HomeMy WebLinkAbout5C2 First Amendment to Development Agreement (Wharf Partners, LLC)1
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “First
Amendment”) is made on December 13, 2018, by and between the South Bend Redevelopment
Commission, the governing body of the City of South Bend Department of Redevelopment (the
“Commission”), and Wharf Partners LLC, an Indiana limited liability company (the “Developer”)
(each a “Party,” and collectively the “Parties”).
RECITALS
A. The Commission and the Developer entered into that certain Development
Agreement dated February 22, 2018 (the “Development Agreement”), for the development of a
Project in the River East Development Area near Seitz Park.
B. In the course of its performance under the Development Agreement, the Developer
removed a known underground storage tank (“UST”) on certain Commission property to be
transferred to the Developer, and the Commission has agreed to compensate the Developer for
such removal.
C. The Parties now desire to modify the Development Agreement to reflect the Parties’
agreement, as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and obligations stated in the
Development Agreement and this First Amendment, the adequacy of which is hereby
acknowledged, the Parties agree as follows:
1. Section 1.3 of the Development Agreement shall be deleted in its entirety and
replaced with the following:
1.3 Funding Amount. “Funding Amount” means an amount not to
exceed Five Million Two Hundred Thirty-Seven Thousand Dollars ($5,237,000) of
tax increment finance revenues to be used for paying the costs associated with the
construction, equipping, inspection, and delivery of the Local Public Improvements
in support of the Project. Notwithstanding the foregoing sentence, the Parties agree
that no more than one-half (1/2) of the Funding Amount will be expended before
January 1, 2020, for Local Public Improvements supporting Phase I of the Project
(as defined in the Project Plan). Further, the parties agree that the Funding Amount
shall be spent as set forth on Exhibit C.
2. Section 8.4 shall be added to the Development Agreement as a new section:
8.4 Underground Storage Tank. The parties acknowledge the existence of an
underground storage tank (“UST”) on certain property owned by the Commission to be
transferred to the Developer in furtherance of the Project. The UST was previously filled
with inert material during the period of the City’s ownership of the Developer Property.
The Developer has determined that it is in the best interest of the Project to remove the
UST, and the City has agreed to provide the Developer Two Hundred Thirty-Seven
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Thousand Dollars ($237,000) of additional Local Public Improvements to compensate in
part for the cost of the UST’s removal and any ancillary remediation necessary due directly
to the UST’s removal. The Developer agrees to indemnify, defend, and hold the City
harmless with regard to the choice of contractor and procedure used to remove the UST
and with regard to any ancillary remediation directly due to the UST removal.
3. The Developer hereby expressly reaffirms its obligations under the Development
Agreement, and, unless expressly modified by this First Amendment, the terms and provisions of
the Development Agreement remain in full force and effect.
4. Capitalized terms used in this First Amendment will have the meanings set forth in
the Development Agreement unless otherwise stated herein.
5. The recitals set forth above are hereby incorporated into the operative provisions of
this First Amendment.
6. This First Amendment will be governed and construed in accordance with the laws
of the State of Indiana.
7. This First Amendment may be executed in separate counterparts, each of which
when so executed shall be an original, but all of which together shall constitute one and the same
instrument. Any electronically transmitted version of a manually executed original shall be deemed
a manually executed original.
Signature Page Follows
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IN WITNESS WHEREOF, the Parties hereby execute this First Amendment to
Development Agreement as of the first date stated above.
COMMISSION:
SOUTH BEND REDEVELOPMENT
COMMISSION
By:____________________________________
Marcia I. Jones, President
ATTEST:
By:____________________________________
Donald E. Inks, Secretary
DEVELOPER:
Wharf Partners LLC
By: _________________________________
Printed Name:
Title: