Exhibit 10.142
REDEVELOPMENT AGREEMENT
This Redevelopment Agreement (this "AGREEMENT") is made by and between CIN
ARVADA, L.P., a Delaware limited partnership ("SELLER") and INLAND WESTERN
ARVADA, L.L.C., a Delaware limited liability company ("INLAND"), in connection
with the following facts:
A. Seller has conveyed to Inland certain real property described as Xxx
0-X, Xxxxx 0, Xxxxxx Xxxxxxxxxxx Filing Xx. 0 - 0xx Xxxxxxxxx, Xxxxxx xx
Xxxxxxxxx, Xxxxx of Colorado (the "INLAND PARCEL").
B. The Inland Parcel is adjacent to real property owned by Seller and
described as Xxx 0-X, Xxxxx 0, Xxxxxx Xxxxxxxxxxx Filing Xx. 0 - 0xx Xxxxxxxxx,
Xxxxxx xx Xxxxxxxxx, Xxxxx of Colorado (the "SELLER PARCEL"), and the Seller
Parcel, together with the Inland Parcel are sometimes herein collectively called
the "SHOPPING CENTER."
C. Seller anticipates that the Seller Parcel will be redeveloped, and the
parties desire to set forth in this Agreement certain agreements, rights and
obligations affecting the Seller Parcel and the Inland Parcel in connection with
such redevelopment.
Now, therefore, in consideration of the mutual agreements set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. TENANT RELOCATIONS.
A. OFFICE DEPOT. Office Depot, Inc. ("OD") currently occupies space
on the Seller Parcel but has agreed to relocate to space on the Inland Parcel
(the "OD RELOCATION SPACE") no later than 120 days after Seller has delivered
the OD Relocation Space to OD, pursuant to the Amended and Restated Lease dated
November 17, 2003, as it may be further amended (the "OD LEASE"). Inland hereby
grants to Seller a temporary license for access to the OD Relocation Space and
for access over, under and across the Inland Parcel to and from the OD
Relocation Space, for the purpose of completing the landlord improvements
required under the OD Lease. Such license includes without limitation the right
to install connections between the OD Relocation Space and all utility
facilities on the Inland Parcel and in the buildings on the Inland Parcel and
the right to enter the buildings on the Inland Parcel to the extent necessary to
complete such landlord improvements. Inland shall cooperate with Seller in all
reasonable respects in connection with such work, at no out-of-pocket cost to
Inland. For purposes of this Agreement, "out-of-pocket costs" shall be deemed to
include reasonable legal fees charged by Inland's in-house legal department that
are not in excess of market rates for such services.
B. LADY OF AMERICA. Sweet Petunia Corporation, Inc., d/b/a Lady of
America ("LADY") currently occupies space described as Unit X in the building
located on the Inland Parcel at 0000 Xxxx 00xx Xxxxxx (xxx "7310 BUILDING"), in
accordance with a lease dated October 25, 1999, as amended (the "LADY LEASE").
Pursuant to Amendment No. 1 to the Lady Lease, Seller has exercised the
landlord's right to relocate Lady to relocation space on the Inland Parcel more
particularly described in the Lady Lease (the "LADY RELOCATION SPACE"). Seller
shall be responsible for demolishing the demising walls and completing any
landlord work under the Lady Lease. . The Relocation Construction Allowance (as
such term is defined in the Lady Lease) has been paid or credited by Seller to
Inland, and Inland has assumed all rights and obligations of the landlord with
respect to the Relocation Construction Allowance and the Lady Lease. Inland
agrees to use all commercially reasonable efforts to cause Lady to relocate to
the Lady Relocation Space and to vacate its current space within 120 days from
delivery of possession, all in accordance with the Lady Lease. Inland hereby
grants to Seller a temporary license for access to the Lady Relocation Space and
for access over, under and across the Inland Parcel to and from the Lady
Relocation Space, for the purpose of completing any landlord work required under
the Lady Lease with respect to the Lady Relocation Space. Such license includes
without limitation the right to install connections between the Lady Relocation
Space and all utility facilities on the Inland Parcel and in the buildings on
the Inland Parcel and the right to enter the buildings on the Inland Parcel to
the extent necessary to complete such landlord work. Inland shall cooperate with
Seller in all reasonable respects in connection with the foregoing. Seller
reserves to itself and its successors and assigns the right to enforce against
Lady the terms of the Lady Lease insofar as they apply to the space occupied by
Lady at the date hereof or to any unperformed obligations of Lady under the Lady
Lease or to the obligations of Lady under the Lady Lease with respect to the
landlord work required under the Lady Lease. Such rights shall include without
limitation specific performance and all claims in tort or contract, provided,
however, that Seller shall have no right to evict Lady from the Lady Relocation
Space or to terminate the Lady Lease without the consent of Inland, which shall
not be unreasonably withheld or delayed.
2. DEMOLITION OF VACANT SPACE. Seller and Inland agree that Seller shall
have the right, at its election, to demolish the portion of the 7310 Building
indicated as "Possible Demo Area" on EXHIBIT A attached hereto, which area was
excluded from the purchase price paid by Inland for the Inland Parcel. Such
demolition may commence at any time after Lady has vacated such space. If Seller
commences such demolition, Seller shall complete such demolition in a good and
workmanlike manner at Seller's sole cost and in compliance with applicable law
and, upon completion of such demolition, Seller shall reconstruct the easterly
wall of the 7310 Building in accordance with plans and specifications reasonably
acceptable to Inland, provided that Inland shall have sole discretion with
respect to any changes to the basic footprint of the Possible Demo Area as shown
on Exhibit A hereto. The parties agree that the exterior design of the easterly
wall of the 7310 Building shall be consistent with the overall design and
quality of the improvements on the Inland Parcel. Seller shall be responsible
for obtaining all required permits and approvals for the demolition and for such
reconstruction of the easterly wall. Inland hereby grants to Seller a license to
enter upon the Inland Parcel and the 7310 Building as and when necessary to
complete such demolition and reconstruction. Inland shall cooperate with Seller
in all reasonable respects in connection with the foregoing, at no out-of-pocket
cost to Inland. If Seller elects to undertake the demolition, Seller shall
provide written notice to Inland and Seller shall use commercially reasonable
efforts to complete the work within two (2) months following the date of such
notice, If Seller elects not to undertake the demolition described in this
paragraph, Seller shall provide written notice to Inland of such election. If
Seller does not give written notice on or before the third (3rd) anniversary of
this Agreement of its intention to demolish the Possible Demo Area, then Seller
shall be deemed to have elected not to do so. If Seller elects, or is deemed to
have elected, not to undertake such demolition, then Inland shall be required to
purchase from Seller the portion of the 7310 Building that was excluded from the
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purchase price paid by Inland for the Inland Parcel by payment to Seller, within
thirty (30) days after receipt of written notice from Seller, of the sum of
Seven Hundred Fifty Thousand Dollars ($750,000.00) as the purchase price for
said building area. Upon such payment, Seller shall have no further rights or
obligations with respect to such building area.
3. NO-BUILD AREA. In connection with a previous resubdivision affecting
the Seller Parcel and the Inland Parcel, the City of Arvada (the "CITY")
required Seller to establish an area (the "NO-BUILD AREA") along a portion of
the property line between the two parcels, pursuant to the Declaration of
No-Build Area recorded September 4, 2003 at Reception No. F1856413 in the real
property records of Jefferson County, Colorado. In the event Seller determines
that any relocation, modification or elimination of such No-Build Area would
facilitate the redevelopment of the Seller Parcel, Inland and Seller shall
cooperate reasonably and in good faith (at no out-of-pocket cost to Inland) to
obtain the City's consent to such elimination, modification or relocation of the
No-Build Area, and Inland agrees not to object to the same so long as it can be
accomplished at no out-of-pocket cost to Inland and does not materially
adversely affect the Inland Parcel. Inland shall execute such documents as may
be reasonably requested by Seller to facilitate the relocation, modification or
elimination of the No-Build Area.
4. RESUBDIVISION; DEED. The parties acknowledge and agree that if Seller
elects to undertake the demolition under Paragraph 2 above and/or to change or
eliminate the No-Build Area described in Paragraph 3 above, then upon completion
of the subdivision described below, the lot line between the Seller Parcel and
the Inland Parcel shall be adjusted to a location approximately as shown on
EXHIBIT C attached hereto. Seller shall cause such lot line adjustment or
resubdivision to be completed at Seller's cost, and shall timely apply for
appropriate adjustments to the tax parcels to reflect such subdivision. Inland
shall cooperate fully with Seller and shall execute such applications, replats
and other documents as may be reasonably required to accomplish the
resubdivision or lot line adjustment, including obtaining, at Inland's expense,
such consents, joinders and lien releases as may be reasonably required from any
parties holding liens on the Inland Parcel. In connection with such lot line
adjustment or resubdivision and upon completion of the subdivision process,
Inland shall, within ten (10) days after request from Seller, deliver to Seller
a deed for that portion of the Inland Parcel located east of the new lot line.
