4714-18 Confirming Property Tax Abatement Petition: Wharf Partners, LLC

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comply with all the Commitments, and the Applicant's failure to substantially comply with the Commitments was not due to factors beyond its reasonable control. As used in this Agreement, "substantial compliance" shall mean the Applicant's compliance with the following: (a) expenditures of no less than Nineteen Million Three Hundred Fifty Thousand dollars ($19,350,000) of capital investment towards the construction of the mix use building located at 320 East Colfax Avenue, South Bend, IN 46617; (b)this real property project will create at least twenty(20)indirect jobs within three years. 5. Factors Beyond Control. As used in this Agreement, factors beyond the control of the Applicant shall only include factors not reasonably foreseeable at the time of designation application and submission of Statement of Benefits which are not caused by any act or omission of the Applicant and which materially and adversely affect the ability of the Applicant to substantially comply with this Agreement. 6. Repayment of Tax Abatement Savings. If at any time during the term of this Agreement the Applicant shall: (i) be delinquent or in default with respect to any tax payment in St. Joseph County, Indiana; or (ii) cease operations at the facility for which the tax abatement was granted; or(iii) announce the cessation of operations at such facility, then the City may immediately terminate the Economic Revitalization Area designation and associated tax abatement deductions, and upon such termination, require Applicant to repay all of the tax abatement savings received through the date of such termination. 7. Notice/Hearing of Termination. In the event that the City determines that the Economic Revitalization Area designation and associated tax abatement deductions should be terminated or that all or a portion of the tax abatement savings should be repaid, it will give the Applicant notice of such determination, including a written statement calculating the amount due from the Applicant, and will provide the Applicant with an opportunity to meet with the City's designated representatives to show cause why the abatement should not be terminated and/or the tax savings repaid. Such notice shall state the names of the person with whom the Applicant may meet and will provide that the Applicant shall have thirty days from the date of such notice to arrange such meeting and to provide its evidence concerning why the abatement termination and/or tax savings repayment should not occur. If, after giving such notice and receiving such evidence, if any,the City determines that the abatement termination and/or the tax repayment action is proper, the Applicant shall be provided with written notice and a hearing before the SBCC before any final action shall be taken terminating the abatement and/or requiring repayment of tax benefits. The Applicant shall be entitled to appeal that determination to a St. Joseph County Superior or Circuit Court. 8. Repayment. In the event the City requires repayment of the tax abatement savings as provided hereunder, it shall provide Applicant with a written statement calculating the amount due(Statement), and Applicant shall make such repayment to the City within 30 days of the date of the Statement. If the Applicant does not make timely repayment,the City shall be entitled to all reasonable costs and attorneys' fees incurred in the enforcement and collection of the tax abatement savings required to be repaid hereunder. 9. Modification/Entire Agreement. This Agreement and the schedules attached here to contain the entire understanding between the City and the Applicant with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings, inducements, and conditions, expressed or implied,oral or written,except as herein contained. This Agreement may not be modified or amended other than by an agreement in writing signed by the City and the Applicant. The Applicant understands that any and all filings required to be made or actions required to be taken to initiate or maintain the abatement are solely the responsibility of the Applicant.