No. 2047 ratifying/confirming/approving certain actions related to the erskine commons retail project (SSDA)

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A I 2) TRANSFER & ASSIGNMENT OF RIGHTS. Upon written consent of the City, which ILconsent shall not be unreasonably withheld, Developer may transfer any portion of the Project, as shown on the general site plan attached hereto as Attachment 1 and assign its corresponding rights under this MOU and /or the Development Agreement that follows to another party. It is the intention of Developer to develop the Project as a retail shopping area and to add more high- quality retail stores for the citizens of South Bend, Indiana. Notwithstanding any such assignment or transfer, Developer shall remain legally responsible for all of the performance goals and failure to perform penalties outlined in this MOU and, in more detail, in the Development Agreement. Additionally, the assignee would have the same corresponding contractual rights and development obligations as Developer has under this MOU and /or Development Agreement. 3) SITE ASSEMBLAGE. City agrees to facilitate the Project by assisting Developer, if reasonably necessary, in assembling the parcel(s) described at Attachment 2, attached hereto and incorporated herein, ( "Acquired Parcels ") in order to accomplish the Project. Site assemblage as set forth herein, may be accomplished by the City through the South Bend Redevelopment Commission ( "Commission "), g overning body of the City of South B end, Department of Redevelopment. In such case, the parties understand and agree that the Commission shall follow the procedures set forth at Ind. Code § 36- 7 -14 -1, et seq., by which the Commission is bound, including, if necessary, the use of eminent domain in accordance with Ind. Code § 32- 11 -1 -1, et seq and as authorized by Ind. Code §36-7-14-20. "Reasonably necessary" means that the property sought to be acquired by such means is necessary and integral to the Project as described herein, the property will be utilized for a public use and public purpose, the use of the property is consistent with the SSDA Plan and all other reasonable means to purchase the property by the Developer have failed. a) Indemnification. Upon acquisition by the City, Developer, or its designated agent, shall make an offer to purchase the Acquired Parcel, either as separate parcels or as an assembled site, in an amount equal to or greater than the Minimum Acceptable Bid and shall meet or exceed all bid specifications as set by the City in accordance with Ind. Code § 36- 7- 14- 22(c). The "Minimum Acceptable Bid" for purposes of this section shall be the greater of the average of two independent appraisals in accordance with Ind. Code § 36- 7- 14 -22(b) or the City's total cost of purchasing the Acquired Parcels including appraisals, title, survey and any other costs incidental to the City's acquisition. If Developer, for whatever reason, does not submit a bid to purchase the Acquired Parcel, Developer shall pay the City the sum of One Hundred Thousand and 00 /100 Dollars ($100,000.00) ( "Penalty ") within ten (10) days of the bid closing date. If City proceeds with acquisition of the Acquired Parcel and, for whatsoever reason, Developer does not purchase the Acquired Parcel from City, Developer shall reimburse the City in an amount which is the difference between the selling price of the Acquired Parcels received by the City and the total cost of acquisition, including appraisals, title, survey, and closing costs. At the Commission's sole discretion, the Penalty may be waived if the Developer later purchases the Acquired Parcel through a negotiated purchase or shall either be (i) credited to Developer at closing of Developer's purchase of the Acquired Parcels from City or (ii) retained by City as provided herein. Should Developer desire to terminate its obligations to purchase the Acquired Parcels prior to acquisition by the City, Developer shall only be obligated to reimburse the City for its third party out -of pocket expenses, 2 F:\ HOME\ CGREENE \WPData\Projects \SSDA\Anchor Project\M0U\Ver12.040312.doc