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HomeMy WebLinkAbout4732-18 Rew, LLC Confirming RESOLUTION No. 4732-18 Passed by the Common Council of the City of South Bend, Indiana August 27, 20-1-8. Attest: LZ City Clerk kaieemah N. Fowler Attest President of Common Council Presented by me to the Mayor of the City of South Bend, Indiana August 271 20 --18. City Clerk KareeMah N. Fowler Approved and signed by me �.!� 20�. M' i _T_00*� -1 United States of America F--FILED - SEP U 7 2018 I -wDITOR S��' U 7 2018 S JOSEPH COUNTY - f ST.JOSEPH COUNTY • Certificate ASSESSOR STATE OF INDIANA, COUNTY OF ST. JOSEPH, ss: I, Kareemah Fowler, Clerk of the City of South Bend, County of St. Joseph, Indiana, hereby certify that the attached and foregoing is a full, true, and correct copy of RESOLUTION 4732-18 A RESOLUTION CONFIRMING THE ADOPTION OF A DECLARATORY RESOLUTION DESIGNATING CERTAIN AREAS WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS LOT 12 US 31 INDUSTRIAL PARK PHASE II AS AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A FOUR(4)YEAR REAL PROPERTY TAX ABATEMENT FOR REW, LLC ADOPTED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AUGUST 27, 2018 PRESENTED TO, APPROVED AND SIGNED BY MAYOR PETE BUTTIGIEG, AUGUST 31,2018 ATTEST: TIM SCOTT, PRESIDENT OF THE COMMON COUNCIL ATTEST: KAREEMAH N. FOWLER, CITY CLERK the original of which is now on file in the office of the Clerk of the City of South Bend, St. Joseph County, Indiana. IN WITNESS WHEREOF, I have hereunt�ol het my hand and affixed the official Sea f the City of South Bend, St. Joseph County, Indiana, this b�'yl day of 20 Kareemah Fowler Clerk of the City of South Bend St. Joseph County, Indiana By: -A -IJLD Deputy BILL NO. 18-38 RESOLUTION NO. 4732-18 A RESOLUTION CONFIRMING THE ADOPTION OF A DECLARATORY RESOLUTION DESIGNATING CERTAIN AREAS WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS Lot 12 US 31 Industrial Park Phase Ii AS AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A FOUR (4) YEAR REAL PROPERTY TAX ABATEMENT FOR REW, LLC WHEREAS, the Common Council of the City of South Bend, Indiana, has adopted a Declaratory Resolution designating certain areas within the City as Economic Revitalization Areas for the purpose of tax abatement consideration; and WHEREAS, a Declaratory Resolution designated the area commonly known as 5870 W. Carbonmill Dr., South Bend, IN 46628 and which is more particularly described as follows: LOT 12 US 31 INDUSTRIAL PARK PHASE Ii 02-03 NEW REPLAT TR 8044 10-9-01 and which has Key Number 025-1009-015217 be designated as an Economic Revitalization Area; 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, the Council held a public hearing for the purposes of hearing all remonstrances and objections from interested persons; and WHEREAS, the Council has 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 confirms its Declaratory Resolution designating the area described herein as an Economic Revitalization Area for the purposes of tax abatement. Such designation is for Real Property tax abatement only and is limited to four (4) calendar years from the date of adoption of the Declaratory Resolution by the Common Council. SECTION II. The Common Council hereby determines that the property owner is qualified for and is granted a real property tax deduction for a period of(4) four years as shown below 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. Year I — 100% Year 2 - 90% Year 3 - 80% Year 4—70% SECTION III. This Resolution shall be in full force and effect from and after its adoption by the Common Council and approved by Tim Scott, Council 'ies-lZient South Bend Common Council PREUNYEL). M KPPROV f MEMORANDUM OF AGREEMENT This Memorandum of Agreement (Agreement) dated as of August 15, 2018, serves as confirmation of a commitment by REW, LLC (the "Applicant"), pending a August 27', 2018, 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 (Commitments). 1. Commitments of City and Ap licant. Subject to the adoption of a Declaratory Resolution and a Confirmatory Resolution by the South Bend Common Council (the "SBCC"), the City of South Bend, Indiana(the"City")commits to provide a(4)four-year real property tax abatement for the Applicant,based on the Applicant's commitment set forth in its Application. The Applicant commits to a capital expenditure of$1,956,400 associated with the construction and the outfitting of a new warehouse and office building located at 5870 W. Carbonmill Dr., South Bend, IN 46628 (Key Number—025-1009-015217). This real property project will create at least twenty-five(25)full-time jobs and relocate and or retain eighty six(86) existing jobs from Mishawaka and other sites within three years. 2. Potential Impact of State of Indiana Circuit Breaker Law: The parties note that the calculations regarding the effect 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 to the Council with the Applicant's tax 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 Commitment Date 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) expenditures of no less than One Million Nine Hundred Fifty Six Thousand Four Hundred dollars ($1,956,400) of capital investment towards the construction of a new warehouse and office building located at 5870 W. Carbonmill Dr., South Bend, IN 46628; (b) this real property project will create at least twenty five(25) full-time jobs and relocate eighty six(86)existing jobs from Mishawaka within three years. 5. Factors Beyond Control. As used in this Agreement, factors beyond the control of the Applicant shall only include factors not reasonably foreseeable at the time of designation application and submission of Statement of Benefits which are not caused by any act or omission of the Applicant and which materially and adversely affect the ability of the Applicant to substantially comply with this Agreement. 6. Repayment of Tax Abatement Savings. If at any time during the term of this Agreement the Applicant shall:(i)be delinquent or in default with respect to any tax payment in St.Joseph County,Indiana; or (ii) cease operations at the facility for which the tax abatement was granted; or (iii) announce the cessation of operations at such facility, then the City may immediately terminate the Economic Revitalization Area designation and associated tax abatement deductions, and upon such termination, require Applicant to repay all of the tax abatement savings received through the date of such termination. 7. Notice/Hearing of Termination. In the event that the City determines that the Economic Revitalization Area designation and associated tax abatement deductions should be terminated or that all or a portion of the tax abatement savings should be repaid, it will give the Applicant notice of such determination, including a written statement calculating the amount due from the Applicant, and will provide the Applicant with an opportunity to meet with the City's designated representatives to show cause why the abatement should not be terminated and/or the tax savings repaid. Such notice shall state the names of the person with whom the Applicant may meet and will provide that the Applicant shall have thirty days from the date of such notice to arrange such meeting and to provide its evidence concerning why the abatement termination and/or tax savings repayment should not occur. If, after giving such notice and receiving such evidence,if any,the City determines that the abatement termination and/or the tax repayment action is proper,the Applicant shall be provided with written notice and a hearing before the SBCC before any final action shall be taken terminating the abatement and/or requiring repayment of tax benefits. The Applicant shall be entitled to appeal that determination to a St.Joseph County Superior or Circuit Court. 8. Repayment. In the event the City requires repayment of the tax abatement savings as provided hereunder,it shall provide Applicant with a written statement calculating the amount due(Statement),and Applicant shall make such repayment to the City within 30 days of the date of the Statement. If the Applicant does not make timely repayment,the City shall be entitled to all reasonable costs and attorneys' fees incurred in the enforcement and collection of the tax abatement savings required to be repaid hereunder. 9. Modification/Entire Ajzreement. This Agreement and the schedules attached here to contain the entire understanding between the City and the Applicant with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings, inducements, and conditions, expressed or implied, oral or written, except as herein contained. This Agreement may not be modified or amended other than by an agreement in writing signed by the City and the Applicant. The Applicant understands that any and all filings required to be made or actions required to be taken to initiate or maintain the abatement are solely the responsibility of the Applicant. 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. Governing 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: REW, LLC 51500 Stratton Ct Granger,IN 46530 Attn: Robert W. Womy Owner If to the City: City of South Bend,Indiana 27 West Jefferson Blvd. Suite 1400S South Bend, Indiana 46601 Attn: Daniel Buckenmeyer,Department of lCommunity 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 party 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" 46ciW3 W,LLC City of South Bend, Indiana Y: �/ y. [insert contact name] Tim Scott President, South Bend Common Council Approved as to Le al Adequacy and Form this day of ,2018. Y Gavin Ferlic Chairperson, Community Investment Counsel, South�Bei2zomrnon Council Committee Y Dan uckenmeyer Counsel for Applicant Department of Community Investment Y: Pete Butti Mayor Filed in Clerk's Office AUG 23 2018 KAREEMAH FOWLER CITY CLERK,SOUTH BEND, IN