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HomeMy WebLinkAboutRDC Packet 1.24.19 South Bend Redevelopment Commission 227 West Jefferson Boulevard, Room 1308, South Bend, Indiana Agenda Regular Meeting, January 24, 2019 9:30 a.m. 1. Roll Call 2. Approval of Minutes A. Minutes of the Regular Meeting of Thursday, December 13, 2018 3. Approval of Claims A. Claims Submitted January 24, 2019 4. Old Business 5. New Business A. Administrative 1. Resolution No. 3467 (Setting 2019 Meeting Schedule) 2. Resolution No. 3468 (Setting Hearing Date for Appropriations) 3. Resolution No. 3469 (Procedures for Property Related Services) B. River West Development Area 1. License Agreement (Ambassadors for Christ Church) – D2 2. Third Amendment to Real Estate Purchase Agreement (Cressy & Everett) – D2 3. Fourth Amendment to Real Estate Purchase Agreement (Franklin Street Tech Park, LLC) – D2 4. Memorandum of Understanding (South Bend Redevelopment and IRF) – D2 5. Budget Increase (Olive GAC Plant) – D2 6. Budget Request (North Station Filtration Plant) – D2 7. Development Agreement (Bald Mountain, LLC) – D2 8. First Amendment to Development Agreement (Unity Gardens) – D2 9. Agreement to Buy and Sell Real Estate (Marion/Scott St.) – D2 C. Other 1. TIF Realignment Professional Services (H.J. Umbaugh & Associates) 6. Progress Reports A. Tax Abatement B. Common Council C. Other 7. Next Commission Meeting: Thursday, February 14, 2019, 9:30 a.m. 8. Adjournment NOTICE FOR HEARING AND SIGHT IMPAIRED PERSONS Auxiliary Aid or Other Services are Available upon Request at No Charge. Please Give Reasonable Advance Request when Possible. South Be n d Redevelopment Commission 227 West Jefferson Boulevard, Room 1308, South Bend, IN SOUTH BEND REDEVELOPMENT COMMISSION REGULAR MEETING December 13, 2018 9:30 a.m. 227 West Jefferson Boulevard Presiding: Marcia Jones, President South Bend, Indiana The meeting was called to order at 9:30 a.m. 1.ROLL CALL Members Present:Marcia Jones, President Dave Varner, Vice-President Don Inks, Secretary Gavin Ferlic, Commissioner Quentin Phillips, Commissioner Members Absent: Leslie Wesley, Commissioner Legal Counsel: Sandra Kennedy, Esq. Redevelopment Staff: David Relos, RDC Staff Mary Brazinsky, Board Secretary Others Present: James Mueller Daniel Buckenmeyer Elizabeth Leonard Inks Chris Dressel Andrew Netter Tony Sergio Jitin Kain Kyle Silveus Kara Boyles Jacob Klosinski Zach Hurst Mark Peterson & Eric Watson Tom Panzica Conrad Damian Patti McNarney Sion Shepley DCI DCI DCI DCI DCI DCI Engineering Engineering Engineering Engineering Engineering WNDU Wharf Partners Resident Lake City Bank Clay High School Student ITEM: 2A South Bend Redevelopment Commission Regular Meeting – December 13, 2018 2.Approval of Minutes A.Approval of Minutes of the Regular Meeting of Monday, November 19, 2018 Upon a motion by Secretary Inks, seconded by Commissioner Phillips, the motion carried unanimously, the Commission approved the minutes of the regular meeting of Monday, November 19, 2018. 3.Approval of Claims A.Claims Submitted December 13, 2018 Upon a motion by Secretary Inks, seconded by Commissioner Phillips, the motion carried unanimously, the Commission approved the claims submitted on Thursday, December 13, 2018. South Bend Redevelopment Commission Regular Meeting – December 13, 2018 4.Old Business 5.A. Public Hearing 1.Resolution No. 3465 (River East Residential TIF Appropriations 2019) Elizabeth Leonard Inks presented Resolution No. 3465 (River East Residential TIF Appropriations 2019). This Resolution will appropriate an additional $945,000 in the River East Residential TIF, which will be for a change in the bond debt service. President Jones opened up the floor for public comment. With no public comments, President Jones closed the public portion of the hearing. Upon a motion by Vice-President Varner, seconded by Commissioner Phillips, the motion carried unanimously, the Commission approved Resolution No. 3465 (River East Residential TIF Appropriations 2019) submitted on Thursday, December 13, 2018. B.River West Development Area 1.Resolution No. 3466 (Declaring Certain Properties Blighted) Mr. Relos presented Resolution No. 3466 (Declaring Certain Properties Blighted). Last year a new Section 19.5 was added to the Redevelopment Statute which allows the Commission to acquire property that is blighted, unsafe, abandoned, foreclosed, or structurally damaged from a willing seller. Resolution No. 3466 declares six properties blighted. The six properties are in a key target area of the West Side Main Streets Plan at Lincoln Way West, Marion and Scott streets. Five of the properties have been vacant for years, with the sixth being a vacant and boarded up house. Commission approval is requested. Upon a motion by Secretary Inks, seconded by Commissioner Phillips, the motion carried unanimously, the Commission approved Resolution No. 3466 (Declaring Certain Properties Blighted) submitted on Thursday, December 13, 2018. 2.Agreement To Buy And Sell Real Estate (620 W Marion St.) Mr. Relos presented the Agreement To Buy And Sell Real Estate for 620 W. Marion St. This is a vacant lot that went through the tax sale process in 2014. It is in the key target area of the West Side Main Street Plan for Lincoln Way West and Marion St. The owner has agreed to sell the property for its appraised value of $675. Commission approval is requested. Upon a motion by Commissioner Ferlic, seconded by Vice-President Varner, the motion carried unanimously, the Commission approved Agreement To Buy And Sell Real Estate (620 W Marion St Acquisition) submitted on Thursday, December 13, 2018. South Bend Redevelopment Commission Regular Meeting – December 13, 2018 3. Budget Request (Fat Daddy’s Demo) Mr. Relos presented a Budget Request for the Fat Daddy’s Demo. On November 27, 2018 the Board of Public Works opened bids for this project, with the low bid being $500,000, which includes $30,000 environmental allowance, site restoration, and new sidewalks. Two alternates for the salvaging of 19 granite and terra cotta features on the northern two buildings would also be awarded. Commission approval for $540,000 is requested. Upon a motion by Commissioner Ferlic, seconded by Secretary Inks, the motion carried unanimously, the Commission approved $540,000 Budget Request (Fat Daddy’s Demo) submitted on Thursday, December 13, 2018. 4. Budget Amendment (Coal Line Project) Mr. Dressel presented a Budget Amendment for the Coal Line Project. This is for Appraisal Problem Analysis costs, a required component of the appraisal process. An increase of $28,455 is requested. Upon a motion by Secretary Inks, seconded by Commissioner Ferlic, the motion carried unanimously, the Commission approved Budget Amendment (Coal Line Project) submitted on Thursday, December 13, 2018. 5. Nipsco (Hibberd Easement) Mr. Silveus presented Nipsco (Hibberd Easement). This request is for a 5’ x 20’ easement to serve the Hibberd Development. The easement was initially created for AEP, and NIPSCO will occupy the same easement, located on Commission owned property at 322 S. Lafayette. Upon a motion by Secretary Inks, seconded by Vice-President Varner, the motion carried unanimously, the Commission approved Nipsco (Hibberd Easement) submitted on Thursday, December 13, 2018. 6. Budget Request (Sanitary Sewer Extension) Mr. Klosinski, City Engineer, presented a Budget Request (Sanitary Sewer Extension). This is to connect new development in the Airport Annexation Area for the South Bend Chocolate project, to our lift station. This will be approximately one-mile long on the south side of US 20. Commission approval of the total bid price of $766,957, which was the low bid on the project is requested. Upon a motion by Commissioner Ferlic, seconded by Vice-President Varner, the motion carried unanimously, the Commission approved the Budget Request (Sanitary Sewer Extension) submitted on Thursday, December 13, 2018. 