation of The Centre).

• HCW controlled entity will operate the hotel, conference center, parking garage, and the residential apartment component. Irrespective of the foregoing, it is understood that HCW will engage an experienced and reputable hotel operator to operate and manage the Hotel to ensure its success.

• In the event that the parties agreement upon a leasing arrangement for the Retail Building, for at least the first five (5) years, HCW would lease and operate a portion of the City’s Retail Building (excluding the portion to be used by the Ford Center) and use its best efforts to manage and lease up the Retail Building (potential lessees to include upscale restaurants, CVB offices, retail merchandising, etc.). The City will retain occupancy of approximately 5,000 square feet of space for Ford Center storage.

• Prior to the execution of a definitive Development Agreement, HCW will provide City such financial information as the City may reasonably request to ensure HCW’s ability to fund its obligations under the Development Agreement.

EXHIBIT “A”, continued

City Project Responsibility:
• City will contribute approximately $20 million toward the hotel and agrees to subordinate to first mortgage lender.

• City will fund the cost of construction for the conference center and ancillary project components, lease HCW the convention center and 253 parking spaces for nominal rates, and grant access easements to the hotel between the connector systems.

EXHIBIT “B”
PRE-APPROVED DEVELOPMENT SERVICES (THIRD PARTY COSTS)
*Architect, Engineering & Testing $130,000
Consulting & Technical Services $ 30,000
(Including: Construction review, etc.)
Franchise Application / Studies $ 15,000
Legal $ 10,000
Travel and Meals $ 15,000
Total anticipated Use of Funds $200,000

*This architectural phase will include, but not limited to, schematic design documents for the hotel, conference center, retail, parking garage and overhead connectors containing the following:
• Site Plan indicating relationships of building components, streets and adjacent structures
• Preliminary Structural Systems basis of design and structural grid, including approximate pier quantity/location
• Architectural Floor Plans with grid and overall dimensions for each level
• Typical guest room floor plans
• Exterior Building Elevations
• Overall Building Sections
• Preliminary 3D views (B&W – rendering(s) by others)
• Preliminary MEP Basis of Design with approximate location/size of RTU’s indicated.

Additionally, the cost of Phase I ESA, Geotechnical Investigation Report, ALTA Survey and other technical information and data necessary to develop the project as proposed.

EXHIBIT C

FORM OF PAYMENT REQUEST TO REIMBURSE THIRD PARTY COSTS

[See the form on the following page.]

THIRD PARTY COST PAYMENT REQUEST

DATE: __________ REQUEST NO._____
REQUEST AMOUNT $_________.__

TO: City of Evansville, Indiana

ATTENTION:
_____________
_____________
_____________
Evansville, IN _______

RE: Request for Reimbursement of Third Party Costs Pursuant To Section 4 of the Pre-Development Agreement Between The City Of Evansville and HCW Evansville, LLC

You are hereby requested under the above referenced Section 4 of the Pre-Development Agreement to pay to HCW Evansville, LLC the following amounts in payment or reimbursement for the following Third Party Costs:

In accordance with this PAYMENT REQUEST, the Developer states the following:

1. These costs have been incurred or have been paid by the Developer and are reimbursable as Qualified Hard Costs under Section 3 of the Pre-Development Agreement.

2. Each item listed on the PAYMENT REQUEST has not been paid or reimbursed from monies previously obtained from the City, nor has any part thereof been included in previous PAYMENT REQUESTS.

3. There have not been filed with or served upon the Developer any notice of any lien, right to a lien or attachment upon or claim affecting the right of any person, firm or corporation to receive payment of the amounts stated in this PAYMENT REQUEST, except to the extent any such lien is being contested in accordance with the Pre-Development Agreement. Lien waivers for costs of labor, materials or other property provided to the Project for which payment is hereby requested will be filed with the City prior to payment of any subsequent PAYMENT REQUEST.

4. No event has occurred and no condition exists which constitutes, or with the passage of time or the giving of notice, or both, would constitute an event of default under the Pre-Development Agreement.

5. All payees are third parties in which the Developer and/or its principals have no ownership interest.

HCW EVANSVILLE, LLC

By:
Its:

STATE OF MISSOURI
COUNTY OF ___________________

On this ___day of ______________, 2013, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came _______________________________, of HCW Evansville, LLC, a Missouri limited liability company, who is personally known to me to be the same person who executed the within instrument on behalf of HCW Evansville, LLC, and such person duly acknowledged the execution of the same to be the act and deed of HCW Evansville, LLC.
IN WITNESS THEREOF, I have hereunto set my hand and affixed my official seal; the day and year last above written.
______________________________________
Notary Public

EXHIBIT D

FORM OF APPROVAL REQUEST FOR
THIRD PARTY COSTS

DATE: __________

TO: City of Evansville, Indiana by and through its Redevelopment Commission

ATTENTION:
_____________
_____________
_____________
Evansville, IN _______

RE: Pre-approval of Qualified Hard Cost

In connection with the provision of Developmental Services pursuant to the Pre-Development Agreement between the City of Evansville and HCW Evansville, LLC, HCW proposes to incur the following expenses:

Description of Service/Expense and Maximum Cost of Service or Expense:

1.__________________________________________________________________

2.__________________________________________________________________

3.__________________________________________________________________

HCW EVANSVILLE, LLC

By:
Its:

Agreed and Accepted:

City of Evansville Redevelopment Commission

By:
Its: