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1200 County-City Building, 227 West Jefferson, South Bend, Indiana 46601-1830 Phone 574/235-9371 Fax 574/235
9021
To: Redevelopment on mi i n and Board of Public Works
From: Ann Kola
Subject: Brownfields Cleanup Revolving Loan Fund -Approval of Loan Agreement,
Promissory Note and Grant Agreement -Environmental Remediation at 1100 Prairie
Avenue
Date: August 2, 2010
The attached documents finalize asub-grant and a loan fi-om the City of South Bend to the South
Bend Redevelopment Commission for Environmental Remediation at the former Studebaker foundry
located at 1100 Prairie Avenue. The sub-grant is in the amount of $160,000 and the Loan is in an
amount not to exceed 5500,000. These funds were awarded to the City of South Bend by the U.S.
EPA. The remediation will address environmental issues associated with the demolition of the
former Foundry. The Board of Public Works gave preliminary approval of the sub-grant and loan on
January 1 1, 2010.
Please contact me at 235-9374 or akolata~southbendin.~~o~~ if you have any questions.
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned South Bend Redevelopment
Commission (the "Borrower"), the governing body of the City of South Bend Department
of Redevelopment under the provisions of Ind. Code § 36-7-14, hereby promises to pay to
the order of the City of South Bend through the Board of Public Works (the "City''), in
immediately available funds, the principal sum of $500,000, with interest at the rate of
0%, during the term of the Brownfields Cleanup Revolving Loan Fund Agreement (the
"Loan Agreement") dated as of August 9, 2010. All of the terms and conditions of the
Loan Agreement are by reference thereto, incorporated herein as part of this Note. The
term of the loan shall be for a period often years between the City and the Borrower
commencing on August 9, 2010 and to be paid in full no later than August 9, 2020,
according to the schedule of payments attached hereto and incorporated herein as Exhibit
A.
This Note is issued pursuant to and secured by the Loan Agreement, and is
entitled to the benefits, and is subject to the conditions thereof. The obligations of the
Borrower to make the payments required hereunder shall be absolute and unconditional
without any defense or right of set-off, counterclaim or recoupment by reason of any
default by the City under the Loan Agreement or under any other agreement between the
Borrower and the City or out of any indebtedness or liability at any time owing to the
Borrower by the City or for any other reason. Reference is hereby made to the Loan
Agreement for a description of the property thereby secured, the nature and extent of the
security for this Note and the right of the holder thereof, the Borrower and the City in
respect thereof, and the provisions for amending the Loan Agreement, to all of which the
holder hereof, by its acceptance hereof, assents.
The principal of this Note is subject to prepayment prior to maturity in the manner
stated in the Loan Agreement.
No recourse shall be had for the payment of the principal or prepayment price of,
or interest on this Note, or for any claim based hereon or on the Loan Agreement, against
any officer, director or member past, present or future, of the Borrower as such, either
directly or through the Borrower, under any constitutional provision, statute or rule of
law, or by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise.
The Borrower hereby unconditionally waives diligence, presentment, protest,
notice of dishonor and notice of default of the payment of any amount at any time payable
to the City under or in connection with this Note. All amounts payable hereunder are
payable with reasonable attorneys fees and costs of collection and without relief from
valuation and appraisal laws.
In any case where the date of payment hereunder shall be a Saturday, Sunday or
legal holiday or a day on which banking institutions are authorized by law to close, then
such payment shall be made on the following business day with the same force and effect
as if made on the date of payment hereunder.
All terms used in this Note which are defined in the Loan Agreement shall have
the meanings assigned to them in the Loan Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
and attested by its duly authorized officers as of , 2010.
Issue Date: , 2010.
CITY OF SOUTH BEND,
For the Use and Benefit of Its
DEPARTMENT OF REDEVELOPMENT
Printed Name
Signature
Date
South Bend Redevelopment Commission
ATTEST:
Printed Name
Signature
Date
South Bend Redevelopment Commission
Exhibit A -Schedule of Payments
August 9, 2010 through August 8, 2016:
Payments deferred. No payments due from the Borrower to the City.
August 9, 2016:
~ 100,000.00 due.
August 9, 2017:
100,000.00 due.
August 9, 2018:
$100,000.00 due.
August 9, 2019:
100,000.00 due.
August 9, 2020:
S 100,000.00 due.
r~ ~ / I
BROWNFIELDS CLEANUP
REVOLVING LOAN FUND GRANT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into on this day of
2010, by and between the City of South Bend, a municipal corporation organized
under the laws of Indiana as a home rule city acting by and through its Board of Public Works,
("City''), and the South Bend Redevelopment Commission ("Commission"), existing and
operating under the authority of Ind. Code § 36-7-14.
RECITALS
A. The City is the recipient of federal funds ("Grant Funds") distributed through the
United States Environmental Protection Agency ("EPA") Brownfield Cleanup Revolving Loan
Fund ("RLF") Program and is authorized to make certain grants from these funds.
B. Grant Funds are to be used to undertake cleanup of brownfields sites, as defined
in Section 101(39) of the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), 42 U.S.C. § 9601(39) ("Brownfield Sites"), by making low interest loans and
grants to parties willing to undertake cleanup of these sites.
C. The City and the Commission have entered into an agreement concerning the
redevelopment of 1 l 00 Prairie Avenue, South Bend, Indiana 46601, an area consisting of
approximately l 9.2 acres of land located within the City ("Property"), more particularly
described in Exhibit A, attached hereto and incorporated herein.
D. The City has agreed to grant to the Commission certain of the Grant Funds which
will be used by the Commission for a portion of the remediation of the Property (the
"Remediation Work"). A "Remediation Work Plan" ("Work Plan") has been prepared and is
attached hereto and incorporated herein as Exhibit B.
E. An eligibility evaluation for the Property was prepared by the Commission on
January 1 1, 2010, which demonstrates qualification of the Property for consideration of funding
through the RLF Program, a copy of which is attached hereto and incorporated herein as Exhibit
C.
F. On January 19, 2010 the City forwarded to EPA its determination that the
Commission is a separate legal entity distinct from the City and is eligible for asub-grant in
connection with an RLF grant from the City and on January 20, 2010 EPA accepted this
determination.
G. The Commission is not responsible for the contamination on the Property and the
due diligence activities conducted prior to the Commission's purchase of the Property satisfy
CERCLA's landowner liability protections and Section l Ol (35)(B)(i)(I) of CERCLA.
H. The City and the Commission carried out all appropriate inquiries into the
previous ownership and uses of the Property in accordance with generally accepted good
commercial and customary standards and practices.
I. On January 20, 2010, the EPA notified the City that they agreed with the City's
Hazardous Waste Site Eligibility Determination and that the Property is a Brownfield Site and
the Commission is not a Potentially Responsible Party ("PRP"), as that term is used in, and in
connection with, the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C. § 9601 et seq.
J. The Property was formerly a manufacturing site and is considered a Brownfield
site, under applicable State law, until such time as the Remediation Work is complete.
K. The Property is not listed, or proposed for listing on the National Priorities List of
the EPA.
L. The Commission is not a generator or transporter of any waste or hazardous waste
located at the Property.
M. The Commission is not and has never been subject to any penalties resulting from
environmental non-compliance at or on the Property nor is the Commission, or, to the best of its
knowledge, its project contractors or subcontractors currently suspended, debarred, or otherwise
declared ineligible for participation in this federal program or from the receipt of these funds.
N. A claim has not been asserted against the Commission for liability under Section
107 of CERCLA, 42 U.S.C. Section 9607.
O. The Commission is not a Potentially Responsible Party under Section 107 of
CERCLA, 42 USC Section 9607, because the Commission has documented the BFPP defense to
CERCLA liability through materials submitted to EPA on January 15 and January 25, 2010.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, it is mutually agreed by and between the parties as follows:
1. Incorporation of Recitals. The parties hereby expressly incorporate each of the
foregoing recitals (Recitals A through O) as if fully set forth in this section.
Grant Funds.
2.1. The City agrees to grant to the Commission the sum of $160,000.00 to be used
by the Commission for the Remediation Work (the `'Project Grant Funds'') subject to the terms
and conditions herein.
2.2. The Project Grant Funds shall be payable to the Commission as reimbursement
for allov~~able expenses incurred by the Commission based upon the progress of the Remediation
Work and in accordance with the approved cleanup project budget (the "Budget''), which is
attached hereto and incorporated herein as Exhibit D. No reimbursement shall be made to the
Commission without the ~~ritten approval of the City. The City shall not advance nor be
obligated to advance any Project Grant Funds to the Commission prior to the receipt of properly
executed lien waivers.
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2.3. The Commission understands and agrees that all of the Project Grant Funds
provided by the City to the Commission shall be used by the Commission towards the cleanup
and remediation of the Property identified in Exhibit A.
2.4. The Commission agrees to use best efforts to keep all expenditures from the
Project Grant Funds within the approved Budget. The Commission shall not exceed any of the
costs enumerated in the approved Budget without the prior written approval of the City.
3. No Obligation of City. The Commission acknowledges that Cooperative Agreement
No. BF-965597-01-2 between the City and the EPA (the "Cooperative Agreement"), is the
source of all funds granted hereunder, and that the City is under no obligation to loan any of its
own funds for this project.
4. Applicable Laws and Regulations. The Commission shall carry out the Remediation
Work in accordance with all applicable state, local and federal laws, regulations, orders, writs,
judgments, injunctions, decrees or awards, including but not limited to the following:
4.1. CERCLA.
4.2. Uniform Administrative Requirements for Giants and Cooperative Agreements to
States aid Local Governme~zts, 40 C.F.R. Part 31.
4.3. The National Oil and Hazardous Substances Contingency Plan, 40 C.F.R. Part
300, ("NCP").
4.4. All Applicable Federal "Cross-Cutting Reguiremems "including:
4.4.1. Those federal requirements agreed between the USEPA and the City
defined by the Cooperative Agreement.
4.4.2. DBE requirements found at 40 C.F.R. Part 33.
4.4.3. OSHA Worker Health & Safety Standard 29 C.F.R. 1910.120.
4.4.4. The Uniform Relocation Act; Historic Preservation Action.
4.4.5. Endangered Species Act.
4.4.6. Permits required by Section 404 of the Clean Water Action.
4.4.7. Contract Work Hours and Safety Standards Act, as amended (40 U.S.C.
327-333).
4.4.8. The Anti Kickback Act (40 U.S.C. 276c).
4.4.9. Section 504 of the Rehabilitation Act of 1973, as implemented by
Executive Orders 11914 and 11250.
4.5. The Davis-Bacon Act o~1931 (CERCLA Section ] 04(g)(1), 40 U.S.C. Section
276a-276a-5 and 42 U.S.C. Section 3222). CERCLA compliance with Davis-Bacon
requires payment of Federal prevailing wage rates for construction, repair or alteration
work funded in whole or in part with Project Grant Funds. The Commission must obtain
recent and applicable wage rates from the U.S. Department of Labor and incorporate
them into the remediation construction contract.
4.6. Executive Orde~~ 13202 - "Preservation of Open Competition and Government
Neutrality toward Government Contractors' Labor Relations on Federal and Federally-
funded Construction Projects."
4.7. Office ofMan~ement and Budget (OMB) Circula~~ No. A-122, "Cost Principles
for Non-Profit Organizations."
4.8. Executive Order°s 12549 and 12689 - "Debarment and Suspension." The
Commission shall ensure that no contract is made with a party or parties listed on the
General Services Administration's List of Parties Excluded from Federal Procurement or
Nonprocurement Programs.
5. Front-End Document Certification. The Commission understands and agrees that any
and all work performed on the Property for which the Project Grant Funds are used and the
receipt of any Project Grant Funds under this Agreement is conditioned upon the Commission's
full compliance with the terms and provisions contained in this Agreement, the Cooperative
Agreement and the document titled "Front-End Document Certification." The Commission shall
ensure that all contracts and subcontracts involving any portion of the Project Grant Funds
comply with the "Front-End Document Certification" and the relevant laws and regulations
referenced therein, including, but not limited to, the required contract provisions listed at 40
C.F.R. § 31.36(1).
6. Environmental Reports and Project Documents.
6.1. The Commission shall provide the City with a copy of the Phase I and Phase II
Environmental Assessment of the Property performed according to the American Society for
Testing and Materials (ASTM) standards (collectively. the "Assessment''). The Commission
shall be responsible for the payment of all costs and expenses related to the Assessment. The
Assessment shall include, but is not limited to site background, the threat posed by the
contamination to public health, welfare and the environment and all past enforcement activities
conducted by any governmental agency, and the site testing results.
6.2. The City shall designate an environmental project manager ("Project Manager")
who shall review and approve of the proposed cleanup and coordinate the work to be performed
using Project Grant Funds. The City's environmental project manager will review the
Commission's remedial planning. design, and engineering documents and review the cleanup
activities as they are on-going to ensure that the cleanup is being completed in accordance with
all local, State, and Federal requirements and is protective of human health and the environment.
6.3. The Commission has caused to be prepared a Community Relations Plan ("CRP'')
with the assistance and cooperation of the City. The CRP includes the following:
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6.3.1. Information on previous public involvement in the planning process for
the former Studebaker plant and for the use of RLF funds.
6.3.2. Notice of the public comment period on the CRP was published in the
South Bend Tribune on February 19, 2010 and February 26, 2010 with the public
comment period ending at 5:00 p.m. on Monday, March 8, 2010.
6.3.3. Procedures for the establishment of a local repository at or near the
Property that includes information provided by the Commission and the City related to
the proposed Remediation Work. The Commission shall supply the City with any
additional information that would assist the City in documenting the Remediation Work.
6.4. After the Commission prepared the CRP, the Commission drafted an Analysis of
Brownfields Cleanup Alternatives ("ABCA") dated February 17, 2010, which includes
information about the Property and contamination issues (i.e., exposure pathways, identification
of contaminant sources, etc.); cleanup standards; applicable laws; alternatives considered; and
the proposed cleanup. The ABCA includes effectiveness, implementability, and the cost of the
cleanup proposed. The ABCA was made available for review and public comment for a period
of not less than 15 days from the first date of publication of the public notice.
6.5. Following the public comment period described above, in which no public
comments were received, the Commission prepared a document describing the final analysis of
brownfield cleanup alternatives (the ``Decision Memo"). The Decision Memo included a
statement that the Commission did not receive any public comments on the ABCA and selected
the remedial approach proposed in the ABCA. The EPA approved the Decision Memo on March
26, 2010.
6.6. After the ACBA was finalized, the Commission prepared a scope of work
containing detailed design and construction plans and specifications for the Remediation Work
including a budget and work schedule; a health and safety plan (OSHA 1910-120 - 126) and a
quality assurance project plan which sets forth the manner and method of collecting samples to
assure the complete removal of all hazardous substances that are located at the Property and are
to be removed as a part of the Remediation Work (collectively, such documents are referred to as
the "Project Documents") and has submitted same to the City for approval.
6.7. Prior to the initiation of the Remediation Work, including any cleanup activities,
the Commission must provide to the City copies of all of the state required remedial planning
documents and the state's approval of those documents, if required.
6.8. The awarding of this Grant shall be subject to:
6.8.1. Opinion of the Commission's counsel that the Commission is in good
standing and that all documents executed by the Commission are valid and enforceable in
accordance with their respective ternls.
6.8.2. Approval of this Agreement by the Commission, agreeing to its terms and
authorizing the Commission to accept the Project Grant Funds.
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6.8.3. Evidence by the Commission that no outstanding taxes, fees, charges,
mortgages, liens, encumberances or other assessments have been filed or are recorded
against the Property.
6.8.4. Evidence of insurance coverage with limits of liability as determined by
the City's Project Manager. All insurance coverage required by this section shall remain
in full force and effect during the terns of this Agreement.
6.8.5. Identification of the prime contractor and subcontractor(s) selected by the
Commission for the Remediation Work.
6.8.6. The City's receipt of cleanup project cost breakdown based upon estimates
and prices supplied by the Commission.
6.9. The City reserves the right to waive any or all of the requirements of Section 6.8.
7. Performance of Work and Payment.
7.1. The Commission shall commence work on the Remediation Work within 30 days
from the date of execution of this Agreement and shall complete and perform all of the
Remediation Work by December 3l, 2011 in accordance with the approved schedule of work
("Schedule of Work") attached hereto and made a part hereof as Exhibit E.
7.2. All Remediation Work performed pursuant to this Agreement and with Project
Grant Funds shall be performed in a good and workmanlike manner.
7.3. The City shall disburse the Project Grant Funds to the Commission no later than
30 days following receipt of a draw request (which draw requests shall not be made more
frequently than monthly) and satisfactory documentation of expenditures for the Work. The City
and the Commission agree not to unreasonably delay or withhold delivery or payment of draw
requests.
7.4. The City may withhold up to ten percent (10%) of each payment requested as a
retainage until the Commission has completed the Remediation Work.
7.5. All material changes or modifications to the Remediation Work or the Project
Documents shall be approved in writing by the City prior to such change or modification
becoming effective. All additional costs incurred, as the result of any change orders shall be the
responsibility of the Commission. In the event that unforeseen conditions are discovered during
the implementation of the Remediation Work, the Commission reserves the right to revise the
cleanup action and the Project Documents.
7.6. The Commission, at its sole cost and expense, and from sources other than Grant
Funds, shall be responsible for obtaining all permits, licenses, approvals, certifications and
inspections required by federal, state or local law and to maintain such permits, licenses,
approvals, certifications and inspections in current status during the term of this Agreement.
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7.7. The Commission agrees to protect, indemnify, defend and hold harmless, the
City, its officers, administrators, agents, servants, employees and all other persons or legal
entities to whom the City maybe liable from, for or against any and all claims, demands, suits,
losses, damages, judgments, costs and expenses, whether direct, indirect or consequential and
including, but not limited to, all reasonable fees, expenses and charges of attorneys and other
professionals, court costs, and other reasonable fees and expenses for bodily injury, including
death, personal injury and property damage, arising out of or in connection with the performance
of any work or any responsibility or obligation of the Commission as provided herein and caused
in whole or in part by any act, error, or omission of the Commission, its agents, servants,
employees or assigns.
7.8. The Commission shall erect a sign on the Property stating that the Remediation
Work is being financed in part by Grant Funds and the City and providing the appropriate
contacts for obtaining information on activities being conducted at the site and for reporting
suspected criminal activities. The sign erected on the Property shall comply with all
requirements of the state and local law applicable to on-premise outdoor advertising as well as
40 CFR Part 35, Subpart O (§35.6105(a)(2)(ii)).
7.9. If the Commission sells or transfers the Property prior to completion of the
Remediation Work, then the Commission shall immediately repay the entire amount of Project
Grant Funds advanced to the Commission to the City.
7.10. The Commission shall:
7.10.1. Notify the City when the Remediation Work is complete. The notice
shall contain certification or documentation that the Remediation Work is complete and
has been performed in accordance with the terms of this Agreement. This notice shall
summarize the actions taken, the resources committed and the problems encountered in
completion of the Remediation Work, if any, and shall be submitted to the City for
review and approval before it is finalized.
7.10.2. Perform all of its obligations and agreements under this Agreement, the
Cooperative Agreement and any other agreements or instruments to which the
Commission is a party and which relate to the Project Grant Funds and the Remediation
Work.
7.10.3. Promptly give notice in writing to the City of any litigation pending or
threatened against the Commission or the Property arising from the performance of the
Remediation Work.
8. Inspection and Riyht to Stop Work. The City shall have the right, but not the
obligation, to enter the Property and inspect the Remediation Work at all times during the
execution of the Work in accordance with the Plan, and within 30 days following completion of
the Work.
8.1. The City shall select a "Site Manager'' to review, oversee and inspect the work in
coordination with the Project Manager.
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8.2. The City may stop the Remediation Work if it is not satisfactory or not
substantially in accordance with the Work Plan and order Remediation Work replacement at the
Commission's expense.
8.3. The City is not obligated to make any disbursements unless and/or until all
Remediation Work is satisfactorily completed and in accordance with the Work Plan as
reasonably determined by the City and Site Manager.
8.4. The City shall have the right, but not the obligation, to take any reasonable and
appropriate action under the circumstances to cure any violation for the provisions of this
Agreement upon written notice of at least 30 days to the Commission and an opportunity to cure.
The notice shall include a clear description of the proposed cure and the approximate cost of the
same.
8.5. The Commission recognizes that the Site Manager has the ability to stop the
Remediation Work immediately in the event of an imminent and substantial threat to human
health associated with it.
9. Representations and Warranties.
9.1. The City and the Commission represent and warrant to each other that:
9.1.1. The Property is not listed or proposed for listing on the National Priorities
List of the EPA.
9.1.2. None of the parties has disposed of hazardous substances, pollutants or
contaminants at or to the Property.
9.1.3. The making and performance by the parties of this Agreement does not
violate any provision of federal, state or local law, or result in a breach of or constitute a
default under any agreement, indenture or other instrument to which the parties maybe
bound.
9.1.4. This Agreement has been duly authorized by the governing bodies of each
entity, and has been validly executed and delivered, and is valid and binding on the
parties.
9.1.5. There are no pending or threatened actions or proceedings before any
court or administrative agency that may adversely affect the financial condition or
operation of the parties.
9.2. The Commission represents and warrants as follows:
9.2.1. The Commission certifies that it is not now, and has not in the past, been
subject to any penalties resulting from environmental non-compliance at the Property.
9.2.2. Neither the Commission nor its respective officers or contractor(s)
retained to conduct the Remediation Work, have within a 3 year period preceding this
Agreement been, convicted of or had a civil judgment rendered against them for (i) fraud
or commission of a criminal offense in connection with obtaining, attempting to obtain,
or performing a public transaction or contract under a public transaction, (ii) violation of
federal or state antitrust laws, or (iii) embezzlement, theft, forgery, bribery, falsification
or destruction of records, making false statements or receiving stolen property.
9.2.3. Neither the Commission nor its respective officers or contractor(s)
retained to conduct the Remediation Work are presently indicted for or otherwise
criminally or civilly charged by a public entity with commission of any of the offenses
enumerated under Section 9.2.2 hereof.
9.2.4. The Commission has not within the preceding 3 years had a public
transaction terminated for cause or default.
9.2.5. The Commission is a unit of government validly existing under Indiana
Code 36-7-14 and has all requisite power and authority to hold title to the Property and to
execute, deliver and perform all of its obligations under this Agreement and the Grant
documents.
9.2.6. The Commission is not a generator or transporter of any contamination
located at the Property.
9.2.7. The Commission is not a Potentially Responsible Party under Section 107
of CERCLA, 42 USC § 9607 because the Commission has demonstrated the BFPP
defense to CERCLA liability through material submitted to EPA on January 15 and
January 25, 2010.
9.3. All representations and warranties shall survive the execution of this Agreement.
10. Maintenance of Records.
10.1. The Commission agrees to maintain financial and programmatic records
pertaining to all matters relative to this Agreement in accordance with generally accepted
accounting principles and procedures and to retain all of its records and supporting
documentation applicable to this Agreement for a period of 3 years after the completion of the
Remediation Work except as provided in Section 10.2.
10.2. If any litigation, claim, negotiation, audit or other action involving the records has
been started before the expiration of the three-year period, the records must be retained until
completion of the action and resolution of all issues which arise from it, or until the end of the
regular three-year period, whichever is later.
10.2.1. All such records and supporting documents shall be made available, upon
request, for inspection or audit by the City or its representatives.
10.2.2. The Commission must receive permission from the City, in writing, prior
to destroying any of these records or documents.
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11. Right to lnsgect and/or Audit. The Commission agrees to permit the City or its
designated representative to inspect and/or audit its records and books relative to this Agreement
at any time during normal business hours and under reasonable circumstances, upon reasonable
notice and to copy them from any information that the City desires relevant to this Agreement.
The City shall provide written notice to the Commission prior to the execution of this provision.
The Commission agrees to deliver the records or have the records delivered to the City or its
designated representative at an address designated by such party within the South Bend city
limits. If the City or its representative finds that the records delivered by the Commission are
incomplete, the Commission agrees to pay the City or its representative's costs to travel to the
Commission's office or other location where the books or records are located to audit or retrieve
the complete records. In addition, all grant related documents are subject to 40 C.F.R. Section
31.42(e).
12. Reporting.
12.1. The Commission shall provide the City with the Commission's Dun and
Bradstreet Data Universal Numbering System (DUNS) number prior to commencement of the
Remediation Work.
12.2. The Commission shall submit a quarterly performance report to the City on or
before the fifth (Sty') day of each of the following months: April, July, October and January.
Each report shall include:
12.2.1. Documentation of the progress at meeting performance outcomes/outputs
for the Remediation Work during the quarter (including the percentage of the
Remediation Work complete at the end of the quarter), a narrative summary of quarterly
activities, a project time line and an explanation for any slippage in meeting established
output/outcomes.
12.2.2. DUNS numbers for each and every contractor, subcontractor and/or
vendor performing any of the Remediation Work.
12.2.3. An update on any project milestones occurring during the quarter.
12.2.4. The number and types of jobs created during the quarter and the number
of hours worked during the quarter. The Commission shall consult "EPA Summary of
OMB`s December 18. 2009 Updated Guidance on Reporting of Job Estimates", which is
attached as Exhibit F, for guidance on this reporting requirement.
12.2.5. A budget recap summary page with following headings
Current Approved Budget
ii. Costs Incurred this Quarter
iii. Costs Incurred to Date
iv. Total Remaining Funds
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v. Private investment during the quarter
12.3. The Commission need only submit one quarterly report to the City pursuant to
Section 12.2 to satisfy the Commission's reporting obligations under this Agreement and the
Loan Agreement executed concurrently herewith (the "Loan Agreement''). Each quarterly report
must include all Remediation Work on the Project, whether carried out with Grant Funds
pursuant to this Agreement or with funds obtained pursuant to the Loan Agreement.
12.4. The Commission shall ensure that all contractors, subcontractors or any other
parties performing the Remediation Work submit reports as necessary to allow Commission to
comply with the notice requirements in Section 12.2.
12.5. The Commission shall furnish such other information as the City may from time
to time reasonably request.
13. Events of Default.
13.1. In the event of a default of any of the terms or conditions of this Agreement, the
entire amount of Project Grant Funds disbursed to the Commission shall become immediately
due and payable without the necessity of demand from the City. The Commission shall be
deemed to be in default under this Agreement upon the occurrence of any one or more of the
following events (each an "Event of Default"):
13.1.1. The Commission assigns this Agreement or any Project Grant Funds
advanced hereunder or any interest herein to a third party or if the Property or any interest
is conveyed, assigned or otherwise transferred without the prior written consent of the
City.
l 3.1.2. Any representation or warranty made herein or in any report, certificate,
financial statement or other instrument furnished in connection with this Agreement shall
prove to be false in any material respect.
13.1.3. The Commission defaults in the performance of any term, covenant or
condition to be performed hereunder and such default is not remedied within 30 days,
unless a longer period of time is reasonably required to cure the default, from and after
receipt of written notice by certified mail, return receipt requested, from the City to the
Commission, specifying said default, or, if such default cannot be remedied within that
period and remedial effort is not commenced within that period and diligently and
continuously pursued, the City shall have the right to proceed by appropriate judicial
proceedings to enforce perfornance or observation of the applicable provisions of this
Agreement and/or terminate this Agreement and recover damages from the Commission
to the extent allowed by law.
13.1.4. Any proceeding involving the Commission or the Property, commenced
under any bankruptcy or reorganization arrangement, probate, insolvency, readjustment
of debt, dissolution or liquidation law of the United States, or any state, but if such
proceedings are instituted, no Event of Default shall be deemed to have occurred
11
hereunder unless the City either approves, consents to, or acquiesces in such proceedings,
or such proceedings are not dismissed within 60 days.
13.1.5. An order, judgment or decree is entered, without the application, approval
or consent of the City, by any court of competent jurisdiction approving the appointment
of a receiver, trustee or liquidator of the Commission of all or a substantial part of its
assets, and such order, judgment or decree shall continue in effect for a period of 60 days.
14. Remedies of the City. Upon the occurrence of an Event of Default, the City may
exercise, singly or in combination, any or all of the rights, powers and privileges set forth in this
Agreement, the Cooperative Agreement and any other agreements or instruments to which the
City is a party and which relate to the Project Grant Funds and the Remediation Work, at law or
in equity, at any time and from time to time.
15. Secure Site. In the event of Default, the Commission shall secure the Property. The cost
of securing the Property is the responsibility of the Commission. If the Commission fails to
secure the Property within 24 hours of a Notice of Default, the City may, but shall not be
required to do so, at the Commission's sole cost.
16. Interpretation of Contract Documents. To the extent that it is determined that a
conflict exists between this Agreement and the Cooperative Agreement, all such agreements and
documents shall be construed in such manner as will give the maximum effect to each but, as to
any conflict which may not be so resolved, the terms and conditions of the Cooperative
Agreement shall control.
17. Miscellaneous.
17.1. No delay or failure of the City shall affect such right, power or privilege; nor shall
any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce
such a right, power or privilege affect such right, power or privilege. The rights and remedies of
the City hereunder are cumulative and not exclusive. Any waiver, permit, consent or approval of
any kind of the City of any breach or default hereunder, or any such waiver of any provisions or
conditions hereof, must be in writing and shall be effective only to the extent set forth in writing.
17.2. The Commission shall not assign or attempt to assign directly or indirectly, any of
its rights under this Agreement or under any instrument referred to herein without the prior
written consent of the City. The Commission shall not assign all or any portion of the Property
made the subject of this Agreement without the prior written consent of the City.
17.3. This Agreement is not intended to create or vest any rights in any third party or to
create any third party beneficiaries.
17.4. All amendments to this Agreement shall be in writing and signed by both parties
hereto.
17.5. It is expressly understood that a failure or delay on the part of the Commission in
the performance, in whole or in part, or any of the terms of this Agreement, if such failure is
attributable to an Act of God, fire, flood, riot, insurrection, embargo, emergency or governmental
12
orders, regulations, priority, or other limitations or restrictions, or other similar unforeseen
causes beyond the reasonable control of such party, the failure or delay shall not constitute a
breach or Event of Default under this Agreement; however, the Commission shall use its best
effort to insure that the Remediation Work is completed in a reasonable time without
unnecessary delay.
17.6. The provisions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
17.7. No failure of either party to exercise any power or right given it hereunder or to
insist on strict compliance by the other party with its obligations hereunder, and so custom of
practice of the parties at variance with the terms hereof shall constitute a waiver of the other
party's right to demand at any time exact compliance with the terms hereof.
17.8. Any notice, consent, waiver, request or other communications required or
permitted to be given under this Agreement shall be in writing and shall be deemed given (a) on
the same day if delivered personally, (b) 3 business days after mailed if delivered by certified or
registered mail, return receipt requested, postage prepaid, (c) one (1) business day after
dispatched if dispatched by nationally recognized overnight delivery service, or (d) on the same
day if sent by telecopier (subject to obtaining a confirmation receipt), in any event, address to the
party's address as follows:
TO THE CITY: City of South Bend
Board of Public Works
227 West Jefferson Blvd.
1300 County City Building
South Bend, IN 46601
Attention: Gary Gilot (or successor)
Director of Public Works
Telecopier Number: 574-235-9171
TO THE COMMISSION: South Bend Redevelopment Commission
227 West Jefferson Blvd.
120 County City Building
South Bend, IN 46601
Attention: Ann Kolata (or successor)
Senior Redevelopment Specialist
Telecopier Number: (574) 235-9021
With copies to: City Attorney
227 West Jefferson Blvd.
1400 County City Building
South Bend, IN 46601
13
Either party may, upon prior notice of 10 calendar days given as set forth above, change
its address for all subsequent notices.
17.9. All exhibits mentioned herein shall be deemed incorporated herein by reference as
though fully set forth herein.
17.10. The terms and conditions of this Agreement, all exhibits attached hereto and any
documents expressly incorporated by reference represent the entire agreement between the
parties with respect to the subject matter of this Agreement. This Agreement may not be
amended or modified without the written consent of the parties hereto.
17.11. If any part of this Agreement is determined to be illegal or unenforceable, all
other parts shall be given effect separately and shall be in effect.
17.12. This Agreement, the Cooperative Agreement and any other agreements or
instruments to which the City and/or the Commission is a party and which relate to the Project
Loan Funds and the Remediation Work, shall be construed in accordance with and governed by
the laws of the State of Indiana except where superseded by federal statutes or regulations.
17.13. The City and the Commission have engaged in negotiations, with opportunity for
the advice and benefit of counsel, over the terms of this Agreement and no party has acted as the
exclusive drafter of the language of this Agreement and no inference or presumption or
application of a rule of contract construction should be made based upon the premise that one
party acted more than the other party as the draftsperson of these agreements.
17.14. This Agreement may not be amended, altered or modified unless the party against
whom enforcement of any waiver, modification or discharge is sought does so in writing.
17.15. This Agreement will become effective when approved by the Commission and
signed by its President and Secretary or Vice President and approved and signed by the Board of
Public Works.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed in the name and
on behalf of each of them (acting individually or by their respective officers or appropriate legal
representatives, as the case maybe, hereunto duly authorized) as of the day and year first written
above.
[SIGNATURE PAGES FOLLOW]
14
COMMISSION:
City of South Bend, Department of Redevelopment
South Bend Redevelopment Commission
By:
By:
Signature
Signatur°e
Date
15
CITY:
City of South Bend, Indiana
Board of Public Works
By:
Gary A. Gilot, P.E.
By:
Donald E. Inks
By:
Cai°l P. Littrell
Date
16
~~ r, C
BROWNFIELDS CLEANUP
REVOLVING LOAN FUND LOAN AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into on this
day of , 2010, by and between the City of South Bend, a municipal
corporation organized under the laws of Indiana as a home rule city acting by and
through its Board of Public Works, ("City"), and the South Bend Redevelopment
Commission ("Commission"), existing and operating under the authority of Ind. Code §
36-7-14.
RECITALS
A. The City is the recipient of federal funds ("Grant Funds") distributed
through the United States Environmental Protection Agency ("EPA") Brownfield
Cleanup Revolving Loan Fund ("RLF") Program and is authorized to make certain loans
from these funds.
B. Grant Funds are to be used to undertake cleanup of brownfields sites, as
defined in Section 101(39) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601(39) ("Brownfield Sites"),
by making low interest loans and grants to parties willing to undertake cleanup of these
sites.
C. The City and the Commission have entered into an agreement concerning
the redevelopment of 1100 Prairie Avenue; South Bend, Indiana 46601, an area
consisting of approximately 19.2 acres of land located within the City ("Property"), more
particularly described in Exhibit A attached hereto and incorporated herein.
D. The City has agreed to loan to the Commission certain of the Grant Funds
which will be used by the Commission for a portion of the remediation of the Property
(the "Remediation Work"). A "Remediation Work Plan" ("Work Plan") has been
prepared and is attached hereto and incorporated herein as Exhibit B.
E. An "Eligibility Evaluation for a Cleanup Application for the Property
Located at 1100 Prairie Avenue" vas prepared by the Commission on January 11, 2010,
which demonstrates qualification of the Property for consideration of funding through the
RLF Program, a copy of which is attached hereto and incorporated Herein as Exhibit C.
F. On January 19, 2010 the City forwarded to EPA its determination that the
Commission is a separate legal entity distinct from the City and is eligible for a loan from
the City in connection with the Grant Funds and on January 20, 2010 EPA accepted this
determination.
G. The Commission is not responsible for the contamination on the Property
and the due diligence activities conducted prior to the Commission's purchase of the
Property satisfy CERCLA's landowner liability protections and Section 101(35)(B)(i)(I)
of CERCLA.
H. The City and the Commission carried out all appropriate inquiries into the
previous ownership and uses of the Property in accordance with generally accepted good
commercial and customary standards and practices.
I. On January 20, 2010, the EPA notified the City that they agreed with the
City's Hazardous Waste Site Eligibility Determination and that the Property is a
Brownfield Site and the Commission is not a Potentially Responsible Party ("PRP"), as
that teen is used in, and in connection with, the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.
J. The Property was formerly a manufacturing site and is considered a
Brownfield site, under applicable State law, until such time as the Remediation Work is
complete.
K. The Property is not listed, or proposed for listing on the National Priorities
List of the EPA.
L. The Commission is not a generator or transporter of any waste or
hazardous waste located at the Property.
M. The Commission is not and has never been subject to any penalties
resulting from environmental non-compliance at or on the Property nor is the
Commission, or, to the best of its knowledge, its project contractors or subcontractors
currently suspended, debarred, or otherwise declared ineligible for participation in this
federal program or from the receipt of these funds.
N. A claim has not been asserted against the Commission for liability under
Section 107 of CERCLA, 42 U.S.C. Section 9607.
O. The Commission is not a Potentially Responsible Party under Section 107
of CERCLA, 42 USC Section 9607, because the Commission has documented the BFPP
defense to CERCLA liability through materials submitted to EPA on January 15 and
January 25, 2010.
P. It is anticipated that the Loan Funds will be repaid to the City from Tax
Increment Funds.
Q. The Commission is executing concurrently herewith a Promissory Note in
the fornl of Exhibit D, attached hereto and incorporated herein ("Promissory Note").
NOW, THEREFORE, in consideration of the mutual promises contained herein, it
is mutually agreed by and between the parties as follows:
1. Incorporation of Recitals. The parties hereby expressly incorporate each of the
foregoing recitals (Recitals A through Q) as if fully set forth in this section.
2
2. Loan.
2.1. The City agrees to make a loan to the Commission in an amount of up to
Five Hundred Thousand and 00/100 Dollars ($500,000.00) ("the Loan") to be used by the
Commission for the Remediation Work (the "Project Loan Funds") subject to the terms
and conditions herein.
2.2. The Promissory Note shall be executed and delivered by the Commission
to the City concurrently with the execution of this Agreement.
2.3. The Project Loan Funds shall be used exclusively to complete the
Remediation Work described in the Work Plan summarized as follows:
• Preparation of Work Plan;
• Preparation of Site Health and Safety Plan;
• Soil remediation and confirmation soil sampling;
• Asbestos removal and disposal;
• Underground storage tank removal and disposal;
• Regulated nonhazardous and hazardous solid and liquid waste removal
(including foundry waste, universal waste, wood block flooring,
railroad ties, contaminated concrete, and mercury and PCB-containing
materials); and
• Preparation of final report.
2.4. The City and the Commission agree and understand that the total cost of
performing the Remediation Work is estimated to be at least Six Hundred Sixty
Thousand and 00/100 Dollars (5660,000) as described in the Work Plan.
2.5. The Commission may, without premium, prepay any portion of the
principal on the Loan prior to maturity.
3. No Obligation of City. The Commission acknowledges that Cooperative
Agreement No. BF 965597-O1-2 between the EPA and the City (the "Cooperative
Agreement') is the source of all funds loaned hereunder, and that the City is under no
obligation to loan any of its own funds for this project.
4. Applicable Laws and Regulations. The Commission shall carry out the
Remediation Work in accordance with all applicable state, local and federal laws,
regulations, orders, writs, judgments, injunctions, decrees or awards, including but not
limited to the following:
4.1. CERCLA.
4.2. Uniform Adnti~~istrative Requirements for ~7Ya111S and Cooperative
A~1•ee~~l~ents to States acid Local Govea•~mients, 40 C.F.R. Part 31.
3
4.3. The National Oil and Hazardous Substances Contin~ency Plar1, 40 C.F.R.
Part 300 (`NCP").
4.4. All Applicable Federal "Cross-Cutting- Reguzren~e~ts "including:
4.4.1. Those federal requirements agreed between the EPA and the City,
defined by the Cooperative Agreement.
