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HomeMy WebLinkAboutNo. 1080 approving a sublease of real property to the COSBLn RESOLUTION NO. 1080 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION APPROVING A SUBLEASE OF REAL PROPERTY TO THE CITY OF SOUTH BEND WHEREAS, the South Bend Redevelopment Commission (the "Commission ") is lessee of the following described real property owned by the South Bend Redevelopment Authority (the "Authority ") under the Lease - Purchase Agreement dated as of November 1, 1989, and approved and modified on the 16th day of February, 1990, (the "Lease "): A parcel of land in the West Half of the Southeast Quarter of Section 12, Township 37 North, Range 2 East, City of South Bend, Portage Township, St. Joseph County, Indiana, being part of Lot 13 of John Rush's 1st Addition, as recorded in Book 2, Page 53, at the St. Joseph County Recorder's Office in South Bend, Indiana, and described as follows: Commencing at the Northwest corner of Lot 11, also being the intersection of the East right -of -way line of Rush Street and the South right -of -way line of a 12.50 foot alley; thence North 89 041'40" East (bearing assumed), 110.00 feet along said South right -of -way line to the Point of Beginning; thence continuing North 89 °41'40" East, 55.00 feet; thence South 00 101154" East, 166.00 feet to the North right -of -way line of South Street; thence South 89 041140" West, 55.00 feet along said South right -o€ -way line; thence North 00 001154" West, 166.00 feet to the South right -of -way line of a 12.50 foot alley and the Point of Beginning and containing 0.2096 acres, more or less, and is subject to all easements, restrictions and or covenants of record. Commonly known as 611 East South Street (the "Real Property "); and WHEREAS, the Commission is desirous of subleasing the Real Property to the City of South Bend, Indiana; and WHEREAS, the City of South Bend is desirous of leasing the Real Property from the Commission; and WHEREAS, pursuant to I.C. 36- 9 -6 -3, the Board of Public Works of the City of South Bend (the "Board ") has custody of and may maintain all real property of the City of South Bend; and WHEREAS, pursuant to I.C. 36- 1 -11 -8, the City of South Bend, acting by and through the Board, may exchange or transfer property with another governmental entity upon terms and conditions agreed upon by the two (2) entities as evidenced by the adoption of substantially identical resolutions of each entity; and WHEREAS, the Commission has agreed to sublease the Real Property I. to the City of South Bend, and the City of South Bend, acting by and through the Board, has agreed to sublease the Real Property from the Commission under the terms and conditions of a sublease containing terms and conditions which are substantially similar to those embodied in the Lease, with the exception that the rent paid by the City to the Commision pursuant to said sublease shall be nominal in amount. NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT COMMISSION AS FOLLOWS: 1. That the sublease of the following described real property by the South Bend Redevelopment Commission to the City of South Bend, acting by and through its Board of Public Works: A parcel of land in the West Half of the Southeast Quarter of Section 12, Township 37 North, Range 2 East, City of South Bend, Portage Township, St. Joseph County, Indiana, being part of Lot 13 of John Rush's 1st Addition, as recorded in Book 2, Page 53, at the St. Joseph County Recorder's Office in South Bend, Indiana, and described as follows: Commencing at the Northwest corner of Lot 11, also being the intersection of the East right -of -way line of Rush Street and the South right -of -way line of a 12.50 foot alley; thence North 89 041140" East (bearing assumed), 110.00 feet along said South right -of -way line to the Point of Beginning; thence continuing North 89 041140" East, 55.00 feet; thence South 00 001154" East, 166.00 feet to the North right -of -way line of South Street; thence South 89 041140" West, 55.00 feet along said South right -of -way line; thence North 00 °01'54" West, 166.00 feet to the South right -of -way line of a 12.50 foot alley and the Point of Beginning and containing 0.2096 acres, more or less, and is subject to all easements, restrictions and or covenants of record. Commonly known as 611 East South Street (the "Real Property ") under terms and conditions that are substantially similar to those embodied in the Lease, shall be, and hereby is, approved, subject to the adoption of a resolution by the Board of Public Works of the City of South Bend, substantially identical in its terms and conditions as this resolution, and, further, subject to the approval of the South Bend Redevelopment Authority. 2. That the President and Secretary of the Commission shall be, and hereby are, authorized, respectively, to execute and attest to the execution of a sublease containing terms and conditions which are substantially similar to those embodied in the Lease, with the exception that the rent paid by the City to the Commisison shall be nominal in amount. 