7. Budget Request (South Shore Study) Mr. Kain presented a Budget Request (South Shore Study). This project includes two separate studies to be conducted by AECOM in order to finalize the location of the new South Shore commuter line station in South Bend. The first study is for the Downtown Option Refined Concept Design which includes South Bend Redevelopment Commission Regular Meeting – December 13, 2018 further engineering analysis to determine construction feasibility and project costs in an anticipated cost of $180,900. The second study is the assessment of Airport Cargo. The Airport is considering the relocation of the South Shore commuter line next to the cargo park. This portion of the study is $80,000, which will be reimbursed by the Airport. Commission approval in the amount of $260,900 is requested. Upon a motion by Commissioner Phillips, seconded by Commissioner Ferlic, the motion carried unanimously, the Commission approved Budget Request (South Shore Study) submitted on Thursday, December 13, 2018. C.River East Development Area 1.First Amendment to Development Agreement (Wharf Partners, LLC) Mr. Mueller presented the First Amendment to Development Agreement (Wharf Partners, LLC). Because of an underground storage tank on the property owned by the Commission, the City has agreed to provide the developer $237,000 of additional local improvement costs to remove and remediate the tank. The property where the tank was located will become property of the developer as part of the Seitz Park property realignment. Upon a motion by Secretary Inks, seconded by Vice-President Varner, the motion carried unanimously, the Commission approved First Amendment to Development Agreement (Wharf Partners, LLC) submitted on Thursday, December 13, 2018. 2.Collateral Assignment of Development Documents (Wharf Partners, LLC/Lake City Bank) Mr. Mueller presented Collateral Assignment of Development Documents (Wharf Partners, LLC/Lake City Bank). This will help to provide financing to Wharf Partners. This allows the Bank to step in to complete the project if necessary. Upon a motion by Commissioner Ferlic, seconded by Commissioner Phillips, the motion carried unanimously, the Commission approved Collateral Assignment of Development Documents (Wharf Partners, LLC/Lake City Bank) submitted on Thursday, December 13, 2018. 3.Resolution No. 3461 (Pledging TIF for Wharf SDC) Mr. Mueller presented Resolution No. 3461 (Pledging TIF for Wharf SDC). This is for the System Development Charge on behalf of public improvements to the project, up to $62,694. Commission approval is requested. Upon a motion by Vice-President Varner, seconded by Commissioner Phillips, the motion carried unanimously, the Commission approved Resolution No. 3461 (Pledging TIF for Wharf SDC) submitted on Thursday, December 13, 2018. South Bend Redevelopment Commission Regular Meeting – December 13, 2018 4.Memorandum Of Understanding (Wharf Project) Mr. Mueller presented MOU (Wharf Project). This MOU is to clear easements, transfers property for the ND Hydro, Parks, Commission, and Wharf Partners projects around Seitz Park. The Agreement also provides parking during development for the parties involved. Upon a motion by Commissioner Ferlic, seconded by Vice-President Varner, the motion carried unanimously, the Commission approved MOU (Wharf Project) submitted on Thursday, December 13, 2018. 5.Resolution No. 3459 (Accepting Transfer and Transferring Property) Mr. Mueller presented Resolution No. 3459 (Accepting Transfer and Transferring Property). This is authorizing the transferring property in the Seitz Park / Wharf area. Upon a motion by Commissioner Ferlic, seconded by Commissioner Phillips, the motion carried unanimously, the Commission Resolution No. 3459 (Accepting Transfer and Transferring Property) submitted on Thursday, December 13, 2018. D.Douglas Road Development Area 1.Budget Request (Douglas Road Relocation) Ms. Boyles presented a Budget Request (Douglas Road Relocation). Funding in the amount of $200,000 for professional engineering services related to the relocation of the Douglas Road Lift Station, force main, gravity sewer and potential water main conflicts. In 2021, St. Joseph County plans to widen a section of Douglas Road that will affect various South Bend utilities located in, and that serve, the Douglas Road TIF District. Due to the widening of the roadway, the City will need to relocate a critical (high flow) lift station located near Juday Creek, as well as a 10” force main under the existing pavement. Potential gravity sewer relocations will also be necessary, pending conflicts with the proposed improvements. It is anticipated that water main conflicts may also require redesign. Upon a motion by Vice-President Varner, seconded by Commissioner Ferlic, the motion carried unanimously, the Commission approved the Budget Request (Douglas Road Relocation) submitted on Thursday, December 13, 2018. E.South Side Development Area 1.Budget Request (O’Brien Center Allocation) Mr. Sherman presented a Budget Request (O’Brien Center Allocation). The budget request is to make improvements to the facilities located at O’Brien Park as part of the My South Bend Parks and Trails initiative. The existing Center requires improvements so that it meets the current and future needs of its users. These improvements will include several significant improvements to benefit the community and members of the O’Brien Fitness Center. Administration offices in the building will be eliminated to create additional programming space. Restrooms South Bend Redevelopment Commission Regular Meeting – December 13, 2018 on the main level will be modernized and expanded to improve health and safety as well as meet modern ADA requirements. There will also be several space planning and programming improvements to activate more of the building and provide a better experience. Commission approval of a budget of $580,000 to support the design and construction of improvements at O’Brien Recreation Center is requested. Upon a motion by Vice-President Varner, seconded by Commissioner Ferlic, the motion carried unanimously, the Commission approved the Budget Request (O’Brien Center Allocation) submitted on Thursday, December 13, 2018. 6.Progress Reports A.Tax Abatement B.Common Council C.Other 7.Next Commission Meeting: Thursday, December 27, 2018, 9:30 a.m. Thursday, January 10, 2019, 9:30 a.m. 8.Adjournment Thursday, December 13, 2018, 10:06 a.m. David Relos, Property Development Manager Marcia I. Jones, President ITEM: 3A RESOLUTION NO. 3467 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION APPROVING A SCHEDULE OF REGULAR MEETING TIMES FOR CALENDAR YEAR 2019 WHEREAS, pursuant to Ind. Code § 36-7-14, the South Bend Redevelopment Commission (“Commission”) is the governing body of the City of South Bend Department of Redevelopment; and WHEREAS, pursuant to Ind. Code § 36-7-14-8(g), the Commissioners may adopt the rules and bylaws it considers necessary for the proper conduct of Commission proceedings and the carrying out of Commission duties; and WHEREAS, Article IV, Section 1 of the Amended and Restated By-Laws of the South Bend Redevelopment Commission effective July 16, 2015, provides that the Commission shall adopt a schedule of regular meetings at its first meeting of each year; and WHEREAS, the Commission desires to approve and adopt a schedule of regular meeting dates and times for calendar year 2019; and NOW, THEREFORE, BE IT RESOLVED by the South Bend Redevelopment Commission as follows: 1.The Commission approves and adopts as its regular meeting schedule for calendar year 2019 the meeting dates and times stated in the schedule attached hereto as Exhibit A. 2.Unless otherwise announced, regular meetings shall be held without further notice at 9:30 a.m., local time, at the Board of Public Works Meeting Room, 1308 County-City Building, 227 West Jefferson Street, South Bend, Indiana 46601. 3.This Resolution shall be in full force and effect after its adoption by the South Bend Redevelopment Commission. ADOPTED at a meeting of the South Bend Redevelopment Commission held on January 24, 2019, at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ Marcia I. Jones, President ATTEST: ______________________________ Donald E. Inks, Secretary 4000.0000001 40058986.001 ITEM: 5A1 Resolution No. 3467 Exhibit A 2019 Meeting Schedule The Redevelopment Commission will hold its regular meetings the 2nd and 4th Thursdays at 9:30 a.m. in the Board of Public Works Conference Room unless otherwise noted below. January 10 9:30 a.m. January 24 9:30 a.m. February 14 9:30 a.m. February 28 9:30 a.m. March 14 9:30 a.m. March 28 9:30 a.m. April 11 9:30 a.m. April 25 9:30 a.m. May 9 9:30 a.m. May 23 9:30 a.m. June 13 9:30 a.m. June 27 9:30 a.m. July 11 9:30 a.m. July 25 9:30 a.m. August 8 9:30 a.m. August 22 9:30 a.m. September 12 9:30 a.m. September 26 9:30 a.m. October 10 9:30 a.m. October 24 9:30 a.m. November 14 9:30 a.m. November 25 9:30 a.m. **Note this is the Monday before Thanksgiving December 12 9:30 a.m. December 26 9:30 a.m. FOR HEARING AND SIGHT IMPAIRED PERSONS Auxiliary aid or other services are available upon request at no charge. Please give reasonable advance request when possible. 