The deed shall be a special warranty deed and title shall be subject to no
monetary liens or mortgages (releases of the same to be obtained at Inland's
sole expense, provided that Seller shall reimburse the reasonable out-of-pocket
costs incurred by Inland in connection with the preparation and recording of
such releases) and only to matters that were listed as exceptions to title on
the deed from Seller to Inland conveying the Inland Parcel, except that any
property deeded to Seller pursuant to this Paragraph 4 shall become part of the
"Seller Tract" for all purposes under the document entitled Easements with
Covenants and Restrictions Affecting Land ("ECR") recorded concurrently with
this Agreement. Inland agrees that this Agreement and the completion of the lot
line adjustment or Resubdivision by Seller shall be sufficient consideration for
such deed and that Inland is holding title to such property for benefit of
Seller until such deed is recorded. Until the first to occur of the date on
which Inland delivers such deed to Seller, or the date on which Inland acquires
the balance of the Possible Demo Area pursuant to Section 2 above, (a) Inland
shall keep the Possible Demo Area insured under the property and commercial
general liability policies for the rest of the Inland Parcel and improvements
thereon and shall perform the same common area maintenance as it performs for
the rest of the Inland Parcel, (b) Seller shall pay toward the costs of common
area maintenance
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and taxes with respect to the Possible Demo Area the sum of $18,000 per year,
payable in equal monthly installments of $1,500 per month, and (c) Inland shall
arrange for regular inspections of the Possible Demo Area to detect leaks,
security problems, pest infestation and similar matters. If Seller finds it
necessary to do more than one lot line adjustment or resubdivision to accomplish
the work described in Paragraphs 2 and 3 above, this Paragraph 4 shall apply to
each such proceeding and Inland shall provide a deed as described above for each
such proceeding.
5. SELLER'S WORK. Any work on the Inland Parcel performed by Seller
pursuant to Sections 1 or 4 of this Agreement shall be performed in a good and
workmanlike manner. Seller shall obtain and maintain, or cause its contractors
to obtain or maintain, during the course of such work a commercial general
liability insurance policy with a combined single limit of at least $1,000,000
naming Inland as an additional insured, and shall provide a certificate of
insurance evidencing such insurance prior to entry on the Inland Parcel. Upon
completion of the work performed by Seller, Seller shall assign to Inland on a
non-exclusive basis, without recourse or warranty, all warranties issued by
contractors or suppliers with respect to such work, except to the extent Seller
is required to assign such warranties to the tenants, and Seller shall reserve
the right to enforce such warranties in the event of any claims of tenants or
other third parties against Seller in connection with such work.
6. INDEMNITY. Seller agrees to indemnify, defend and hold harmless Inland
from and against any and all liabilities, claims, demands and expenses,
including without limitation mechanics' and materialmen's liens arising out of
Seller's activities on the Inland Parcel in connection with the completion of
the landlord's work in the OD Relocation Space, any entry by Seller into the
Lady Relocation Space and, if commenced by Seller, the demolition and
reconstruction on the 7310 Building and the resubdivision or lot line
adjustments, all as described in this Agreement, excluding, however, from such
indemnity any matters arising out of the gross negligence or willful misconduct
of Inland and excluding any exemplary, punitive or consequential damages.
7. RUN WITH LAND. The rights and obligations of Seller and Inland set
forth in this Agreement and all of the terms, covenants and conditions herein
set forth, shall run with the land comprising the Inland Parcel and Seller
Parcel and shall be binding upon and inure to the benefit of the parties hereto
and their successors and assigns.