0 3. That this Resolution shall be in full force and effect upon its adoption by the South Bend Redevelopment Commission. ADOPTED at a meeting of the South Bend Redevelopment Commission held on July 10, 1992, at County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. Attest: Michael Donoho, Secretary RESO/RES611ESOUTH CITY OF SOUTH BEND REDEVELOPMENT COMMISSION By: Paula N. Auburn, President SUB -LEASE BETWEEN SOUTH. BEND REDEVELOPMENT COMMISSION AND THE BOARD OF PUBLIC WORKS OF THE CITY OF SOUTH BEND t This Sub -Lease entered into as of the _��ay of 1992, between SOUTH BEND REDEVELOPMENT COMMISSION, the governing body of the South Bend Department of Redevelopment and the Redevelopment District of South Bend, Indiana, (the "Commission "), and the CITY OF SOUTH BEND, INDIANA, acting by and through its Board of Public Works, (the "Sub- lessee "). WITNESSETH: Section 1. Definitions. The terms defined in this Section 1 shall for all purposes of this sub -lease have the meanings herein specified unless the context otherwise requires. "Commission" means the South Bend Redevelopment Commission, the governing body of the South Bend Department of Redevelopment and the Redevelopment District of South Bend, Indiana, or if said Commission shall be abolished, the Commission, Board, body or agency succeeding the principal functions thereof. "Sub- Lease" means this sub -lease as the same may be amended, modified, or supplemented by any amendments or modifications hereof or supplements hereto enter into in accordance with the provisions hereof. "Lessee" means the City of South Bend, Indiana, acting by and through its Board of Public Works, or if said Board shall be abolished, the commission, board, body or agency succeeding to the principal functions thereof. "Permitted encumbrances" means those items listed in Exhibit A hereto and any future (a) liens for taxes that have not been delinquent, (b) this Sub -Lease and any sub - leases and other agreements permitted pursuant to Section 6 hereof, (c) utility, access or other easements and rights -of -way, restrictions, and exceptions that the Lessee approves, (d) and mechanics', laborers', materialmen's, suppliers', or vendors' lien or right in respect thereof if payment is not yet due and payable, and (e) such minor defects, irregularities, encumbrances, easements, rights -or -way, and clouds on title as do not materially impair the title of the South Bend Redevelopment Authority to the premises. Section 2. Sub -Lease of the land. In consideration of the rentals and other terms and conditions herein specified, the Commission does hereby sub - lease, demise, and sub -let to the Sub - Lessee the real property described in Exhibit B hereto: TO HAVE AND TO HOLD the same with all rights, privileges, easements and appurtenances thereunto belonging, unto the Sub - lessee for a term of 22 years, beginning on the ist day of August, 1992, and ending on the 31st day of July, 2014. The Commission hereby represents that it is possessed of, or will acquire, a leasehold interest in the premises by way of a certain lease between the South Bend Redevelopment Authority and the Commission dated as of November 1, 1989, and that it will be possessed of, or will acquire, a good and indefeasible estate in fee simple subject only to permitted encumbrances, to the above described real estate prior to the termination of this Sub - Lease, and the Commission warrants and will defend the same against all claims whatsoever not suffered or caused by the acts or admissions of the Sub - lessee. The sub - lessee will not take any action or fail to take any action that would result in the loss of the exclusion from gross income for federal tax purposes of interest on the South Bend Redevelopment Authority Bonds issued in connection with the South Bend Central Development Area Public Improvement Project, pursuant to Section 103(a) of the Internal Revenue Code of 1986, as amended (the "Code "), as in effect on the date of delivery of the Bonds, nor will the Lessee act in any manner which would adversely affect such exclusion. The Sub - lessee further covenants that it will not make any investment or do any other act or thing during the period that any Bond is outstanding hereunder which would cause any Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and the regulations thereunder as in effect on the date of delivery of the Bonds. Section 3. Rental payments. During the term of this Sub - Lease, the Lessee agrees to pay rental for said premises in the amount of Ten Dollars ($10.00) per year, payable in advance, the first such rental payment being due on the lst day of August, 1992, with successive annual rental payments being due and payable each May 1st thereafter. x Section 4. Net Lease. It is expressly understood and agreed that this Sub -Lease shall be what is known as a net lease (i.e., the rent being absolutely net to the Commission and that all other expenses in connection with the Sub - Lease's activities of any nature whatsoever shall be those of the Sub- Lessee) and that during the sub -lease term the Sub- Lessee shall be obligated to pay as its expenses without reimbursement from the Commission all costs of taxes and assessments, if any, and maintenance, operation and use in connection with or relating to its activities . Section 5. Damage or Destruction. In the event that all or a portion of the premises shall be damaged or destroyed so as to render x the damaged or destroyed portion of the premises unfit for its intended use, it shall then be the obligation of the Commission to restore and reconstruct the damaged or destroyed portion of the project as promptly as may be done, unavoidable strikes and other causes beyond the control of the Commission excepted, if, in the opinion of the Commission the cost of such restoration or reconstruction does not exceed the amount of the proceeds received by the Commission from the insurance provided for in Section 7 hereof plus other monies available therefor. If this condition shall not exist, the proceeds received from the insurance provided in Section 7 hereof shall be held by Norwest Bank, Indiana, N.A., or as otherwise determined by the Commission, and all right, title and interest of the Lessee hereunder shall terminate. Section 6. Non Liability of Commission. The Commission shall not be liable for damage caused by hidden defects or failure to keep the project in repair and shall not be liable for any damage done or occasioned by or from plumbing, gas, water, or other pipes or bursting or leaking of plumbing or heating fixtures in connection with said premises, nor for damage occasioned by water, snow, or ice. The Commission shall riot be liable for any injury to the Sub - lessee or any sub - lessee of the Sub - lessee or any other person which injury occurs on, in, or about the premises howsoever arising. The Commission shall not be liable for any damage to the Lessee's property or to the property of any sub - lessee of the Lessee or of any person which may be located in, upon, or about the premises. Section 7. Alterations. Sub - lessee shall have the right, with the consent of the Commission, to make or cause to be made all alterations, modifications, and additions and to do all improvements it deems necessary or desirable to the premises, which do not reduce the value of the premises. Section 8. Insurance. The Sub - lessee, at its own expense, will during the full term of the Sub - Lease, keep the premises insured against physical loss or damage, however caused, with such exceptions as are ordinarily required by insurers of properties of a similar type, in good and responsible insurance companies acceptable to the Commission. Such insurance shall be in an amount at least equal to One Hundred percent (1000) of the full replacement cost of such premises as certified by a registered architect, a registered engineer, or professional appraisal engineer selected by the Commission on the effective date of this Sub -Lease and on or before the 1st day of January of each year thereafter: Provided, however, that such certification shall not be required so long as the amount of insurance shall be in an amount at least equal to that amount specified by the Commission at the time of the execution of this Sub -Lease and every January 1st thereafter during the term of this Sub - Lease. Such appraisal may be based upon a recognized index of conversion factors. In no event shall the insurance be in an amount which causes the Sub - lessee to be a co- insurer for the project. Such insurance may contain a provision for a deductible in an amount not exceeding $25,000.00. Sub - lessee agrees to pay the deductible amount of any loss to the Commission. A blanket public institutional property insurance form may be used if: (a) The insurance on the project is not less than the amount required by this Section, (b) The Sub - lessee subordinates its claim for damage or destruction to other buildings or improvements to claims for damage or destruction of the premises, and (c) The insurance proceeds related to the damage or destruction of the project are payable to Norwest Bank, Indiana, N.A., as successor Trustee under a certain Trust Agreement dated as of g November 1, 1989, or as otherwise determined by the Commission. Section 9. Use of Insurance and Condemnation Proceeds. Proceeds of insurance against damage to or destruction of the premises or proceeds of any condemnation of the premises shall be paid to and held by the Norwest Bank Indiana, N.A., or as otherwise determined by the Commission, and used to pay for reconstruction or replacement of the project in accordance with plans approved by the Commission and Sub - lessee. Section 10. Liability Insurance. The Sub - lessee shall, at all times during the term of this sub - lease, keep in effect public liability and property damage insurance, insuring the Sub - lessee, the Commission, the South Bend Redevelopment Authority, and Norwest Bank, Indiana, N.A., or other designee as determined by the Commission, in amounts customarily carried for similar properties. Such insurance may be provided under the Public Liability Self Insurance Program of the City of South Bend. Section 11. General Covenants. The Sub- lessee shall not assign this Sub -Lease or sublet any part of the premises herein described without the prior written consent of the Commission and South Bend Redevelopment Authority. The Sub - lessee covenants that, except for Permitted Encumbrances, it will not encumber the premises, or permit f any encumbrance to exist thereon, and that it shall use and maintain the premises in accordance with the laws and ordinances of the United States of America, the State of Indiana, and all other proper governmental authorities. The Commission agrees that it will, at the request of the Sub - lessee, execute and deliver to or upon the order of the Lessee such instrument or instruments as may be reasonably required by the Sub - lessee in order to subject the premises, or the Commission's interest therein, to such encumbrances as shall be specified in such request and as shall be permitted by the provisions of this Section 13 or otherwise by the definition of Permitted Encumbrances. Section 12. Option to Purchase. The Commission hereby grants Sub - lessee the right and option to purchase the premises at the termination of this Agreement for an amount equal to Ten Dollars ($10.00). Should the Commission obtain full, indefeasible title to the premises prior to the date of the termination of this agreement, the Sub- lessee shall have the right and option to purchase the premises, upon thirty (30) days written notice to the Commission to purchase the premises for an amount equal to Ten Dollars ($10.00). If the Sub - lessee has not exercised its option to purchase the premises at the expiration of the term of the Sub -Lease and upon the full discharge and performance by the Sub - lessee of its obligations under this Sub - Lease, the Commission shall execute a deed of the premises to the Sub - lessee conveying good and merchantable title thereto, subject only to Permitted Encumbrances. Section 13. Defaults. If the Sub - lessee shall (a) default in the payment of any rentals or other sums payable to the Commission hereunder, or in the payment of any other sum herein required to be paid for the Commission, (b) default in the observance of any other covenant, agreement or condition hereof, and such default under (b) shall continue for ninety (90) days after written notice to correct the same, then, in any of such events, the Commission may proceed to protect and enforce its rights, either at law or in equity, by suit, action, mandamus or other procedings, whether for specific performance of any covenant or agreement contained herein or for the enforcement of any other appropriate legal or equitable remedy. Section 14. Notices. Whenever either party shall be required to give notice to the other under this Sub - Lease, it shall be sufficient service of such notice to deposit the same in the United States mail, in an envelope duly stamped, registered and addressed to the other party at its last known place of business. Section 15. Successors or Assigns. All covenants of this Lease, whether by the Commission or the Sub - lessee, shall be binding upon the successors and assigns of the respective parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this Sub -Lease to be executed for and on their behalf as of the day and year first hereinabove written. SOUTH ND REDEVELOPMENT COMMISSION By: Gam. it), Llx_'C� Paula N. Auburn, President ATTEST: Michael Donoho, Secretary STATE OF INDIANA ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for said State, personally appeared Paula N. Auburn and Michael Donoho, personally known by me to be the President and Secretary, respectively, of the South Bend Redevelopment Commission, and acknowledged the execution of the foregoing Sub -Lease for and on behalf of said Commission. WITNESS my hand and Notarial Seal this,,I day of , 1992. C (Written ignature) (Printed Signature) (SEAL) My commission expires: I am a resident of f, County, Indiana A ST: Sandra M. Parmerlee Clerk CITY OF SOUTH BEND BOARD OF PUBLIC WORKS J n E. Leszczyn James R. Caldwell Mary Hall M ty er Before me, the undersigned, a Notary Public in and for said State, personally appeared John Leszczynski, ja4aes R. Gtell, Mary Hall Mueller, personally known by me to be members of the of Public Works of the City of South Bend, and acknowledged the execution of the foregoing Sub -Lease for and on behalf of said WITNESS my hand and Notarial 1992. My Commission Expires: 9oLJ REDE8 /L- 626LWE and Board Board. Seal is /3-1—gday of (Written Signature) S4ND2A m . P4 &0_. (Printed Signature) 86511 ,--VF 6,0 sT J2660# CO vArPy EXHIBIT A Permitted Encumbrances All encumbrances identified in the Title Commitment originally issued by Lawyers Title Insurance Corporation on March 6, 1990, Commitment No. 58972, in favor of the South Bend Redevelopment Commission, as amended and in effect from time to time during the term of the Lease between the South Bend Redevelopment Authority and South Bend Redevelopment Commission dated as of November 1, 1989, and approved and modified on February 16, 1990, which touch and concern the real estate described in Exhibit "B" hereto. EXI3IBZT "A" A parcel of land in the West Half of the Southeast Quarter of Section 12, Township 37 North, Range 2 East, City of South Bend, Portage Township, St. Joseph County, Indiana, being part of Lot 13 of John Rush's 1st Addition, as recorded in Book 2, Page 53, at the St. Joseph County Recorder's Office in South Bend, Indiana, and described as follows: Commencing at the Northwest corner of Lot 11, also being the intersection of the East right -of -way line of Rush Street and the South right -of -way line of a 12.50 foot alley; thence North 89 041'40" East (bearing assumed), 110.00 feet along said South right -of -way line to the Point of Beginning; thence continuing North 89 041140" East, 55.00 feet; thence South 00 001154" East, 166.00 feet to the North right -of -way line of South Street; thence South 89 041140" West, 55.00 feet along said South right -of -way line; thence North 00 001'54" West, 166.00 feet to the South right -of -way line of a 12.50 foot alley and the Point of Beginning and containing 0.2096 acres, more or less, and is subject to all easements, restrictions and or covenants of record. 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