1 RESOLUTION NO. 3468 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION SETTING A PUBLIC HEARING ON THE APPROPRIATION OF TAX INCREMENT FINANCING REVENUES FROM VARIOUS ALLOCATION AREAS FOR THE PAYMENT OF CERTAIN OBLIGATIONS AND EXPENSES RELATED TO THEIR RESPECTIVE ALLOCATION AREAS FOR CALENDAR YEAR 2019 AND OTHER RELATED MATTERS WHEREAS, the South Bend Redevelopment Commission (the “Commission”), the governing body of the Department of Redevelopment of the City of South Bend, Indiana (the “City”) and the City of South Bend, Indiana, Redevelopment District (the “District”), exists and operates under the provisions of Indiana Code 36-7-14, as amended (the “Act”); and WHEREAS, the Commission, from time to time, has declared, confirmed and established allocation areas for areas needing redevelopment and economic development areas within the District for purposes of tax increment financing pursuant to the Act; and WHEREAS, the Commission has further created allocation area funds for the purpose of receiving tax increment financing revenues received from the allocation areas; and WHEREAS, Resolutions No. 3471 through 3475 appropriating the funds from various allocations areas of the District (collectively, the “Resolutions”) will be presented to and considered by the Commission; and WHEREAS, the Commission desires to appropriate the allocation area funds to pay certain expenses incurred by it or the City for local public improvements that are in or serving their respective allocation areas or otherwise in accordance with the Act, which appropriations are set forth in more detail in the Resolutions; and WHEREAS, the proposed appropriations are not for the operating expenses of the Commission; and NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT COMMISSION AS FOLLOWS: 1.The Commission desires to approve the use of the funds of the various allocation areas, as set forth in their respective Resolutions, which allocation areas, resolutions and not-to- exceed appropriation amounts are set forth below: Allocation Area and Fund Resolution No. Fund No. Not-to-Exceed River West Development Area Resolution No. 3471 324 $22,000,000 River East Development Area Resolution No. 3472 429 $2,000,000 South Side Development Area, #1 General Resolution No. 3473 430 $7,000,000 Douglas Road Economic Development Area Resolution No. 3474 435 $240,000 Redevelopment Retail Resolution No. 3475 425 $15,000 Totals $31,255,000 ITEM: 5A2 2 2.The President and Secretary of the Commission are each hereby authorized and directed to take all necessary steps to obtain approval of the expenditures of such funds pursuant to applicable laws, including the publication in accordance with Indiana Code 5-3-1 of notice of a hearing on the appropriation of such funds to be held at 9:30 a.m. on February 14, 2019, at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. 3.This Resolution will be in full force and effect upon its adoption by the Commission. ADOPTED at a regular meeting of the South Bend Redevelopment Commission held on January 24, 2019, at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ Marcia I. Jones, President ATTEST: ______________________________ Donald E. Inks, Secretary 1 RESOLUTION NO. 3469 RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION SETTING PROCEDURES FOR CONTRACTS FOR PROPERTY RELATED SERVICES WHEREAS, I.C. 36-7-14-12.2 provides that the South Bend Redevelopment Commission (the “Commission”) may acquire, hold, use, sell, exchange, lease, rent or otherwise dispose of property for the purposes set forth and described in I.C. 36-7-14 (the “Act”); and WHEREAS, the Commissioners have the authority under I.C. 36-7-14-8(g) to adopt such rules and bylaws as they consider necessary for the proper conduct of their proceedings and the carrying out of their duties and the safeguarding of money and property placed in their custody; and WHEREAS, the Commission enters into contracts, from time to time, with title companies, appraisers, surveyors, and environmental contractors so as to better understand the status of title and the condition of real estate in which the Commission has a current or prospective interest; and WHEREAS, the Commission wishes to delegate to certain staff members of the City of South Bend (the “City”) the authority to initiate certain contracts with title companies, appraisers, surveyors, and environmental contractors subject to the limitations stated in this Resolution. NOW, THEREFORE, BE IT RESOLVED by the Commission as follows: 1. The following staff members or their successors (“Staff”) are authorized to initiate contracts for services (the “Contracts”) on behalf of the Commission: a. James Mueller; b.Daniel Buckenmeyer; c. Tim Corcoran; d. David Relos; and e. Andrew Netter. 2.All Contracts initiated by Staff must be related to property the Commission owns, is interested in acquiring, or intends to sell, use, exchange, lease or otherwise dispose in furtherance of its purposes under the Act. The Contracts shall be strictly limited to the services identified in paragraph 5 of this Resolution. 3.Each Contract must be approved by the Executive Director or any properly appointed Acting Executive Director of the City’s Department of Community Investment (the “Director”). 4.Each Contract shall be entered into with a service provider duly licensed and/or authorized to do business in the State of Indiana. ITEM: 5A3 2 5.Staff’s authority to initiate the Contracts is limited to the following maximum amount for each respective service: SERVICE MAXIMUM FEE Title Searches and Policies $ 200.00 per parcel Appraisals (Commercial/Industrial) $ 5,000.00 per appraisal Appraisals (Residential) $ 1,000.00 per appraisal Land Surveys/Replats/Subdivisions $ 5,000.00 per survey/replat/subdivision Environmental Assessments $ 5,000.00 per assessment 6.All Contracts initiated by Staff must be presented to the Commission as part of the Commission’s regular claims approval process or separately for ratification by the Commission. 7.The authority granted under this Resolution shall continue until superseded or rescinded by a separate written resolution of the Commission. 8. This Resolution shall be in full force and effect after its adoption. ADOPTED at a meeting of the Commission held on January 24, 2019, at 1308 County- City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ Marcia I. Jones, President ATTEST: ______________________________ Donald E. Inks, Secretary ITEM: 5B1 THIRD AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT This Third Amendment To Real Estate Purchase Agreement (this “Third Amendment”) is made on January 24, 2019 (the “Effective Date”), by and between the South Bend Redevelopment Commission, the governing body of the City of South Bend Department of Redevelopment (“Seller”), and Cressy & Everett Commercial Corporation, doing business as Newmark Grubb Cressy & Everett, an Indiana corporation with its principal place of business at 4100 Edison Lakes Parkway, Suite 350, Mishawaka, Indiana 46545 (“Buyer”) (each a “Party,” and collectively the “Parties”). RECITALS A.Seller and Buyer entered into that certain Real Estate Purchase Agreement dated May 11, 2017, as amended by the First Amendment To Real Estate Purchase Agreement dated July 27, 2017 and the Second Amendment to Real Estate Purchase Agreement dated November 20, 2017 (collectively, the “Purchase Agreement”), for the purchase and sale of the Property (as defined in the Purchase Agreement) located in the City of South Bend (the “City”). B.Buyer would like to extend the date for completion of its Property Improvements (as defined in the Purchase Agreement) obligation, and Seller has agreed to so extend the completion date as set forth herein. NOW, THEREFORE, in consideration of the mutual promises and obligations in this Third Amendment and the Purchase Agreement, the adequacy of which consideration is hereby acknowledged, the Parties agree as follows: 1.In Section 11.A. of the Purchase Agreement, which created for the Buyer a post- closing obligation to redevelop of the Property, the term “twenty-four (24) months” shall be deleted and replaced with “thirty-six (36) months.” 2.Unless expressly modified by this Third Amendment, the terms and provisions of the Purchase Agreement remain in full force and effect. 3.Capitalized terms used in this Third Amendment will have the meanings set forth in the Purchase Agreement unless otherwise stated herein. Signature Page Follows ITEM: 5B2 IN WITNESS WHEREOF, the Parties hereby execute this Third Amendment to Real Estate Purchase Agreement to be effective on the Effective Date stated above. BUYER: Cressy & Everett Commercial Corporation, doing business as Newmark Grubb Cressy & Everett, an Indiana corporation __________________________ Edward Bradley, Senior VP and Principal Dated: SELLER: City of South Bend, Department of Redevelopment, by and through its governing body, the South Bend Redevelopment Commission __________________________ Marcia I. Jones, President ATTEST: __________________________ Donald E. Inks, Secretary 1 FOURTH AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT This Fourth Amendment To Real Estate Purchase Agreement (this “Fourth Amendment”) is made effective as of January 24, 2019 (the “Effective Date”), by and between the City of South Bend, Indiana, Department of Redevelopment, acting by and through its governing body, the South Bend Redevelopment Commission (“Seller”) and Franklin Street Technology Park LLC, an Indiana limited liability company with its principal place of business 814 Marietta Street, South Bend, Indiana 46601 (“Buyer”) (each a “Party” and together the “Parties”). RECITALS A.Buyer and Seller entered into that certain Real Estate Purchase Agreement, dated February 22, 2018 (“the “Purchase Agreement”), as subsequently amended on May 24, 2018 by that certain First Amendment to Real Estate Purchase Agreement (the “First Amendment”), on June 28, 2018 by that certain Second Amendment to Real Estate Purchase Agreement (the “Second Amendment”), and on September 13, 2018 by that certain Third Amendment to Real Estate Purchase Agreement (the “Third Amendment” and collectively, the “Agreement”), for the purchase and sale of the Property (as defined in the Purchase Agreement) located in the City of South Bend. B.Buyer desires additional time to close on the purchase of the Property, and Seller wishes to provide Buyer with such additional time. C.The Parties wish to further amend the Agreement as set forth herein. NOW, THEREFORE, in consideration of the mutual promises and obligations in this Second Amendment and the Agreement, the adequacy of which consideration is hereby acknowledged, the Parties agree as follows: 1.Section 10.A. of the Agreement shall be deleted in its entirety and replaced with the following: “Unless this Agreement is earlier terminated, the Closing shall be held at the office of the Title Company, and the Closing Date shall be a mutually agreeable date not later than Three Hundred Thirty (330) days after the end of the Due Diligence Period.” 2. Unless expressly modified by this Fourth Amendment, the terms and provisions of the Agreement remain in full force and effect. 3.Capitalized terms used in this Fourth Amendment will have the meanings set forth in the Agreement unless otherwise stated herein. SIGNATURE PAGE FOLLOWS ITEM: 5B3 2 IN WITNESS WHEREOF, the Parties hereby execute this Fourth Amendment to Real Estate Purchase Agreement to be effective on the Effective Date stated above. BUYER: Franklin Street Technology Park LLC, an Indiana limited liability company __________________________ Charles S. Hayes, Managing Member SELLER: City of South Bend, Department of Redevelopment, by and through its governing body, the South Bend Redevelopment Commission __________________________ Marcia I. Jones, President ATTEST: __________________________ Donald E. Inks, Secretary ITEM: 5B4 Redevelopment Commission Agenda Item DATE: January 22, 2019 FROM: Kara Boyles, City Engineer SUBJECT: Budget Increase Request – Water Works – Olive GAC Plant Improvements Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington PURPOSE OF REQUEST: Funding for professional engineering services in the amount of $250,000 for a total of $1,036,000. Specifics: The results of the preliminary engineering study recommended approximately $700,000 in needed improvements to replace the chlorination and fluoride system. Various code updates will be required due to the corrosive nature of bulk sodium hypochlorite. In addition, the modified sodium hypochlorite room will include a 10’ wide by 14’ tall rollup door for future tank replacement. History: This project involves the rehabilitation of Olive GAC plant. Replacement of the GAC media is needed for water quality and regulatory compliance. The project also includes upgrades to chlorination and the fluoride system. The natural gas heating unit is also to be replaced. This request for funding will help the South Bend Water Works complete a portion of their 6-Year Partial Capital Improvement and Replacement Plan. This project was listed as a critical project, and identified in the Indiana Utility Regulatory Commission (IURC) testimony as projects to be funded with TIF in 2018. INTERNAL USE ONLY: Project Code: _______18J009________________________________________; Total Amount new/change (inc/dec) in budget: ___$250K_______; Break down: Costs: Engineering Amt: _________$310K_____________; Other Prof Serv Amt_________________; Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________; Building Imp Amt___$726K______; Sewers Amt_________; Other (specify) Amt: ________________ ___________________________________________. Going to BPW for Contracting? Y/N Is this item ready to encumber now? ____ Existing PO#___245232_____ Inc/Dec $_____________ ITEM: 5B5 Redevelopment Commission Agenda Item DATE: January 22, 2019 FROM: Kara Boyles, City Engineer SUBJECT: Budget Request – Water Works – North Station Filtration Plant Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington PURPOSE OF REQUEST: Total funding in the amount of $950,000 for professional engineering services and construction of the improvements. Specifics: Many of the assets, including the chemical storage and PLC, have been operating well beyond their useful lives and are in need of replacement to maintain operability/system reliability. This project involves the rehabilitation of the North Station Filtration plant. The list of upgrades and replacements includes: the outdated chlorine gas system, scrubber chemical, filter media, raw water piping, dehumidification system, HVAC compressors, outdated PLCs, and the high service motors and pumps. Funding for this project has been allocated in both 2019 and 2020 for a total of approximately $1.6M. This request for funding will help the South Bend Water Works complete a portion of their 6-Year Partial Capital Improvement and Replacement Plan. This project was listed as a critical project, and identified in the Indiana Utility Regulatory Commission (IURC) testimony as projects to be funded with TIF in 2018. INTERNAL USE ONLY: Project Code: _______________________________________________; Total Amount new/change (inc/dec) in budget: _____$950K__________; Break down: Costs: Engineering Amt: ______$200K________________; Other Prof Serv Amt_________________; Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________; Building Imp Amt___$750K_____; Sewers Amt_________; Other (specify) Amt: ________________ ___________________________________________. Going to BPW for Contracting? Y/N Is this item ready to encumber now? ____ Existing PO#__________ Inc/Dec $_____________ ITEM: 5B6 1 DEVELOPMENT AGREEMENT This Development Agreement (this “Agreement”), is effective as of January 24, 2019 (the “Effective Date”), by and between the City of South Bend, Department of Redevelopment, acting by and through its governing body, the South Bend Redevelopment Commission (the “Commission”), and Bald Mountain LLC, an Indiana limited liability company (the “Developer”) (each, a “Party,” and collectively, the “Parties”). RECITALS WHEREAS, the Commission exists and operates under the provisions of the Redevelopment of Cities and Towns Act of 1953, as amended (I.C. 36-7-14 et seq., the “Act”); and WHEREAS, the Act provides that the clearance, replanning, and redevelopment of redevelopment areas are public uses and purposes for which public money may be spent; and WHEREAS, the Developer owns certain real property described in Exhibit A, together with all improvements thereon and all easements, rights, licenses, and other interests appurtenant thereto (collectively, the “Developer Property”); and WHEREAS, the Developer desires to construct, renovate, or otherwise rehabilitate certain elements of the Developer Property (the “Project”) in accordance with the project plan (the “Project Plan”) attached hereto as Exhibit B; and WHEREAS, the Developer Property is located within the corporate boundaries of the City of South Bend, Indiana (the “City”), within the River West Development Area (the “Area”); and WHEREAS, the Commission has adopted (and subsequently amended, from time to time) a development plan, which contemplates development of the Area consistent with the Project; and WHEREAS, the Commission believes that accomplishing the Project as described herein is in the best interests of the health, safety, and welfare of the City and its residents; and WHEREAS, the Commission desires to facilitate and assist the Project by undertaking the local public improvements stated in Exhibit C (the “Local Public Improvements”) and the financing thereof, subject to the terms and conditions of this Agreement and in accordance with the Act. NOW, THEREFORE, in consideration of the mutual promises and obligations stated in this Agreement, the adequacy of which is hereby acknowledged, the Parties agree as follows: SECTION 1. DEFINITIONS. Unless otherwise defined in this Agreement, capitalized terms used in this Agreement have the following meanings: ITEM: 5B7 2 1.1 Assessed Value. “Assessed Value” means the market value-in-use of a property, used for property tax assessment purposes as determined by the St. Joseph County Assessor. 1.2 Board of Works. “Board of Works” means the Board of Public Works of the City, a public body granted the power to award contracts for public works pursuant to I.C. 36-1-12. 1.3 Funding Amount. “Funding Amount” means an amount not to exceed Three Hundred Fifty Thousand Dollars ($350,000.00) 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. 1.4 Pavers. “Pavers” means any surplus pavers remaining in storage from a previous project, provided in “as-is” condition by the Commission for Developer’s use in connection with the Project. 1.5 Private Investment. “Private Investment” means an amount no less than Nine Million Dollars ($9,000,000.00) to be expended by the Developer for the costs associated with constructing the improvements set forth in the Project Plan, including architectural, engineering, and any other costs directly related to completion of the Project that are expected to contribute to increases in the Assessed Value of the Developer Property. Developer’s failure to expend the Private Investment by the Mandatory Completion Date (as defined in Section 4.5 below) shall be considered a material default under this Agreement without any requirement of notice of or an opportunity to cure such failure. SECTION 2. INTERPRETATION, TERMS, AND RECITALS. 2.1 Interpretation. (a)The terms “herein,” “hereto,” “hereunder,” and all terms of similar import shall be deemed to refer to this Agreement as a whole rather than to any Article of, Section of, or Exhibit to this Agreement. (b)Unless otherwise specified, references in this Agreement to (i) “Section” or “Article” shall be deemed to refer to the Section or Article of this Agreement bearing the number so specified, (ii) “Exhibit” shall be deemed to refer to the Exhibit of this Agreement bearing the letter or number so specified, and (iii) references to this “Agreement” shall mean this Agreement and any exhibits and attachments hereto. (c)Captions used for or in Sections, Articles, and Exhibits of this Agreement are for convenience of reference only and shall not affect the construction of this Agreement. (d)The terms “include”, “including” and “such as” shall each be construed as if followed by the phrase “without being limited to.” 2.2 Recitals. The Recitals set forth above are incorporated into and are a part of this Agreement for all purposes. 3 SECTION 3. ACCESS. 3.1 Grant of Easement. The Developer will grant to the Commission a temporary, non- exclusive easement on, in, over, under and across any part(s) of the Developer Property (the “Easement”) in the form attached hereto as Exhibit D, to permit the Commission to fulfill its obligations under this Agreement, including the construction, equipping, inspection, and delivery of the Local Public Improvements. The Easement shall (a) inure to the benefit of the Commission and the Board of Works or any contractors acting on behalf of the Commission in connection with the construction, equipping, inspection, and delivery of the Local Public Improvements; (b) shall bind the Developer and its grantees, successors, and assigns; and (c) shall terminate no later than upon completion of the Local Public Improvements, as determined by the Board of Works. SECTION 4. DEVELOPER’S OBLIGATIONS. 4.1 Generally. The Parties acknowledge and agree that the Commission’s agreements to perform and abide by the covenants and obligations set forth in this Agreement are material consideration for the Developer’s commitment to perform and abide by the covenants and obligations of the Developer contained in this Agreement. 4.2 The Project. (a) The Developer will perform all necessary work to complete the improvements set forth in the Project Plan attached hereto as Exhibit B and the plans and specifications to be approved by the Commission pursuant to Section 4.8 of this Agreement, which improvements shall comply with all zoning and land use laws and ordinances. (b)The Developer will expend the Private Investment to complete the Project in accordance with the Project Plan attached hereto as Exhibit B and the plans and specifications to be approved by the Commission pursuant to Section 4.8 of this Agreement. 4.3 Cooperation. The Developer agrees to endorse and support the Commission’s efforts to expedite the Local Public Improvements through any required planning, design, public bidding, construction, inspection, waiver, permitting, and related regulatory processes. 4.4 Obtain Necessary Easements. The Developer agrees to obtain any and all easements from any governmental entity and/or any other third parties that the Developer or the Commission deems necessary or advisable in order to complete the Local Public Improvements, and the obtaining of such easements is a condition precedent to the Commission’s obligations under this Agreement. 4.5 Timeframe for Completion. The Developer hereby agrees to complete the Project and any other obligations the Developer may have under this Agreement by the date by October 31, 2021 (the “Mandatory Project Completion Date”). Notwithstanding any provision of this Agreement to the contrary, the Developer’s failure to complete the Project, expend the entirety of the Private Investment on the Project, or perform any other obligations the Developer may have under this Agreement by the Mandatory Project Completion Date will constitute a material default under this Agreement without any requirement of notice of or an opportunity to cure such failure. 4 4.6 Developer’s Employment Obligations. The Developer shall create Fifteen (15) new full-time jobs located at the Developer Property, with a total annual payroll of no less than Seven Hundred Fifty Thousand Dollars ($750,000.00) per year (the “Job Creation Requirement”) by the date that is Thirty-Six (36) months after the Effective Date of this Agreement (the “Job Creation Deadline”) and maintain said jobs for at least the period of time described in Section 4.7(c) below. Notwithstanding any provision of this Agreement to the contrary, the Developer’s failure to satisfy the Job Creation Requirement by the Job Creation Deadline will constitute a material default under this Agreement without any requirement of notice of or an opportunity to cure such failure. 4.7 Reporting Obligations. (a) Upon the letting of contracts for substantial portions of the Project and again upon substantial completion of the Project, the Developer hereby agrees to report to the Commission the number of local contractors and local laborers involved in the Project, the amount of bid awards for each contract related to the Project, and information regarding which contractor is awarded each contract with respect to the Project. (b) On or before June 30 and December 31 of each year until substantial completion of the Project, the Developer shall submit to the Commission a report demonstrating the Developer’s good-faith compliance with the terms of this Agreement. The report shall include the following information and documents: (i) a status report of the construction completed to date, (ii) an update on the project schedule, (iii) an itemized accounting generally identifying the Private Investment to date, and (iv) a status report of the number of jobs created for employment at the Developer Property. (c) On or before April 15 of the year that is one year after substantial completion of the Project and on each April 15 thereafter until April 15 of the year which is three (3) years after substantial completion of the Project, the Developer shall submit to the Commission a report with the following information: (i) the number of jobs created as a result of the Project and wage and benefit information for the jobs created; and (ii) a detailed description of the of the job and wage details for the number of people employed by the Developer in connection with the Project. 