8. DEFAULT AND REMEDIES.
A. SELLER'S REMEDIES. If Inland defaults on its obligations
hereunder and such default is not cured by the earlier of the third (3rd)
business day after written notice thereof from Seller, then Seller shall have
all remedies available at law or in equity, including without limitation,
specific performance and injunctive relief. IN NO EVENT SHALL INLAND'S DIRECT OR
INDIRECT MEMBERS, PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER,
DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING
PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER
LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER
BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
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B. PURCHASER'S REMEDIES. If Seller defaults on its obligations
hereunder for any reason except failure by Inland to perform hereunder, and such
default is not cured by the third (3rd) business day after written notice
thereof from Inland, then Inland shall have all remedies available at law or in
equity, including without limitation, specific performance and injunctive
relief. IN NO EVENT SHALL SELLER'S DIRECT OR INDIRECT MEMBERS, PARTNERS,
SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF
THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY
FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE,
EQUITY OR OTHERWISE.
C. ATTORNEYS' FEES. In the event either party hereto employs an
attorney in connection with claims by one party against the other arising out of
this Agreement, the non-prevailing party shall pay the prevailing party all
reasonable fees and expenses, including attorney's fees, incurred in connection
with such claims.
9. MISCELLANEOUS PROVISIONS.
A. HEADINGS. The paragraph, subparagraph and/or other headings of
this Agreement are for convenience only and in no way limit or enlarge the scope
or meaning of the language hereof.
B. INVALIDITY AND WAIVER. If any portion of this Agreement is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement shall not be deemed to
be a waiver of such party's right to enforce against the other party the same or
any other such term or provision in the future.
C. GOVERNING LAW. This Agreement shall, in all respects, be
governed, construed, applied and enforced in accordance with the law of the
State of Colorado.
D. AMENDMENTS; EXHIBITS. This Agreement may be amended or
supplemented only by an instrument in writing executed by the party against whom
enforcement is sought. All exhibits attached hereto are incorporated herein by
this reference for all purposes.
E. TIME. Time is of the essence in the performance of this
Agreement.
F. NO ELECTRONIC TRANSACTIONS. The parties hereby acknowledge and
agree this Agreement shall not be executed, entered into, altered, amended or
modified by electronic means. Without limiting the generality of the foregoing,
the parties hereby agree the transactions contemplated by this Agreement shall
not be conducted by electronic means, except as specifically set forth in the
"Notices" section of this Agreement.
G. NOTICES. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth below. Any
such notices shall, unless
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otherwise provided herein, be given or served (a) by depositing the same in the
United States mail, postage paid, certified and addressed to the party to be
notified, with return receipt requested, (b) by overnight delivery using a
nationally recognized overnight courier, (c) by personal delivery, or (d) by
facsimile transmission during normal business hours with a confirmation copy
delivered by another method permitted under this paragraph. Notice given in
accordance herewith shall be effective upon the earlier to occur of actual
delivery to the address of the addressee or refusal of receipt by the addressee.
Except for facsimile notices as described above, no notice hereunder shall be
effective if sent or delivered by electronic means. A party's address may be
changed by written notice to the other party; provided, however, that no notice
of a change of address shall be effective until actual receipt of such notice.
Copies of notices are for informational purposes only, and a failure to give or
receipt copies of any notice shall not be deemed a failure to give notice.
Inland: Copy to:
Inland Real Estate Acquisitions, Inc. Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000 Xxx Xxxxx, Xxxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx Attention: Xxxxxx Xxxxxxx, Esq.
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 630-218-4900
Seller: Copies to:
CIN Arvada, X.X. Xxxx Holdings
c/o Crow Holdings 0000 XxXxxxxx Xxxxxx, Xxxxx 000
0000 XxXxxxxx Xxxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000
Xxxxxx, Xxxxx 00000 Attention: Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxxxx Telephone: 000-000-0000
Telephone: 000-000-0000 Facsimile: 000-000-0000
Facsimile: 000-000-0000
And:
Xxxxxx Xxxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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And
F. Xxxxxxxx Xxxxxx
Investcorp International, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
H. CONSTRUCTION. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and agree that the normal rule
of construction - to the effect that any ambiguities are to be resolved against
the drafting party - shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
I. FURTHER ASSURANCES. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party, each party agrees to perform, execute and deliver, but without any
obligation to incur any additional liability or expense, any further deliveries
and assurances as may be reasonably necessary to consummate the transactions
contemplated hereby.