4.4.2. DBE requirements found at 40 C.F.R. Part 33.
4.4.3. OSHA Worker Health & Safety Standard 29 C.F.R. 1910.120.
4.4.4. The Uniform Relocation Act; Historic Preservation Action.
4.4.5. Endangered Species Act.
4.4.6. Permits required by Section 404 of the Clean Water Action.
4.4.7. Contract Work Hours and Safety Standards Act, as arnended (40
U.S.C. 327-333).
4.4.8. The Anti Kickback Act (40 U.S.C. 276c).
4.4.9. Section 504 of the Rehabilitation Act of 1973, as implemented by
Executive Orders 11914 and 11250.
4.5. The Davis-Bacon Act of 1931 (CERCLA Section 104(g)(1), 40 U.S.C.
Section 276a-276a-5 and 42 U.S.C. Section 3222). CERCLA compliance with Davis-
Bacon requires payment of Federal prevailing wage rates for construction, repair or
alteration work funded in whole or in part with Project Loan Funds. The Commission
must obtain recent and applicable wage rates from the U.S. Department of Labor and
incorporate them into the remediation construction contract.
4.6. Executive Order 13202 - "Preservation of Open Competition and
Government Neutralitti~ toward Government Contractors' Labor Relations on Federal and
Federally-funded Construction Projects."
4.7. Office o~Manu enlent a~7d Budget (OMB) Circular No. A-122 - "Cost
Principles for Non-Profit Organizations.''
4.8. Executive Orders 12549 and 12689 - "Debarment and Suspension." The
Commission shall ensure that no contract is made with a party or parties listed on the
General Services Administration's List of Parties Excluded from Federal Procurement or
Nonprocurement Programs.
5. Front-End Document Certification. The Commission understands and agrees
that any and all work performed on the Property for which the Project Loan Funds are
used and the receipt of any Project Loan Funds under this Agreement is conditioned upon
4
the Commission's full compliance with the terms and provisions contained in this
Agreement, the Cooperative Agreement and the document titled "Front-End Document
Certification." The Commission shall ensure that all contracts and subcontracts involving
any portion of the Project Loan Funds comply with the "Front-End Document
Certification'' and the relevant laws and regulations referenced therein, including, but not
limited to, the required contract provisions listed at 40 C.F.R. § 31.36(1).
6. Environmental Reports and Project Documents.
6.1. The Commission shall provide the City with a copy of the Phase I and
Phase II Environmental Assessment of the Property performed according to the American
Society for Testing and Materials (ASTM) standards (collectively, the "Assessment").
The Commission shall be responsible for the payment of all costs and expenses related to
the Assessment. The Assessment shall include, but is not limited to site background, the
threat posed by the contamination to public health, welfare and the environment and all
past enforcement activities conducted by any governmental agency, and the site testing
results.
6.2. The City shall designate an environmental project manager (``Project
Manager') who shall review and approve of the proposed cleanup and coordinate the
work to be performed using Project Loan Funds. The City's environmental project
manager will review the Commission's remedial planning, design, and engineering
documents and review the cleanup activities as they are on-going to ensure that the
cleanup is being completed in accordance with all local, State, and Federal requirements
and is protective of human health and the environment.
6.3. The Commission has caused to be prepared a Community Relations Plan
("CRP") with the assistance and cooperation of the City. The CRP includes the
following:
6.3.1. Information on previous public involvement in the planning
process for the former Studebaker plant and for the use of RLF funds.
6.3.2. Notice of the public comment period on the CRP was published in
the South Bend Tribune on February 19, 2010 and February 26, 2010 with the
public comment period ending at 5:00 p.m. on Monday, March 8, 2010.
6.3.3. Procedures for the establishment of a local repository at or near the
Property that includes information provided by the Commission and the City
related to the proposed Remediation Work. The Commission shall supply the
City with any additional information that would assist the City in documenting the
Remediation Work.
6.4. After the Commission prepared the CRP, the Commission drafted an
Analysis of Brownfields Cleanup Alternatives (`ABCA") dated February 17, 2010,
which includes information about the Property and contamination issues (i.e., exposure
pathways, identification of contaminant sources, etc.); cleanup standards; applicable
laws; alternatives considered; and the proposed cleanup. The ABCA includes
effectiveness, implementability, and the cost of the cleanup proposed. The ABCA was
made available for review and public comment for a period of not less than 15 days from
the first date of publication of the public notice.
6.5. Following the public comment period described above, in which no public
comments were received, the Commission prepared a document describing the final
analysis of brownfield cleanup alternatives (the "Decision Memo''). The Decision Memo
included a statement that the Commission did not receive any public comments on the
ABCA and selected the remedial approach proposed in the ABCA. The EPA approved
the Decision Merno on March 26, 2010.
6.6. After the ACBA was finalized, the Commission prepared a scope of work
containing detailed design and construction plans and specifications for the Remediation
Work including a budget and work schedule; a health and safety plan (OSHA 1910-120 -
126) and a quality assurance project plan which sets forth the manner and method of
collecting samples to assure the complete removal of all hazardous substances that are
located at the Property and are to be removed as a part of the Remediation Work
(collectively, such documents are referred to as the "Project Documents'') and has
submitted same to the City for approval.
6.7. Prior to the initiation of the Remediation Work, including any cleanup
activities, the Commission must provide to the City copies of all of the state required
remedial planning documents and the state's approval of those documents, if required.
6.8. The awarding of this Grant shall be subject to:
6.8.1. Opinion of the Commission's counsel that the Commission, is in
good standing and that all documents executed by the Commission are valid and
enforceable in accordance with their respective terms.
6.8.2. Approval of this Agreement by the Commission, agreeing to its
ternls and authorizing the Commission to accept the Project Loan Funds.
6.8.3. Evidence by the Commission that no outstanding taxes, fees,
charges, mortgages, liens, encumberances or other assessments have been filed or
are recorded against the Property.
6.8.4. Evidence of insurance coverage with limits of liability as
determined by the City's Project Manager. All insurance coverage required by
this section shall remain in full force and effect during the term of this
Agreement.
6.8.5. Identification of the prime contractor and subcontractor(s) selected
by the Commission for the Remediation Work.
6.8.6. The City's receipt of cleanup project cost breakdown based upon
estimates and prices supplied by the Commission.
6
6.9. The City reserves the right to waive any or all of the requirements of
Section 6.8.
7. Performance of Work and Payment.
7.1. The Commission shall commence work on the Remediation Work within
30 days from the date of execution of this Agreement and shall complete and perform all
of the Remediation Work by December 31, 2011 in accordance with the approved
schedule of work ("Schedule of Work''), attached hereto and made a part hereof as
Exhibit E.
7.2. All Remediation Work performed pursuant to this Agreement and with
Project Loan Funds shall be performed in a good and workmanlike manner.
7.3. The City shall disburse the Project Loan Funds to the Commission no later
than 30 days following receipt of a draw request (which draw requests shall not be made
more frequently than monthly) and satisfactory documentation of expenditures for the
Work. The City and the Commission agree not to unreasonably delay or withhold
delivery or payment of draw requests.
7.4. The City may withhold up to ten percent (10%) of each payment requested
as a retainage until the Commission has completed the Remediation Work.
7.5. All material changes or modifications to the Remediation Work or the
Project Documents shall be approved in writing by the City prior to such change or
modification becoming effective. All additional costs incurred, as the result of any
change orders shall be the responsibility of the Commission. In the event that unforeseen
conditions are discovered during the implementation of the Remediation Work, the
Commission reserves the right to revise the cleanup action and the Project Documents.
7.6. The Commission, at its sole cost and expense, and from sources other than
Project Loan Funds, shall be responsible for obtaining all permits, licenses, approvals,
certifications and inspections required by federal, state or local law and to maintain such
permits, licenses, approvals, certifications and inspections in current status during the
term of this Agreement.
7.7. The Commission agrees to protect, indemnify, defend and hold harmless,
the City, its officers, administrators, agents, servants, employees and all other persons or
legal entities to whom the City may be liable from, for or against any and all claims,
demands, suits, losses, damages, judgments, costs and expenses, whether direct, indirect
or consequential and including, but not limited to, all reasonable fees, expenses and
charges of attorneys and other professionals, court costs, and other reasonable fees and
expenses for bodily injury, including death, personal injury and property damage, arising
out of or in connection with the performance of any work or any responsibility or
obligation of the Commission as provided herein and caused in whole or in part by any
act, error, or omission of the Commission, its agents, servants, employees or assigns.
7
7.8. The Commission shall erect a sign on the Property stating that the
Remediation Work is being financed in part by RLF Loan Funds and the City and
providing the appropriate contacts for obtaining information on activities being
conducted at the site and for reporting suspected criminal activities. The sign erected on
the Property shall comply with all requirements of the state and local law applicable to
on-premise outdoor advertising as well as 40 CFR Part 35, Subpart O
(§35.6105(a)(2)(ii)).
7.9. If the Commission sells or transfers the Property prior to completion of the
Remediation Work, then the Commission shall immediately repay the entire amount of
Project Loan Funds advanced to the Commission to the City.
7.10. The Commission shall:
7.10.1. Notify the City when the Remediation Work is complete. The
notice shall contain certification or documentation that the Remediation Work is
complete and has been performed in accordance with the terms of this Agreement.
This notice shall summarize the actions taken, the resources committed and the
problems encountered in completion of the Remediation Work, if any, and shall
be submitted to the City for review and approval before it is finalized.
7.10.2. Perform all of its obligations and agreements under this
Agreement, the Cooperative Agreement and any other agreements or instruments
to which the Commission is a party and which relate to the Project Loan Funds
and the Remediation Work.
7.10.3. Promptly give notice in writing to the City of any litigation
pending or threatened against the Commission or the Property arising from the
performance of the Remediation Work.
8. Inspection and Right to Stop Work. The City shall have the right, but not the
obligation, to enter the Property and inspect the Remediation Work at all times during the
execution of the Work in accordance with the Plan, and within 30 days following
completion of the Work.
8.1. The City shall select a "Site Manager' to review, oversee and inspect the
work in coordination with the Project Manager.
8.2. The City may stop the Remediation Work if it is not satisfactory or not
substantially in accordance with the Work Plan and order Remediation Work replacement
at the Commission's expense.
8.3. The City is not obligated to make any disbursements unless and/or until all
Remediation Work is satisfactorily completed and in accordance with the Work Plan as
reasonably determined by the City and Site Manager.
8.4. The City shall have the right, but not the obligation, to take any reasonable
and appropriate action under the circumstances to cure any violation for the provisions of
8
this Agreement upon written notice of at least 30 days to the Commission and an
opportunity to cure. The notice shall include a clear description of the proposed cure and
the approximate cost of the same.
8.5. The Commission recognizes that the Site Manager has the ability to stop
the Remediation Work immediately in the event of an imminent and substantial threat to
human health associated with it.
9. Representations and Warranties.
9.1. The City and the Commission represent and warrant to each other that:
9.2. The Property is not listed or proposed for listing on the National Priorities
List of the EPA.
9.3. None of the parties has disposed of hazardous substances, pollutants or
contaminants at or to the Property.
9.4. The making and performance by the parties of this Agreement does.not
violate any provision of federal, state or local law, or result in a breach of or constitute a
default under any agreement, indenture or other instrument to which the parties may be
bound.
9.5. This Agreement has been duly authorized by the governing bodies of each
entity, and has been validly executed and delivered, and is valid and binding on the
parties.
9.6. There are no pending or threatened actions or proceedings before any
court or administrative agency that may adversely affect the financial condition or
operation of the parties.
9.7. The Commission represents and warrants as follows:
9.7.1. The Commission certifies that it is not now, and has not in the past,
been subject to any penalties resulting from environmental non-compliance at the
Property.
9.7.2. Neither the Commission nor its respective officers or contractor(s)
retained to conduct the Remediation Work, have within a 3 year period preceding
this Agreement been, convicted of or had a civil judgment rendered against them
for (i) fraud or commission of a criminal offense in connection with obtaining,
attempting to obtain, or performing a public transaction or contract under a public
transaction, (ii) violation of federal or state antitrust laws, or (iii) embezzlement,
theft, forgery, bribery, falsification or destruction of records, making false
statements or receiving stolen property.
9.7.3. Neither the Commission nor its respective officers or contractor(s)
retained to conduct the Remediation Work are presently indicted for or otherwise
9
criminally or civilly charged by a public entity with commission of any of the
offenses enumerated under Section 9.7.2 hereof.
9.7.4. The Commission has not within the preceding 3 years had a public
transaction terminated for cause or default.
9.7.5. The Commission is a unit of government validly existing under
Indiana Code 36-7-14 and has all requisite power and authority to hold title to the
Property and to execute, deliver and perform all of its obligations under this
Agreement and the Grant documents.
9.7.6. The Commission is not a generator or transporter of any
contamination located at the Property.
9.7.7. The Commission is not a Potentially Responsible Party under
Section 107 of CERCLA, 42 USC § 9607 because the Commission has
demonstrated the BFPP defense to CERCLA liability through material submitted
to EPA on January 15 and January 25, 2010.
9.7.8. All representations and warranties shall survive the execution of
this Agreement.
10. Maintenance of Records.
10.1. The Commission agrees to maintain financial and programmatic records
pertaining to all matters relative to this Agreement in accordance with generally accepted
accounting principles and procedures and to retain all of its records and supporting
documentation applicable to this Agreement for a period of 3 years after the completion
of the Remediation Work except as provided in Section 10.2.
10.2. If any litigation, claim, negotiation, audit or other action involving the
records has been started before the expiration of the three-year period, the records must
be retained until completion of the action and resolution of all issues which arise from it,
or until the end of the regular three-year period, whichever is later.
10.2.1. All such records and supporting documents shall be made
available, upon request, for inspection or audit by the City or its representatives.
10.2.2. The Commission must receive permission from the City, in
writing, prior to destroying any of these records or documents.
1 L Right to Inspect and/or Audit. The Commission agrees to pernit the City or its
designated representative to inspect and/or audit its records and books relative to this
Agreement at any time during normal business hours and under reasonable
circumstances, upon reasonable notice and to copy them from any information that the
City desires relevant to this Agreement. The City shall provide written notice to the
Commission prior to the execution of this provision. The Commission agrees to deliver
the records or have the records delivered to the City or its designated representative at an
10
address designated by such party within the South Bend city limits. If the City or its
representative finds that the records delivered by the Commission are incomplete, the
Commission agrees to pay the City or its representative's costs to travel to the
Commission's office or other location where the books or records are located to audit or
retrieve the complete records. In addition, all grant related documents are subject to 40
C.F.R. Section 31.42(e).
12. Reporting.
12.1. The Commission shall provide the City with the Commission's Dun and
Bradstreet Data Universal Numbering System (DUNS) number prior to commencement
of the Remediation Work.
12.2. The Commission shall submit a quarterly performance report to the City
on or before the fifth (5`'') day of each of the following months: April, July, October and
January. Each report shall include:
12.2.1. Documentation of the progress at meeting performance
outcomes/outputs for the Remediation Work during the quarter (including the
percentage of the Remediation Work complete at the end of the quarter), a
narrative summary of quarterly activities, a project time line and an explanation
for any slippage in meeting established output/outcomes.
12.2.2. DUNS numbers for each and every contractor, subcontractor
and/or vendor performing any of the Remediation Work.
12.2.3. An update on any project milestones occurring during the quarter.
12.2.4. The number and types of jobs created during the quarter and the
number of hours worked during the quarter. The Commission shall consult "EPA
Summary of OMB's December 18, 2009 Updated Guidance on Reporting of Job
Estimates", which is attached as Exhibit F, for guidance on this reporting
requirement.
12.2.5. A budget recap summary page with following headings
Current Approved Budget
ii. Costs Incurred this Quarter
iii. Costs Incurred to Date
iv. Total Remaining Funds
v. Private investment during the quarter
] 2.3. The Commission need only submit one quarterly report to the City
pursuant to Section 12.2 to satisfy the Commission's reporting obligations under this
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Agreement and the Grant Agreement executed concurrently herewith (the ``Grant
Agreement''). Each quarterly report shall include all Work on the Project, whether
carried out with Loan Funds pursuant to this Agreement or with funds obtained through a
grant from the City pursuant to the Grant Agreement.
12.4. The Commission shall ensure that all contractors, subcontractors or any
other parties performing the Remediation Work submit reports as necessary to allow
Commission to comply with the notice requirements in Section 12.2.
12.5. The Commission shall furnish such other information as the City may
from time to tune reasonably request.
13. Events of Default.
13.1. In the event of a default of any of the terms or conditions of this
Agreement, the entire amount of Project Loan Funds disbursed to the Commission shall
become immediately due and payable without the necessity of demand from the City.
The Commission shall be deemed to be in default under this Agreement upon the
occurrence of any one or more of the following events (each an "Event of Default''):
13.1.1. The Commission assigns this Agreement or any Project Loan
Funds advanced hereunder or any interest herein to a third party or if the Property
or any interest is conveyed, assigned or otherwise transferred without the prior
written consent of the City.
13.1.2. Any representation or warranty made herein or in any report,
certificate, financial statement or other instrument furnished in connection with
this Agreement shall prove to be false in any material respect.
13.1.3. The Commission defaults in the performance of any tern1,
covenant or condition to be performed hereunder and such default is not remedied
within 30 days, unless a longer period of time is reasonably required to cure the
default, from and after receipt of written notice by certified mail, return receipt
requested, from the City to the Commission, specifying said default, or, if such
default cannot be remedied within that period and remedial effort is not
commenced within that period and diligently and continuously pursued, the City
shall have the right to proceed by appropriate judicial proceedings to enforce
performance or observation of the applicable provisions of this Agreement and/or
terminate this Agreement and recover damages from the Commission to the
extent allowed by law.
13.1.4. Any proceeding involving the Commission or the Property,
commenced under any bankruptcy or reorganization arrangement, probate,
insolvency, readjustment of debt, dissolution or liquidation law of the United
States, or any state, but if such proceedings are instituted, no Event of Default
shall be deemed to have occurred hereunder unless the City either approves,
consents to, or acquiesces in such proceedings, or such proceedings are not
dismissed within 60 days.
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13.1.5. An order, judgment or decree is entered, without the application,
approval or consent of the City, by any court of competent jurisdiction approving
the appointment of a receiver, trustee or liquidator of the Commission of all or a
substantial part of its assets, and such order, judgment or decree shall continue in
effect for a period of 60 days.
14. Remedies of the City. Upon the occurrence of an Event of Default, the City may
exercise, singly or in combination, any or all of the rights, powers and privileges set forth
in this Agreement, the Cooperative Agreement and any other agreements or instruments
to which the City is a party and which relate to the Project Loan Funds and the
Remediation Work, at law or in equity, at any time and from time to time.
15. Secure Site. In the event of Default, the Commission shall secure the Property.
Tlie cost of securing the Property is the responsibility of the Commission. If the
Commission fails to secure the Property within 24 hours of a Notice of Default, the City
may, but shall not be required to do so, at the Commission's sole cost.
16. Interpretation of Contract Documents. To the extent that it is determined that a
conflict exists between this Agreement and the Cooperative Agreement, all such
agreements and documents shall be construed in such manner as will give the maximum
effect to each but, as to any conflict which may not be so resolved, the terms and
conditions of the Cooperative Agreement shall control.
17. Miscellaneous.
17.1. No delay or failure of the City shall affect such right, power or privilege;
nor shall any single or partial exercise thereof or any abandonment or discontinuance of
steps to enforce such a right, power or privilege affect such right, power or privilege.
The rights and remedies of the City hereunder are cumulative and not exclusive. Any
waiver, permit, consent or approval of any kind of the City of any breach or default
hereunder, or any such waiver of any provisions or conditions hereof, must be in writing
and shall be effective only to the extent set forth in writing.
17.2. The Commission shall not assign or attempt to assign directly or
indirectly, any of its rights under this Agreement or under any instrument referred to
herein ~~ithout the prior written consent of the City. The Commission shall not assign all
or any portion of the Property made the subject of this Agreement without the prior
written consent of the City.
l 7.3. This Agreement is not intended to create or vest any rights in any third
party or to create any third party beneficiaries.
7.4. All amendments to this Agreement shall be in writing and signed by both
parties hereto.
17.5. It is expressly understood that a failure or delay on the part of the
Commission in the performance, in whole or in part, or any of the terms of this
Agreement, if such failure is attributable to an Act of God, fire, flood, riot, insurrection,
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embargo, emergency or governmental orders, regulations, priority, or other limitations or
restrictions, or other similar unforeseen causes beyond the reasonable control of such
party, the failure or delay shall not constitute a breach or Event of Default under this
Agreement; however, the Commission shall use its best effort to insure that the
Remediation Work is completed in a reasonable time without unnecessary delay.
17.6. The provisions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
17.7. No failure of either party to exercise any power or right given it hereunder
or to insist on strict compliance by the other party with its obligations hereunder, and so
custom of practice of the parties at variance with the terms hereof shall constitute a
waiver of the other party's right to demand at any time exact compliance with the terms
hereof.
17.8. Any notice, consent, waiver, request or other communications required or
permitted to be given under this Agreement shall be in writing and shall be deemed given
(a) on the same day if delivered personally, (b) 3 business days after mailed if delivered
by certified or registered mail, return receipt requested, postage prepaid, (c) one (1)
business day after dispatched if dispatched by nationally recognized overnight delivery
service, or (d) on the same day if sent by telecopier (subject to obtaining a confirmation
receipt), in any event, address to the party's address as follows:
TO THE CITY: City of South Bend
Board of Public Works
227 West Jefferson Blvd.
1300 County City Building
South Bend, IN 46601
Attention: Gary Gilot (or successor)
Director of Public Works
Telecopier Number: 574-235-9171
TO THE COMMISSION: South Bend Redevelopment Commission
227 West Jefferson Blvd.
120 County City Building
South Bend, IN 46601
Attention: Ann Kolata (or successor)
Senior Redevelopment Specialist
Telecopier Number: (574) 235-9021
With copies to: City Attorney
227 West Jefferson Blvd.
1400 County City Building
South Bend, IN 46601
Either party may, upon prior notice of 10 calendar days given as set forth above,
change its address for all subsequent notices.
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17.9. All exhibits mentioned herein shall be deemed incorporated herein by
reference as though fully set forth herein.
17.10. The terms and conditions of this Agreement, all exhibits attached hereto
and any documents expressly incorporated by reference represent the entire agreement
between the parties with respect to the subject matter of this Agreement. This Agreement
may not be amended or modified without the written consent of the parties hereto.
17.11. If any part of this Agreement is determined to be illegal or unenforceable,
all other parts shall be given effect separately and shall be in effect.
17.12. This Agreement, the Cooperative Agreement and any other agreements or
instruments to which the City and/or the Commission is a party and which relate to the
Project Loan Funds and the Remediation Work, shall be construed in accordance with
and governed by the laws of the State of Indiana except where superseded by federal
statutes or regulations.
17.13. The City and the Commission have engaged in negotiations, with
opportunity for the advice and benefit of counsel, over the terms of this Agreement and
no party has acted as the exclusive drafter of the language of this Agreement and no
inference or presumption or application of a rule of contract construction should be made
based upon the premise that one party acted more than the other party as the draftsperson
of these agreements.
17.14. This Agreement may not be amended, altered or modified unless the party
against whom enforcement of any waiver, modification or discharge is sought does so in
writing.
17.15. This Agreement will become effective when approved by the Commission
and signed by its President and Secretary or Vice President and approved and signed by
the Board of Public Works.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed in the
name and on behalf of each of them (acting individually or by their respective officers or
appropriate legal representatives, as the case may be, hereunto duly authorized) as of the
day and year first written above.
[SIGNATURE PAGES FOLLOW]
IS
COMMISSION:
City of South Bend, Department of Redevelopment
South Bend Redevelopment Commission
By:
Signature
By:
Signatuj~e
Date
16
CITY:
City of South Bend, Indiana
Board of Public Works
By:
By:
By:
Gary A. Gilot, P.E.
Donald E. Inks
Carl P. Litt°ell
Date
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