4.8 Submission of Plans and Specifications for Project. Promptly upon completion of all plans and specifications for the Project, or changes thereto, the Developer shall deliver a complete set thereof to the Commission. The Commission may approve or disapprove said plans and specifications for the Project in its sole discretion and may request revisions or amendments to be made to the same. 4.9 Costs and Expenses of Construction of Project. The Developer hereby agrees to pay, or cause to be paid, all costs and expenses of construction for the Project (including legal fees, architectural and engineering fees), exclusive of the Local Public Improvements, which shall be paid for by the Commission by and through the Funding Amount subject to the terms of this Agreement. 5 4.10 Specifications for Local Public Improvements. The Developer will be responsible for the preparation of all bid specifications related to the Local Public Improvements, and the Developer will pay all costs and expenses of such preparation, provided, however, that if the Commission pays any costs or expenses of such preparation, then the amount paid by the Commission will be deducted from the Funding Amount. The Developer will submit all bid specifications related to the Local Public Improvements to the City of South Bend Engineering Department (the “Engineering Department”). The Engineering Department may approve or disapprove said bid specifications for the Project in its sole discretion and may request revisions or amendments to be made to the same. 4.11 Non-Interference. Developer hereby agrees to use commercially reasonable efforts to minimize disruption for those living and working near the Developer Property during construction of the Project. 4.12 Insurance. The Developer shall purchase and maintain comprehensive insurance coverage as is appropriate for the work being performed with respect to the Project. The Developer shall provide proof of such adequate insurance to the Commission and shall notify the Commission and the City of any change in or termination of such insurance. During the period of construction or provision of services regarding any Local Public Improvements, the Developer shall maintain insurance in the kinds and for at least the minimum amounts as described in Exhibit E attached hereto and the Commission and the City shall be named as additional insureds on such policies (but not on any worker’s compensation policies). 4.13 Information. The Developer agrees to provide any and all due diligence items with respect to the Project reasonably requested by the Commission. SECTION 5. COMMISSION’S OBLIGATIONS. 5.1 Generally. The Parties acknowledge and agree that the Developer’s agreement to perform and abide by the covenants and obligations set forth in this Agreement is material consideration for the Commission’s commitment to perform and abide by the covenants and obligations of the Commission contained in this Agreement. 5.2 Completion of Local Public Improvements. (a)The Commission hereby agrees to complete (or cause to be completed) the Local Public Improvements described in Exhibit C attached hereto on a schedule to be reasonably determined and agreed to by the Commission and the Developer, as may be modified due to unforeseen circumstances and delays. (b)The Commission makes no guarantee that the Pavers will be of a quality or quantity sufficient for the Project, and any additional Pavers may be acquired using the Funding Amount in connection with the Local Public Improvements or at Developer’s sole expense. (c) Before any work on the Local Public Improvements will commence, (a) the Commission will have received satisfactory plans and specifications for the Project and approved the same in accordance with Section 4.8 of this Agreement, and (b) the 6 Engineering Department will have received satisfactory bid specifications for the Local Public Improvements and approved the same in accordance with Section 4.10 of this Agreement. (d)The Local Public Improvements will be completed in accordance with all applicable public bidding and contracting laws and will be subject to inspection by the Engineering Department or its designee. (e)Notwithstanding anything contained herein to the contrary, in the event the costs associated with the Local Public Improvements are in excess of the Funding Amount, Developer, at its sole option, may determine to pay to the Commission the amount of the excess costs to permit timely completion of the Local Public Improvements by the Commission, or an agent of the Commission, which amounts shall be applied for such purpose. If Developer chooses not to pay any such excess costs of the Local Public Improvements (above the Funding Amount), the Commission may reduce the scope of the Local Public Improvements to the amount which may be funded with the Funding Amount. In no event will the Commission be required to spend more than the Funding Amount in connection with the Local Public Improvements. 5.3 Cooperation. The Commission agrees to endorse and support the Developer’s efforts to expedite the Project through any required planning, design, permitting, waiver, and related regulatory processes, provided, however, that the Commission will not be required to expend any money in connection therewith. 5.4 Public Announcements, Press Releases, and Marketing Materials. The Commission hereby agrees to coordinate all public announcements and press releases relating to the Project with the Developer. SECTION 6. COOPERATION IN THE EVENT OF LEGAL CHALLENGE. 6.1 Cooperation. In the event of any administrative, legal, or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of this Agreement, the Parties shall cooperate in defending such action or proceeding to settlement or final judgment including all appeals. Each Party shall select its own legal counsel and retain such counsel at its own expense, and in no event shall the Commission be required to bear the fees and costs of the Developer’s attorneys nor shall the Developer be required to bear the fees and costs of the Commission’s attorneys. The Parties agree that if any other provision of this Agreement, or this Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this Section 6.1, which shall survive such invalidation, nullification, or setting aside. SECTION 7. DEFAULT. 7.1 Default. Any failure by either Party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other Party, shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. Upon the 7 occurrence of a default under this Agreement, the non-defaulting Party may (a) terminate this Agreement, or (b) institute legal proceedings at law or in equity (including any action to compel specific performance) seeking remedies for such default. If the default is cured within thirty (30) days after the notice described in this Section 7.1, then no default shall exist and the noticing Party shall take no further action. 7.2 Reimbursement Obligation for Material Default. In the event that the Developer fails (a) to complete the Project by the Mandatory Project Completion Date or (b) to expend the full amount of the Private Investment by the Mandatory Project Completion Date, then upon the written demand of the Commission, the Developer will repay the Commission One Hundred Fifty Percent (150%) of the portion of the Funding Amount expended by the Commission in furtherance of the Local Public Improvements as of the date of the Commission’s demand. In the event that the Developer fails to satisfy the Job Creation Requirement by the Job Creation Deadline, then upon the written demand of the Commission, the Developer will repay the Commission an amount equal to Fifty Thousand Dollars ($50,000.00) multiplied by the number of jobs by which the Developer fell short of the Job Creation Requirement as of the date of the Commission’s demand. 