HomeMy WebLinkAbout18-51 Modifying and reconfirming resolution for Tower at Washington (Retail) Filed in Cler k's Office
SEP 05 2018
RE f i FOWLER
CITY OF SOUTHBENI*-�' o �°��o�JTCE °-''�
COMMUNITY INVESTMENT
JAMES MUELLER, EXECUTIVE DIRECTOR
September 5,2018
Council Member Gavin Ferlic, Chairperson
Community Investment Committee
South Bend Common Council
4th Floor, County City Building
South Bend„IN 46601
RE: Real Property Tax Abatement Extensions for: Historic JMS Building LLC,JSK
Development Inc.,RDistrict One LLC,Imagineering Enterprises Inc.,Tower at
Washington Square LLC.
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Dear Council Member Ferlic:
As part of our annual review process, we have found the need for several extensions to the
designation period for previously approved tax abatements. These extensions would not alter the
length of the abatement itself, however. It has been a general practice, when granting a tax
abatement, to allow a two-year designation period for the project to get underway, be completed,
and receive its higher reassessed value. The clock on the designation period starts when the I
abatement is granted by Council. Sometimes a project takes a bit longer to get underway and/or
be completed, and sometimes the Assessor's office does not issue the reassessed value (and
accompanying Form 11)within the two-year timeframe. For these situations(detailed below) the
petitioners are asking Council to grant extensions of the designation period on the following tax
abatements.
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Attached please find proposed forms of resolutions modifying and reconfirming the adoptions of
declaratory resolutions for Historic JMS Building LLC,.JSK Development Inc.,RDistrict One
LLC, Imagineering Enterprises Inc., Tower at Washington Square LLC which combined
were granted a total of eleven real property tax abatements.
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DANIELJ.BUCKENmmm ALKEYNA ALDRIDGE PAMELA MEM Tm CORCORAN
Busms DEvmommm ENGAGEMENT&Eco\,owe ETLPOWERMENT NEIGHBORHOOD DEVELDEWNT PLAATNING&C0MMUI nY RESOURCES
EXCELLENCE I ACCOUNTABILITY I INNOVATION I INCLUSION I EMPOWERMENT ]
14005 County-City Building 1227 W.Jefferson Blvd.I South Bend,Indiana 466011 p 574.235.93711 www.southbendin.gov i
CITY OF SOUTH BEND I COMMUNITY INVESTMENT
These modifications are related to extending a designation period from the date of adoption of the
original Declaratory resolutions. Some of above mentioned companies received a form. 11 from
the St.Joseph County Assessor Office in July 2018.Those companies filed appropriate forms with
the St. Joseph County Auditor Office in a timely manner, but the designation period already
expired. Other companies have completed their projects but never received a form 11 with a full
assessment values and as a result have not submitted required.forms to the St. Joseph County
Auditor Office. Finally, two companies requested a designation period extension due to
complexity of their projects that caused unanticipated delays.
Historic JMS Building:
The project was completed in March 2017. The company has invested$8.4 million and created 3 i
new jobs. The JMS building now houses Centier Bank and apartments contributing to the density
and vitality of downtown South Bend. The company received a form 11 from the St. Joseph
County Assessor Office in July 2018 and.filed appropriate forms to the St.Joseph County Auditor i
Office. The designation period expired on June 22,2017.
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JSK Development eland Hospitality/Holiday Inn Express):
The project was completed in April 2018. The company has invested $6.5 million and created 17
new jobs. The Holiday Inn opened in May and is part of a revitalization of the South Side at
Michigan and the Bypass. The company has never received a form 11 from the St.Joseph County
Assessor Office. The designation period expired on July 13,2017.
JSK Development(Southhold/Courtyard Marriott Downtown):
The project was completed in April 2018. The company has invested $11 million and created 38 I
new jobs. The Marriott has truly enhanced our downtown streetscape and makes the Century
Center a more viable option to bring in citywide tourism and revenues from small conferences and
shows. The company has never received a form 11 from the St. Joseph County Assessor Office.