J. NO THIRD PARTY BENEFICIARY. The provisions of this Agreement and
of the documents to be executed and delivered pursuant to this Agreement are and
will be for the benefit of Seller and Inland only, and their respective
successors and assigns, and are not for the benefit of any third party, and
accordingly, no third party shall have the right to enforce the provisions of
this Agreement or of the documents to be executed and delivered pursuant to this
Agreement.
SIGNATURES ON NEXT PAGE
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SELLER:
CIN ARVADA, L.P., a Delaware limited
partnership
By: CIN ARVADA GP, L.L.C., a Delaware
limited liability company, General
Partner
By: InvestCenter IV, L.L.C., a Delaware
limited liability company, Manager
By: /s/ F. Xxxxxxxx Xxxxxx
-----------------------------
Name: F. Xxxxxxxx Xxxxxx
Title: Chairman of the Executive
Committee
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INLAND:
INLAND WESTERN ARVADA, L.L.C., a
Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc.
a Maryland corporation, its sole member
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
-------------------------------
Title: Asst. Secretary
------------------------------
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STATE OF NY )
) ss:
COUNTY OF NY )
The foregoing instrument was acknowledged before me this 28 day of April,
2004 by F. Xxxxxxxx Xxxxxx, as Chairman of the Executive Committee of
InvestCenter IV, L.L.C., a Delaware limited liability company, Manager of CIN
Arvada GP, L.L.C., a Delaware limited liability company, General Partner of CIN
ARVADA, L.P., a Delaware limited partnership.
Witness my hand and official seal.
My commission expires: 7/26/05
/s/ Xxxx Xxxxxxx
-------------------------------
Notary Public
XXXX XXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01HO6028348
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES JULY 26, 0000
00
XXXXX XX XXXXXXXX )
) ss:
COUNTY OF DUPAGE )
The foregoing instrument was acknowledged before me this 28th day of April,
2004 by Xxxxxxx Xxxxxx as Asst. Secy of Inland Western Retail Real Estate Trust,
Inc., as sole member of Inland Western Arvada, L.L.C.
Witness my hand and official seal.
My commission expires:
---------------------
/s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------
Notary Public
OFFICIAL SEAL
XXXXXXXX X. XXXXXXXX
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES: 03-12-07
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EXHIBIT A
POSSIBLE DEMOLITION AREA
[GRAPHIC]
PROJ #: 03.0145 EXHIBIT A - POSSIBLE DEMOLITION AREA CLC ASSOCIATE
DATE: 04/16/04 0000 X. XXXXXXX XX.
ARVADA MARKETPLACE SUITE 2000
52ND AND XXXXXXXXX XXXXXXXXX XXXXXXX
XXXXXX, XX XXXXXXXX 00000
P 303 770 5600
F 000 000 0000
XXXXXXXX.XXX
ARCHITECTURE
ENGINEERING PLANNING
LANDSCAPE ARCHITECTURE
LAND SURVEYING
1 OF 1 REDEVELOPMENT AGREEMENT
EXHIBIT B
[INTENTIONALLY OMITTED]
EXHIBIT C
POSSIBLE CHANGES TO LOT LINE
[GRAPHIC]
PROJ #: 03.0145 EXHIBIT C - LOT LINE MODIFICATIONS, NORTH CLC ASSOCIATES
DATE: 04/16/04 0000 X. XXXXXXX XX.
ARVADA MARKETPLACE SUITE 2000
52ND AND XXXXXXXXX XXXXXXXXX XXXXXXX
XXXXXX, XX XXXXXXXX 00000
P 303 770 5600
F 000 000 0000
XXXXXXXX.XXX
ARCHITECTURE
ENGINEERING PLANNING
LANDSCAPE ARCHITECTURE
LAND SURVEYING
1 OF 2 REDEVELOPMENT AGREEMENT
[GRAPHIC]
PROJ #: 03.0145 EXHIBIT C - LOT LINE MODIFICATIONS, SOUTH CLC ASSOCIATES
DATE: 04/16/04 0000 X. XXXXXXX XX.
ARVADA MARKETPLACE SUITE 2000
52ND AND XXXXXXXXX XXXXXXXXX XXXXXXX
XXXXXX, XX XXXXXXXX 00000
P 303 770 5600
F 000 000 0000
XXXXXXXX.XXX
ARCHITECTURE
ENGINEERING PLANNING
LANDSCAPE ARCHITECTURE
LAND SURVEYING
2 OF 2 REDEVELOPMENT AGREEMENT
