Loading...
HomeMy WebLinkAbout4766-19 SWGS Properties, LLC Confirming Tax Abatement RE OI,WTJON Passed by the Common Council of the City of South Bend, Indiana February 11 , 20 19 Attest: i, ,,, City Clerk Kareemah N. owter Attest* President of Common Council Presented by me to the Mayor of the City of South Bend, Indiana February 11 , 20 19. /7/1--(1- City Clerk Kar mah N. Fowler Approved and signed by me TOO/UTib 20 1 I United States of America , 'N - vq-,'Fb Pi FE 20 2019 lertificate ST JOSEPH AUDITOR _-- COUNTY STATE OF INDIANA, COUNTY OF ST JOSEPH, ss: I, Kareemah N. 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 FEB l i 2019 RESOLUTION 4766-19 A RESOLUTION CONFIRMING THE ADOPTION OF A DE - . t"*---------i RESOLUTION DESIGNATING CERTAIN AREAS WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS 2920 W SAMPLE STREET, SOUTH BEND, IN 46619 AS AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A SIX (6) YEAR VACANT BUILDING TAX ABATEMENT FOR SWGS PROPERTIES, LLC ADOPTED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, FEBRUARY 11, 2019. PRESENTED TO, APPROVED AND SIGNED BY MAYOR PETE BUTTIGIEG, FEBRUARY 18, 2019. 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 hereunto set my hand and affixed the official Seal of the City of South Bend. St. Joseph County. Indiana. thisp261- day of 20 /9 Kareemah N. Fowler Clerk of the City of South Bend St. Joseph County, Indiana 44"4-14"Lisr "i'll-e4A----) Y• Kareemah N. Fowler BILL NO. 19-08 RESOLUTION NO. 4766-19 A RESOLUTION CONFIRMING THE ADOPTION OF A DECLARATORY RESOLUTION DESIGNATING CERTAIN AREAS WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS 2920 W Sample Street, South Bend, IN 46619 AS AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A SIX (6) YEAR VACANT BUILDING TAX ABATEMENT FOR SWGS Properties, 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 2920 W Sample Street, South Bend, IN 46619 and which is more particularly described as follows: 400' On Sample Beg 330' E & 35' S Nw Cor Nw Sec 15-37-2e and which has Key Number 018-8075-282401 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 limited to three (3) 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 vacant building tax deduction for a period of six (6) years outlined below as well as shown by the attachment pursuant to Indiana Code 6-1.1-12.1- 17 and further determines that the petition, the Memorandum of Agreement between the Petitioner and the City of South Bend, and the Statement of Benefits comply with Chapter 2, Article 6, of the Municipal Code of the City of South Bend and Indiana Code 6-1.1-12 et seq. Year 1 - 100% Year 2 - 100% Year 3 - 95% Year 4 - 90% Year 5 - 80% Year 6 - 70% SECTION III. This Resolution shall be in full force and effect from and after its adoption by the Common Council and approved by t - ► ayor. Tim Scott, Council President South Bend Common Council PRESLN1Li(2f iilac!y s �PPR0 FE: MEMORANDUM OF AGREEMENT (VACANT BUILDING TAX ABATEMENT) This Memorandum of Agreement (Agreement) dated as of February 4, 2019, serves as confirmation of a commitment by SWGS Properties, LLC (the"Applicant"),pending a February 11t'', 2019, 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 Applicant. 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 six (6) year vacant building 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$1,265,000 associated with a building purchase and its renovation. The property is located at 2920 W Sample Street, South Bend, IN 46619. This real property project will retain four (4) permanent full-time jobs with a total estimated annual payroll of$160,576 and create at least sixteen(16) new permanent full-time jobs with a total estimated annual payroll of$624,000 within four years of the tax abatement. 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 1 ' Page 1 1 deductions if it determines that the Applicant has not made reasonable efforts to substantially comply with all he 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 me n the Applicant's compliance with the following: (a)making real property expenditures of no less than On Million Two Hundred and Sixty Five Thousand dollars ($1,265,000) for a building purchase and its ren vation;(b)this real property project will retain four(4)permanent full-time jobs with a total estimated ann al payroll of $160,576 and create at least sixteen (16) new permanent full-time jobs with a total esti ated annual payroll of$624,000 within four years of the tax abatement. 