The designation period expired on May 26,2018.
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JSK Development(Southhold/Hall of Fame):
The future use of the former College Football Hall of Fame Building was directly tied to the
construction and subsequent opening of the Courtyard Marriott Downtown Hotel. While those
plans did not come to fruition,JSK maintained their commitment to purchase the vacant property.
The hotel project was completed in April 2018 and JSK is requesting a designation period
extension on the vacant hall of fame building. The designation period expired on May 26,2018.
RDistrict One(Studebaker Building 84):
The project was completed in May 2018.The company has invested$18.4 million and created 19
new jobs and retained 5 jobs.The company has nat received a form 11 for a full assessment of the r
property from the St.Joseph County Assessor Office.The designation period expired on December F
17,2017.
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CITY OF SOUTH BEND ( COMMUNITY INVESTMENT
Imo ing .eering Enterprises:
The company was granted personal and real property tax abatements and proactively requested a
designation period extension due to a significant increase in its strategic investments. The
designation period will expire on September 26,2018.
Tower at Washington(Hotel and Parking Garage):
Two projects were completed in September 2017. The company has invested $38.5 million and
created 45 new j obs. The company received a form 11 from the St. Joseph County Assessor Office
in July 2018 but is still waiting for a full assessment of these properties. The designation period
will expire on September 29,2018.
Tower at Washington(Retail and Apartments):
Two projects have,not been completed yet due to the size and nature of the project. The company
is investing $15 million into the ongoing project. The company requested an extension of the
designation period for these project elements.The designation period will expire on September 29,
2018 for the Retail elements and on October 26, 2018 for the Apartments.
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The Department of Community Investment supports these requests for extension of the designation
period. These companies have met or exceeded their other abatement milestones and
commitments, generating visible growth and community impact. I
Should you or any of the other Council members have any questions concerning the report,or need
additional information,please feel free to call me at 235-5823.
Since l , i
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Daniel J. uckenmeyer
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Director of Business Development !
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BRADLEY
C O M P A N Y
August 2,2018
112 W.Jefferson Blvd„Suite 300 South Bend,IN 46601 1574,237,6000
Daniel Buckenmeyer
Director of Economic Resources and Business Development
Department of Community Investment
City of South Bend
227 W.Jefferson Blvd.,Suite 1400S
South Bend,IN 46601 i
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Re: Tower at Washington Square I i
Resolution Number 4501-15/4536-16 HOTEL:4502-15 PARKING GARAGE;4503-15 RETAIL;
4506-15 APARTMENTS
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Dear Mr. Buckenmeyer, I
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We are writing to ask foryour support and favorable recommendation to extend the 3-year expiration
of the Declaratory Resolutions 4501-15/4536-16;4502-15;4503-15 and 4506-15 for the Tower at i
Washington Square from October 20, 2018 to October 26th,2020. We are requesting an extension on
Resolution 4503-15 and 4506-15 due to the size and,nature of the project taking longer than
anticipated.
The Hotel(Resolution 4501-15/4536-16)and Parking Garage(Resolution 4502-15)sections of the
project are complete and opened on September 27,2017. Notice of Assessments were sent on July 17t',
2018 for all parcels.However,they are not fully re-assessed yet which is the reason for the extension
request for these 2 Resolutions. 1
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All CF-1's have been filed In a timely manner since the inception of the Declaratory Resolution.
The actual private investment so far is$38.5MM with another$15MM to finish the Apartments and the
Retall space. There have been 45 of 62 jobs created so far.
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Thank you in advance for your support In this matter.
Should you need additional information,please contact me at(574)968-9266.
Filed in Clerk's Office
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Sincerely,
y S E P 0 5 10113 1
KAREEMAH i-Q1lVi�Fi i
J lie Ruiz CITY CLERK,SOUTH BEND 11M
Certified Tax Representative for The Tower at Washington Square,LLC.
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EFiled Clerk's Office BILL N O. 18-51 0 5 2018
AH i=OWLER
RESOLUTION NO. SOUTH BEND,!N
A RESOLUTION MODIFYING AND RECONFIRMING THE ADOPTION OF
DECLARATORY RESOLUTION NO. 4502-15 DESIGNATING CERTAIN
AREAS WITHIN
THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS
211 West Washington Street
AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A
(10) TEN YEAR REAL PROPERTY TAX ABATEMENT FOR
RETAIL PROPERTY LOCATED AT
THE TOWER AT WASHINGTON SQUARE LLC
WHEREAS, the Common Council of the City of South Bend has adopted declaratory
resolutions designating certain areas within the City as Economic Revitalization Areas for the
purpose of tax abatement consideration; and
WHEREAS, Declaratory Resolution No. 4502-15 designated the area located at 211 West
Washington Street, South Bend, IN 46601 and which is more particularly described as follows:
LOTS 239 &240 &VAC ALLEY W &ADJ OP
and which currently designated as an Economic Revitalization Area; and
WHEREAS, upon proper notice, a public hearing was held, after which the Common
Council issued Confirming Resolution No. 4537-16, confirming the adoption of Declaratory
Resolution No. 4502-15 on March 15, 2016; and
WHEREAS, the Petitioner was granted a three-year designation period in Confirming
Resolution No. 4537-16,which expired on September 29, 2018;however,the project has not been
completed yet; and
WHEREAS, the Petitioner has requested additional two years to extend the designation
period.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South
Bend, Indiana, as follows:
SECTION I. The Common Council hereby determines and finds that the extension of the
designation is appropriate and meets the requirements of Indiana Code § 6-1.1-12.1 et seq.
SECTION II. The Common Council hereby reconfirms Declaratory Resolution No. 4502-15 and
Confirming Resolution No. 4537-16 designating the area described herein as an Economic
Revitalization Area for the purpose of a real property tax abatement. Such designation is limited
to five (5) calendar years from the date of adoption of Declaratory Resolution No. 4502-15 by the
Common Council.
SECTION III. The Common Council hereby determines that the property owner is qualified for
and is granted property tax deduction for a period of ten (10) years as shown below and further
determines that the petition, the Statement of Benefits and the Memorandum of Agreement
between the Petitioner and the City of South Bend comply with Chapter 2, Article 6, of the
Municipal Code of the City of South Bend and Indiana Code 6-1.1-12 et seq.
Year 1 — 100%
Year 2— 100%
Year 3—90%
Year 4—85%
Year 5—85%
Year 6— 85%
Year 7— 85%
Year 8—60%
Year 9—60%
Year 10—60%
SECTION IV. This Resolution shall be in full force and effect from and after its adoption by the
Common Council and approval by the Mayor.
Tim Scott, Council President
South Bend Common Council
2
RESOLUTION
No. 4537-16
Passed by the Common Council of the City of South Bend, Indiana
March 14 20--L6—.
Attest: City Clerk
Attest President of Common Council
Presented by me to the Mayor of the City of South Bend, Indiana
March 15, 20 16
City Clerk
Approved and signed by me 5 20 "
Mw
RESOLUTION NO.
A RESOLUTION MODIFYING AND CONFIRMING.THE
ADOPTION OF A DECLARATORY RESOLUTION
DESIGNATING CERTAIN AREAS WITHIN THE CITY OF
SOUTH BEND, INDIANA, COMMONLY KNOWN AS:
211 West Washington Street
AS AN ECONOMIC REVITALIZATION AREA FOR
PURPOSES OF A TEN (10) YEAR REAL,
PROPERTY TAX ABATEMENT FOR:
RETAIL PROPERTY LOCATED AT
THE TOWER AT WASHINGTON SQUARE LLC
WHEREAS,the Common Council of the City of South Bend,Indiana,adopted Declaratory
Resolution No. 4205-15 (the "Declaratory Resolution") designating certain areas within the City
as Economic Revitalization Areas for the purpose of tax abatement consideration; and which was
adopted by the Council on September 29, 2015 and approved by the Mayor that same date.
WHEREAS, the Declaratory Resolution designated a portion of the property commonly
known as 211 West Washington Street, South Bend, Indiana, and which is more particularly
described as follows:
Lots 239 &240&
Vac Alley W&Adj
OP
and which is to be rehabilitated for use as retail property as an Economic Revitalization Area; and
WHEREAS, said property has been subdivided into four (4) separate tax parcels and the
legal description and Key Number for the parcel relating to the retail property is as follows:
That part of the Northwest Quarter of Section 12, Township 37 North, Range 2 East, Portage
Township,City of South Bend,St.Joseph County,Indiana which is described as: Retail Unit(RE-
1) as shown on the "Declaration of Horizontal Property Ownership, Washington Square
Condominium Horizontal Property Regime"as recorded by Document No. 1605719 on March 10,
2016 and those certain floor plans for the building recorded on the date of record of declaration as
Document No. 1605718 in the records of the St. Joseph County,Indiana recorder's office.
US.105059206.02
Subject to all legal easements, exhibits and restrictions of record for said Washington Square
Condominium Horizontal Property Regime.
Key Number 18-1008-032101
(said parcel being referred to hereinafter as the "Property"); and
WHEREAS, notice of the adoption of a Declaratory Resolution and the public hearing
before the Council has been published pursuant to Indiana Code 6-1.1-12.1-2.5; and
WHEREAS, a copy of the notice of adoption of a Declaratory Resolution and a statement
containing substantially the same information as a statement of benefits filed with the Council has
been filed with each taxing unit that has authority to levy property taxes in the geographic area
pursuant to Indiana Code 6-1.1-12.1-2.5; and
WHEREAS, the Council held a public hearing on March 14, 2016 for the purposes of
hearing all remonstrances and objections from interested persons; and
WHEREAS, the Council determined that the qualifications for an economic revitalization
area have been met.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South
Bend, Indiana, as follows:
SECTION I. The Common Council hereby modifies and confirms its Declaratory
Resolution to designate the Property as an Economic Revitalization Area for the purposes of tax
abatement. Such designation is for real property tax abatement only and is limited to three (3)
calendar years from the date of adoption of the Declaratory Resolution by the Common Council
rather than the two (2) calendar year designation due to the size, scope and complexity of the
rehabilitation of the property.
SECTION Il. The Common Council hereby determines that the property owner is qualified
for and is granted real property tax deduction for up to a period of ten(10)years as provided in the
alternate abatement scheduled below pursuant to Indiana Code 6-1.1-12.1-17 and further
determines that the petition, the Memorandum of Agreement between the Petitioner and the City
of South Bend, and the Statement of Benefits comply with Chapter 2, Article 6, of the Municipal
Code of the City of South Bend and Indiana Code 6-1.1-12 et seq.
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US.105059206.02
Real Property
Year Abatement
1 100%
2 100%
3 90%
4 85%
5 85%
6 85%
7 85%
8 60%
9 60%
10 60%
SECTION III. This Resolution shall be in full force and effect from and after its adoption
by the Common Council and approved by the Mayor.
Member of the Common Council
Filed in Clerk's Office
pp►-s 3l i
NOT APPIZOM
MAR 14 2016
AcoPTW 3J I4 11°i KAREEMAH FOWLER
CITY CLERK,SOUTH BEND,IN
US.]05059206.02
- SFP
STATEMENT OF BENEFITS � FliM_pAY20`REAL ESTATE IMPROVEMENTS Slate Form 51767(R412.1J) 68.1 1 Roal property
Prescribed by the Department of Local Government Finance
ffPRIVACYNOTICE CY NOTICE
This statement is being completed for real propotty 11wi qualitios under the foltov ing Indiana Ccde(check one box): y specific indivbual's❑ Redevelopment or rehabilitation of real estate improvements(tC 6-3.1-12.1 A) n Is eontdenaal;the
np Is pub is rccortl
t7 Re5ldenUallydlslressedareeQC61,112.1.4.1) 15.1(c)and(d).
INSTRUCTIONS:
1. This statement must be submifted to the body designaling the Economic Revdallzalforl Aran prior to the public hearing If the designating body requires
infor7na0an from the appllcent In making lis decision about whetherio designate an Econom/c Revilabzallon Area. Olhenvise,this statement must ba
submitted to the designating body BEFORE the redevelopment ortehablldatlon of reel property for which lire person glishes to claim a deduclbn.
'Projects"planned or committed to after July 1. 1`987.and areas designated aher Poly 1,1987,require a STATEMENT OF BENEFITS.
2 Approval of tho ciesignaling body(City Council, TOM Board,County Council,etc.)must be ohleined priorto Initiation of the,ledevelopmentor
relrsbildetlon,BEFORE a deduction may be approved.
3. To obtain a deduction,a Foml 32ME must be filed I fh the CounlyAtrchlorbetare May 10 in this year In whkh the addition to assessed valuation Is
made or not later than thirty(30)days afterlho assessment notice Is mailed to the property Owner it R was mailed after April 10. little property olvner
misses the May 10 deadline In the fnlllal year of occupation,he can apply belween March I and May 10 of a subsequent year. I j
4. Property owners Ivhose Statement of Benefifs was approved after June 30,1991,must attach a Form CF-1fReal Property annually to the appllcallwl to
show complianco with the Statement of Bene(ls, pC 6.1.1-12.1.5.1(b)and 1C 61.1-12.1-5,3nj J.
5. Tho schedules eatabrished underiC 6-1.1-12.1-4(d)for rehablidalcd property apply to any economic revilatizolion areas designated alley June 30,2oo0,
unless an aftemahwe deduction schedule Is edopled by the designating body(IC 6 1.1-12.1-17). The schedules effective prior to July i,2000,shall
continue to apply to oconomic rrOoffmlon areas designated before July 1,2000.
F e of Lxpaycr
onnr el Wskngln Squar•LLC
ss of taxpayer(number ond46ael,dry,slate.and Z/Pcodo)47ur Avenue,8n1 Flow,Long Island city,NY 11101 of contact person Tele one numter y Mperiades 18781, 55 &ma8 oddre6S I
( � the orvcrohvashlnplonspuarel'2�p:neil.rom
Nome tit dea}gneUng body
�rvr Common�MN Reaofulbn nuLrbar
i-V 3�t
nOrproperty County - DLGFtoxina district number i
211 W.Via sNnglon St efia1l SL Josaph
Descnpbon of real properly improverrenLs.redevelopment,or tehabiolation fine aMtorrotaheets tl recessarr) Eslimeled start dais(month.day yeah
D9rz41t6
The b0ddng'•age&-A olgritcanl Worred mein;one we Muos have male 1ho trralvq ohsolnscnrt�snr�r,n cornplon mrdnm'catlon a WIdIng nduc Eist"led oorrip:etm date(maHf1 day.ycao
' # D1101117
Gu«enlnumber Salades Numbarclalned Salaries Numberodail'onal Salariss " -
0 0 20 1200
REAL ESTATE IMPROVEIAENTS
COST ASSESSED VALUE
Current values
Plus estimated values of proposeal project 2M71
Less values of any propertybeing replaced
ket esllmaled values upon completion of pro eel
Estlmaled solld wasle converted(pounds) Lsllmaled hazardous wasle converted(pounds)
Offer ben•fib - -
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I hereby cefttfyy that the representations in this statement are true.
S1gn so auUwraed represen Toe
Dale signed(month,day year)
Menegsr 9118111,
Page 1 of 2
We find that the applicant meets the general standards in the resolution adopted or to be adopted by this body. Said resolution,passed or to be passed
under IC 6.1.1-12.1,provides for the following limitations:
A. The designated a'ea has been Iimlled to a period of time not to exceed calendar years"(see below). The dale this designation
expires l$ I�2�TZh��_.
8, The type of deduction that is allowed in the designated area is limited lo:
1.Redevelopment or rehabilitation of real estate improvements El No
2.Residentially distressed areas VIZ.
®No
C. The amount of the deduction applicable is limited to$ n J 111 t l
D. Other limitations or conditions(specify)
E. The deduction Is allowed for �e Q r� ears
y "(see below).
F. Did the designating body adopt an alternative deduction schedule per IC 6-1.1-12,1-17? ❑Yes �No
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If yes,attach a copy of the alternative deduction schedule to this form.
We have also reviewed the information contained in the statement of benefits and find that the estimates and expectations are reasonable and have
determined that the tolaiily of benefits is sufficient to justify the deductloh described above.
Approved(s!gna1v4anpPf11e oraulhorized memb (.design ng bo Telephone number Dale si ned(Month,day,year)
`{') 235"q2 5 3 2011p
A sl (i d f ter) Designate body
bt u SaU th aj,
`If the design, ng bod II its the time period during which an area is an economic revitalization area,it does not limit the length of time a taxpayer is
entitled to receive a ded on tc a number of years designated under IC 6-1.1-12.1-4.
A. For residentially distressed areas,the deduction period may not exceed five(b)years.
B. For redevelopment and rehabilitation or real estate improvements:
1. if the Economic Revitalization Area was designated prior 10 July 1,2000,the deduction period is limited to three(3),six(6),or ten(10)years.
2. If the Economic Revitalization Area was designated efter June 30,2000,and is not in a residentially distressed area,the deduction period may not
exceed ten(10)years,
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MEMORANDUM OF AGREEMENT
This Memorandum of Agreement (the "Agreement") dated as of the 3rd day of March,
2016, serves as confirmation of a commitment by The Tower at Washington Square, LLC (the
"Applicant"), pending a March 14, 2016 public hearing, to comply with the project description,
job creation and retention (and associated wage rates and salaries) figures contained in its
petition, Statement of Benefits, and attachments and this Agreement(the "Commitments").
1. Commitments of City and Applicant. Subject to the adoption of a Confirmatory
Resolution by the South Bend Common Council (the "SBCC"), the City of South Bend, Indiana
(the "City") commits to providing a (10) ten-year real property tax abatement for the Applicant,
based on the Applicant's commitment set forth in Commitments regarding the renovation of a
building located on property identified as 211 West Washington St., South Bend, Indiana 46601
approved as part of the Commitments. The Applicant commits to a capital expenditure (from all'
sources of funds) of$292,971 towards retail space as part of a large scale redevelopment project
to an existing building commonly known as the former Chase Tower. This portion of the overall
project will create (20) twenty jobs over the life of the abatement, representing an annual payroll
of$499,200.
2. Potential Impact of State of Indiana Circuit Breaker Law: The parties note that
the calculations regarding the affect of the tax abatement in question are based on the State of
Indiana's tax rates currently in effect at the time of entering into this Memorandum of
Agreement. The complete impact of the State of Indiana's Circuit Breaker law on the City's
property tax revenues is unknown at this time. To assure that the City receives the projected
amount of property tax revenues, which amount was calculated at the time of granting the tax
abatement for the Applicant, the parties to this Memorandum of Agreement agree to adjust the
length of the abatement and/or the percentage of deduction if the tax revenues due under the
Circuit Breaker Law are less than what was initially projected and represented to the Common
Council, as evidenced by the supporting documentation submitted by Applicant to the Council
with the Applicant's tan abatement petition. However, in no case will the adjustments cause the
property taxes to be paid to exceed the tax payments as initially projected and represented to the
Common Council by the aforementioned supporting documentation.
3. Applicant's Compliance with City and State Laws. During the term of the
abatement, the Applicant shall comply with Chapter 2, Article 6 of the South Bend Municipal
Code entitled "Tax Abatement Procedures" and all governing provisions of the Indiana Code.
During the term of this abatement, the City may annually request information from the Applicant
concerning the nature of the Project, the approved capital expenditure of the Project, the number
of full-time permanent positions newly created by the Project, and the average wage rates and
salaries (excluding benefits & overtime) associated with the positions, and the Applicant shall
provide the City with adequate written evidence thereof within 15 days of such request (the
"Annual Survey"). The City shall utilize this information and the information required to be
filed by the Applicant in the CF-1 Compliance with the Statement of Benefits form to verify that
the Applicant has complied with the commitments contained in the Commitments at all times
after the date of this Agreement and during the duration of the abatement. The Applicant further
agrees to provide the City with such additional information requested by the City related to the
information provided in the Annual Survey and the CF-1 form within a reasonable time
following any such additional request.
4. Substantial Compliance and Rights of Termination. The City, by and through the
SBCC, reserves the right to terminate the Economic Revitalization Area designation and
associated property tax abatement deductions if it determines that the Applicant has not made
reasonable efforts to substantially comply with all the Commitments, and the Applicant's failure
to substantially comply with the Commitments was not due to factors beyond its reasonable
control. As used in this Agreement, "substantial compliance" shall mean the Applicant's
compliance with the following: (a) Two Hundred Ninety-two Thousand Nine Hundred Seventy-
One Dollars ($292,971) for building improvements, and (b) this portion of the overall project
will create 20 jobs over the life of the abatement representing an annual payroll of Four Hundred
Ninety-nine Two Hundred Dollars ($499,200).
5. 'Factors Beyond Control. As used in this Agreement, factors beyond the control
of the Applicant shall only include factors not reasonably foreseeable at the time of designation
application and submission of Statement of Benefits which are not caused by any act or omission
of the Applicant and which materially and adversely affect the ability of the Applicant to
substantially comply with this Agreement.
6. Repayment of Tax Abatement Savings. If at any time during the term of this
Agreement the Applicant shall: (i) be delinquent or in default with respect to any tax payment in
St. Joseph County, Indiana; or (ii) cease operations at the facility for which the tax abatement
was granted; or (iii) announce the cessation of operations at such facility, then the City may
immediately terminate the Economic Revitalization Area designation and associated tax
abatement deductions, and upon such termination, require Applicant to repay all of the tax
abatement savings received through the date of such termination.
7. Notice/Hearing of Termination. In the event that the City determines that the
Economic Revitalization Area designation and associated tax abatement deductions should be
terminated or that all or a portion of the tax abatement savings should be repaid, it will give the
Applicant notice of such determination, including a written statement calculating the amount due
from the Applicant, and will provide the Applicant with an opportunity to meet with the City's
designated representatives to show cause why the abatement should not be terminated and/or the
tax savings repaid. Such notice shall state the names of the person with whom the Applicant
may meet. The Applicant shall have thirty days from the date of receipt of such notice to arrange
such meeting and to provide its evidence concerning why the abatement termination and/or tax
savings repayment should not occur. If, after giving such notice and receiving such evidence, if
any, the City determines that the abatement termination and/or the tax repayment action is
proper, the Applicant shall be provided with written notice and a hearing before the SBCC before
any final action shall be taken terminating the abatement and/or requiring repayment of tax
benefits. The Applicant shall be entitled to appeal SBCC's determination to a St. Joseph County
Superior or Circuit Court.
8. Repayment. In the event the City requires repayment of the tax abatement
savings as provided hereunder, it shall provide Applicant with a written statement calculating the
amount due (the "Statement") as calculated in accordance with the South Bend Municipal Code
Section 2-84-14(h) and as permitted by Indiana law, and Applicant shall make such repayment to
the City within 90 days of the date of the Statement. If the Applicant does not make timely
repayment, the City shall be entitled to all reasonable costs and attorneys' fees incurred in the
enforcement and collection of the tax abatement savings required to be repaid hereunder.
9. Modification/Entire Agreement. This Agreement and the schedules attached
hereto contain the entire understanding between the City and the Applicant with respect to the
subject matter hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements, and conditions, expressed or implied, oral or written, except as
herein contained. This Agreement may not be modified or amended other than by an agreement
in writing signed by the City and the Applicant. The Applicant understands that any and all
filings required to be made or actions required to be taken to initiate or maintain the abatement
are solely the responsibility of the Applicant.
10. Waivers. Neither the failure nor any delay on the part of the City to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege with respect to any
occurrence or be construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and is signed by the
party asserted to have granted such waiver.
11. Governiniz Laws of Indiana. This Agreement and all questions relating to its
validity, interpretation, performance, and enforcement shall be governed by the laws and
decisions of the courts of the State of Indiana.
12. Applicant's Consent to Jurisdiction. The Applicant hereby irrevocably consents
to the jurisdiction of the Courts of the State of Indiana and of the St. Joseph County Circuit or
Superior Court in connection with any action or proceeding arising out of or relating to this
Agreement or any documents or instrument delivered with respect to any of the obligations
hereunder, and any action related to this Agreement shall be brought in such County and in such
Court.
13. Notices. All notices, requests, demands, and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have been received
when delivered by hand or by facsimile (with confirmation by registered or certified mail) or on
the third business day following the mailing, by registered or certified mail, postage prepaid,
return receipt requested, thereof, addressed as set forth below:
If to Applicant: The Tower at Washington Square, LLC
5-44 47th Avenue, 3`d Floor
Long Island City,NY 11101
Attn: Liberty Angeliades
If to the City: City of South Bend, Indiana
227 West Jefferson Blvd. Suite 14005
South Bend, Indiana 46601
Attn: Aaron Kobb, Department of
Community Investment
14. Assignment and Transfer Prohibited. This Agreement shall be binding upon and
inure to the benefit of the City and the Applicant and their successors and assigns, except that no
parry may assign or transfer its rights or obligations under this Agreement without the prior
written consent of the other party hereto, in which consent shall not be unreasonably withheld.
15. Valid and Binding Agreement. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any party whose
signature appears thereon, and all of which shall together constitute one and the same instrument.
By executing this Agreement, each person so executing affirms that he has been duly authorized
to execute this Agreement on behalf of such party and that this Agreement constitutes a valid and
binding obligation of the party.
16. Severability. The provisions of this Agreement and of each section or other
subdivision herein are independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other
or others of them may be invalid or unenforceable in whole or in part unless this Agreement is
rendered totally unenforceable thereby.
17. No Personal Liability. No official, director, officer, employee or agent of the City
shall be charged personally by the Applicant, its employees or agents with any liabilities or
expenses of defense or be held personally liable to the Applicant under any term or provision of
this Agreement or because of the execution by such party of this Agreement or because of any
default by such party hereunder.
[Remainder of page intentionally blank.]
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day
and year first above written.
"Applicant" `City"
The Tower at Washington Square, LLC ;oSouth Ben iana
Y• By:
Liberty Ange • des, 2 pager Tim Scott
President, South Bend Common Council
Approved as to Legal Adequacy and Form By:
his /V day of 2a-1 Gavin Ferlic
J Chairperson, Community Investment
Committee
Kathleen Cekanski-Farrand
Counsel, South Bend Common Council By:
Aaron Kobb
Department of Community Investment
Counsel for Applicant
By:
Pete B gieg
Mayor
(Signature page to the MOA —Retail)