7.3 Force Majeure. Notwithstanding anything to the contrary contained in this Agreement, none of the Parties shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of terrorism, restrictions imposed or mandated by governmental entities, enactment of conflicting state or federal laws or regulations, new or supplemental environments regulations, contract defaults by third parties, or similar basis for excused performance which is not within the reasonable control of the Party to be excused (each, an event of “Force Majeure”). Upon the request of any of the Parties, a reasonable extension of any date or deadline set forth in this Agreement due to such cause will be granted in writing for a period necessitated by the event of Force Majeure, or longer as may be mutually agreed upon by all the Parties. SECTION 8. NO AGENCY, JOINT VENTURE, OR PARTNERSHIP; CONFLICT OF INTEREST; INDEMNITY. 8.1 No Agency, Joint Venture or Partnership. The Parties acknowledge and agree that: (a) The Project is a private development; (b)None of the Commission, the Board of Works, or the Developer has any interest or responsibilities for, or due to, third parties concerning any improvements until such time, and only until such time, that the Commission, the Board of Works, and/or the Developer expressly accepts the same; and (c) The Parties hereby renounce the existence of any form of agency relationship, joint venture, or partnership between the Commission, the Board of Works, and the Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between the Commission, the Board of Works, and the Developer. 8 8.2 Conflict of Interest; Commission Representatives Not Individually Liable. No member, official, or employee of the Commission or the City may have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership, or association in which he or she is, directly or indirectly, interested. No member, official, or employee of the Commission or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Commission or for any amount which may become due to the Developer, or its successors and assigns, or on any obligations under the terms of this Agreement. No partner, member, employee, or agent of the Developer or successors of them shall be personally liable to the Commission under this Agreement. 8.3 Indemnity. The Developer agrees to indemnify, defend, and hold harmless the Commission and the City from and against any third-party claims suffered by the Commission or the City resulting from or incurred in connection with the Local Public Improvements or the Project. SECTION 9. MISCELLANEOUS. 9.1 Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in full force and effect unless amended or modified by mutual consent of the parties. 9.2 Waiver. Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall nay single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of the same or of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of any 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. 9.3 Other Necessary Acts. Each Party shall execute and deliver to the other Parties all such other further instruments and documents as may be reasonably necessary to accomplish the Project and the Local Public Improvements contemplated by this Agreement and to provide and secure to the other Parties the full and complete enjoyment of its rights and privileges hereunder. Notwithstanding the foregoing, the Parties understand and agree that certain actions contemplated by this Agreement may be required to be undertaken by persons, agencies, or entities that are not a party to this Agreement, including, but not limited to certain permits, consents, and/or approvals (to the extent they have not yet been obtained and completed), and that any action by such third parties shall require independent approval by the respective person, agency, entity, or governing body thereof. 9.4 Dispute Resolution; Waiver of Jury Trial. Any action to enforce the terms or conditions of this Agreement or otherwise concerning a dispute under this Agreement will be commenced in the courts of St. Joseph County, Indiana, unless the Parties mutually agree to an alternative method of dispute resolution. The Parties acknowledge that disputes arising under this 9 Agreement are likely to be complex and they desire to streamline and minimize the cost of resolving such disputes. In any legal proceeding, each Party irrevocably waives the right to trial by jury in any action, counterclaim, dispute, or proceeding based upon, or related to, the subject matter of this Agreement. This waiver applies to all claims against all parties to such actions and proceedings. This waiver is knowingly, intentionally, and voluntarily made by both Parties. 9.5 Attorneys’ Fees. In the event of any litigation, mediation, or arbitration between the Parties regarding an alleged breach of this Agreement, none of the Parties shall be entitled to any award of attorney’s fees. 9.6 Equal Employment Opportunity. The Developer, for itself and its successors and assigns, agrees that during the construction of the Project: (a) The Developer will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Developer agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause; and (b)The Developer will state, in all solicitations or advertisements for employees placed by or on behalf of the Developer, that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 9.7 Counterparts. This Agreement 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. 9.8 Notices and Demands. Any notice, demand, or other communication required or permitted under the terms of this Agreement may be delivered (a) by hand-delivery (which will be deemed delivered at the time of receipt), (b) by registered or certified mail, return receipt requested (which will be deemed delivered three (3) days after mailing), or (c) by overnight courier service (which will be deemed delivered on the next business day) to each Party’s respective addresses and representatives stated below. Developer: Bald Mountain LLC 21953 Protecta Drive Elkhart, IN 46516 Attn: E. Lewis Hansell, Manager With a copy to: Great Lakes Capital LLC 112 W. Jefferson Blvd., Ste. 200 South Bend, IN 46601 Attn: Jeff Smoke, Director of Development Commission: South Bend Redevelopment Commission 1400 S. County-City Building 227 W. Jefferson Blvd. 10 South Bend, IN 46601 Attn: Executive Director, South Bend Department of Community Investment With a copy to: South Bend Legal Department 1200 S. County-City Building 227 W. Jefferson Blvd. South Bend, IN 46601 Attn: Corporation Counsel 9.9 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Indiana. 9.10 Authority. Each undersigned person executing and delivering this Agreement on behalf of a Party represents and certifies that he or she is the duly authorized officer or representative of such Party, that he or she has been fully empowered to execute and deliver this Agreement on behalf of such Party, and that all necessary action to execute and deliver this Agreement has been taken by such Party. 9.11 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any person, firm, or corporation other than the Parties hereto and their respective successors or assigns, any remedy or claim under or by reason of this Agreement or any term, covenant, or condition hereof, as third-party beneficiaries or otherwise, and all of the terms, covenants, and conditions hereof shall be for the sole and exclusive benefit of the Parties herein. 9.12 Assignment. The Developer’s rights under this Agreement shall be personal to the Developer and shall not run with the land. The Developer may not assign its rights or obligations under this Agreement to any third party without obtaining the Commission’s prior written consent to such assignment, which the Commission may give or withhold in its sole discretion. In the event the Developer seeks the Commission’s consent to any such assignment, the Developer shall provide to the Commission all relevant information concerning the identities of the persons or entities proposed to be involved in and an explanation of the purposes for the proposed assignment(s). 9.13 Further Assurances. The Parties agree that they will each undertake in good faith, as permitted by law, any action and execute and deliver any document reasonably required to carry out the intents and purposes of this Agreement. 9.14 Exhibits. All exhibits described herein and attached hereto are incorporated into this Agreement by reference. 9.15 Entire Agreement. No representation, promise, or inducement not included in this Agreement will be binding upon the Parties hereto. This Agreement cannot be modified except by mutual agreement of the Parties set forth in a written instrument signed by the Parties’ authorized representatives. 9.16 Time. Time is of the essence of this Agreement. 11 [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the Parties hereby execute this Agreement to be effective as of the Effective Date stated above. SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ Marcia I. Jones, President ATTEST: ______________________________ Donald E. Inks, Secretary BALD MOUNTAIN LLC By: _____________________________________ E. Lewis Hansell, Manager EXHIBIT A Description of Developer Property A parcel of real property located in the City of South Bend, St. Joseph County, Indiana, more particularly described as follows: Lot 260AA of the record plat of the Original Town of South Bend, Jefferson and Main, Second Replat, recorded on March 25, 2013, as Document No. 1308726 in the Office of the Recorder of St. Joseph County. Parcel Key No. 018-3007-0231 EXHIBIT B Project Plan The Developer will complete the following work in accordance with the terms and conditions of this Agreement and in compliance with all applicable laws and regulations: construct a minimum five-story mixed-use building containing retail, restaurant, and Class A office space. EXHIBIT C Description of Local Public Improvements The Commission will complete, or cause to be completed, the following work in accordance with the terms and conditions of this Agreement and in compliance with all applicable laws and regulations: site work and improvements in support of the construction of the Project. EXHIBIT D Form of Easement GRANT OF TEMPORARY EASEMENT THIS INDENTURE, made as of the day of _______________, 2019 (the “Effective Date”), by and between Bald Mountain LLC, an Indiana limited liability company with offices at 21953 Protecta Drive, Elkhart, IN 46516 (the “Grantor”), and the South Bend Redevelopment Commission, governing body of the City of South Bend Department of Redevelopment, 1400 S. County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601 (the “Grantee”). WITNESSETH: For the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which Grantor hereby acknowledges, Grantor hereby grants, conveys, and warrants to Grantee a temporary, non- exclusive easement (the “Easement”) on, in, over, under and across the real property described in attached Exhibit 1 (the “Property”) for the construction, equipping, and delivery of certain improvements on the Property (the “Local Public Improvements”), together with the right of ingress to and egress from the Easement for said purposes, all pursuant to a certain Development Agreement by and between Grantor and Grantee, dated January 24, 2019 (the “Development Agreement”). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Development Agreement. The Easement granted herein shall pertain to the air, surface, and subsurface rights and interests of Grantor, for the use and benefit of Grantee, and its successors and assigns, to the extent necessary to accomplish and carry out the construction, equipping, and delivery of the Local Improvements on the Property. The Easement hereby granted includes the right and privilege for Grantee at reasonable times to clean and remove from said Easement any debris or obstructions interfering with said Easement. The Easement granted herein, and its associated benefits and obligations, shall inure to the benefit of Grantee and Grantee’s contractors acting on Grantee’s behalf in connection with the Local Public Improvements. Notwithstanding anything contained herein to the contrary, unless extended in writing by Grantor, the Easement shall terminate and be of no further force and effect on the date (hereinafter, the “Construction Termination Date”) of the earliest of the following: (a) completion of the Local Public Improvements; (b) expiration or earlier termination of the Development Agreement; or (c) such earlier date as Grantor and Grantee may agree to in writing. IN WITNESS WHEREOF, Grantor has executed this Grant of Temporary Easement on the date shown in the acknowledgment set forth below to be effective as of the Effective Date. GRANTOR: BALD MOUNTAIN LLC By: E.Lewis Hansell, Manager STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, the undersigned, a Notary Public in and for said State, personally appeared E. Lewis Hansell, to me known to be the Manager of the Grantor in the above Grant of Temporary Easement, and acknowledged the execution of the same as the Grantor’s free and voluntary act and deed. WITNESS my hand and Notarial Seal this day of _______________, 2019. _______________________________________ ____________________, Notary Public Residing in County, IN My Commission Expires: _______________________ This instrument was prepared by Sandra L. Kennedy, Assistant City Attorney, City of South Bend, Department of Law, 1200 S. County-City Building, 227 W. Jefferson Blvd., South Bend, IN 46601. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Sandra L. Kennedy. EXHIBIT 1 Description of Property A parcel of real property located in the City of South Bend, St. Joseph County, Indiana, more particularly described as follows: Lot 260AA of the record plat of the Original Town of South Bend, Jefferson and Main, Second Replat, recorded on March 25, 2013, as Document No. 1308726 in the Office of the Recorder of St. Joseph County. Parcel Key No. 018-3007-0231 EXHIBIT E Minimum Insurance Amounts A.Worker’s Compensation 1.State Statutory 2.Applicable Federal Statutory 3.Employer’s Liability $100,000.00 B.Comprehensive General Liability 1.Bodily Injury a.$5,000,000.00 Each Occurrence b. $5,000,000.00 Annual Aggregate Products and Completed Operation 2.Property Damage a.$5,000,000.00 Each Occurrence b. $5,000,000.00 Annual Aggregate C.Comprehensive Automobile Liability 1.Bodily Injury a.$500,000.00 Each Person b. $500,000.00 Each Accident 2.Property Damage a.$500,000.00 Each Occurrence 1 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “First Amendment”) is made on January 24, 2019, by and between the South Bend Redevelopment Commission, the governing body of the City of South Bend Department of Redevelopment (the “Commission”), and Unity Gardens, Inc., an Indiana non-profit corporation (the “Developer”) (each a “Party,” and collectively the “Parties”). RECITALS A.The Commission and the Developer entered into a Development Agreement dated effective October 27, 2016 (the “Development Agreement”), for the development of a Project in the River West Development Area. B.The Developer has been working with the City of South Bend (the “City”) Engineering Department to effectively connect portions of the Project to existing utility services, and the cost to make the connections is higher than initially anticipated. 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 1.2 of the Development Agreement shall be deleted in its entirety and replaced with the following: 1.2 Funding Amount. “Funding Amount” means an amount not to exceed Seventy-Five Thousand Dollars ($75,000) 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. Further, the Parties agree that the Funding Amount shall be spent as set forth on Exhibit C. 2.Section 9.7 shall be revised to designate the Director of Economic Resources and Business Development as the contact person for the Commission. 3.Exhibit C, Description of Local Public Improvements, shall be deleted in its entirety and replaced with the attached Exhibit C. 4.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. 5.Capitalized terms used in this First Amendment will have the meanings set forth in the Development Agreement unless otherwise stated herein. ITEM: 5B8 2 6.The recitals set forth above are hereby incorporated into the operative provisions of this First Amendment. 7.This First Amendment will be governed and construed in accordance with the laws of the State of Indiana. 8.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 3 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: B y:____________________________________ Donald E. Inks, Secretary DEVELOPER: UNITY GARDENS, INC. B y: _________________________________ Sara Stewart, President 4 EXHIBIT C Description of Local Public Improvements The Commission will complete, or cause to be completed, the following work in accordance with the terms and conditions of this Agreement and in compliance with all applicable laws and regulations: utility connections supporting the construction of the Project. ITEM: 5B9 ITEM: 5C1