5. Factors Beyond Control. As used in this Agreement, factors beyond the control of the Applicant sha I only include factors not reasonably foreseeable at the time of designation application and submission of tatement 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 Ap licant 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 ces tion of operations at such facility, then the City may immediately terminate the Economic Re italization Area designation and associated tax abatement deductions, and upon such termination, req ire Applicant to repay all of the tax abatement savings received through the date of such termination. 7. 1 Notice/Hearing of Termination. In the event that the City determines that the Economic Re4italization 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 fron the date of such notice to arrange such meeting and to provide its evidence concerning why the ab ement termination and/or tax savings repayment should not occur. If. after giving such notice and rec iving such evidence,if any,the City determines that the abatement termination and/or the tax repayment act on is proper,the Applicant shall be provided with written notice and a hearing before the SBCC before an final action shall be taken terminating the abatement and/or requiring repayment of tax benefits. The Ap licant 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 Ap licant does not make timely repayment,the City shall be entitled to all reasonable costs and attorneys' fee incurred in the enforcement and collection of the tax abatement savings required to be repaid hereunder. 9. Modification/Entire Agreement. This Agreement and the schedules attached here to contain the ent re understanding between the City and the Applicant with respect to the subject matter hereof, and su ersede all prior and contemporaneous agreements and understandings. inducements, and conditions, ex ressed or implied,oral or written,except as herein contained. This Agreement may not be modified or am nded other than by an agreement in writing signed by the City and the Applicant. The Applicant un erstands 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. 2I 10. Waivers. Neither the failure nor any delay on the part of the City to exercise any right, remedy, po er or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exe cise 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 sue right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unl ss it is in writing and is signed by the party asserted to have granted such waiver. i l. Governing Laws of Indiana. This Agreement and all questions relating to its validity, inti iretation, performance, and enforcement shall be governed by the laws and decisions of the courts of the tate of Indiana. 12. Applicant's Consent to Jurisdiction. The Applicant hereby irrevocably consents to the jurisdiction of t e Courts of the State of Indiana and of the St. Joseph County Circuit or Superior Court in connection wilt 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. 1 13. Notices. All notices, requests, demands, and other communications required or permitted under thi Agreement shall be in writing and shall be deemed to have been received when delivered by hand or byfacsimile (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: SWGS Properties, LLC 21601 Durham Way Bristol, IN 46507 Attn: David Andre If to the City: City of South Bend, Indiana 227 West Jefferson Blvd. Suite 1400S South Bend, Indiana 46601 Attn: Daniel Buckenmeyer, Department of Community Investment 14. Assignment and Transfer Prohibited. This Agreement shall be binding upon and inure to the benefit of the City and the Applicant and their successors and assigns, except that no 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 31 all of which shall together constitute one and the same instrument. By executing this Agreement, each peron 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 ind pendent of and separable from each other, and no provision shall be affected or rendered invalid or un forceable by virtue of the fact that for any reason any other or others of them may be invalid or un forceable 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 per onally by the Applicant, its employees or agents with any liabilities or expenses of defense or be held per onally liable to the Applicant under any term or provision of this Agreement or because of the execution by uch party of this Agreement or because of any default by such party hereunder. 1 [Remainder of page intentionally blank.] i • 41 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. "Applicant" "City" SWGS Properties, LLC Cit • • _ - :t + diana By: /1/A------ By: David Andre, Manager Tim Scott President. South Bend Common Council Ap roved as to Legal Adequacy and Form this day of ,2019. By: Gavin Ferlic Chairperson,Community Investment Counsel, Sou end Com on uncil Committee By: Consel for Applicant Dan Buckenmeyer I Departmeommunit estment Pete Buttigieg Mayor 5I