HomeMy WebLinkAboutRDC Packet 9.26.2019 1South Bend Redevelopment Commission
227 West Jefferson Boulevard, Room 1308, South Bend, Indiana
Agenda
Regular Meeting, September 26, 2019 – 4:00 p.m.
227 W. JEFFERSON BLVD., 1300 SOUTH BEND, INDIANA
1.Roll Call
2.Approval of Minutes
A.Minutes of the Regular Meeting of Thursday, September 12, 2019
3.Approval of Claims
A.Claims Submitted September 26, 2019
4.Old Business
5.New Business
*Privilege of the floor after each item
A.River West Development Area
1.Third Amendment to Agreement to Buy and Sell Real Estate (618 W Marion)
–D2
2.Resolution No. 3503 (Declaring Certain Properties Blighted) - D2
3.Third Amendment (Ziker) – D2
4.First Amendment to Development Agreement (Bald Mountain, LLC) – D2
5.Real Estate Purchase Agreement (Masterbilt Inc)
6.Budget Request (Olive GAC Plant Construction) - D2
B.River East Development Area
1.Budget Request (Lift Station) – D4
C.Other
1.MOU (South Shore Line) - All
2.Resolution No. 3502 (South Shore Line) - All
3.Resolution No. 3491 (Setting Public Hearing for 2020 TIF Appropriations) - All
ITEM: 1
6.Progress Reports
A.Tax Abatement
B.Common Council
C.Other
7.Next Commission Meeting:
Thursday, October 10, 2019, 4:00 p.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
September 12, 2019
4:00 p.m. 227 West Jefferson Boulevard
Presiding: Marcia Jones, President South Bend, Indiana
The meeting was called to order at 4:24 p.m.
1.ROLL CALL
Members Present:Marcia Jones, President
Don Inks, Vice-President
Gavin Ferlic, Commissioner
Leslie Wesley, Commissioner
Members Absent: Quentin Phillips, Secretary
Todd Monk, Commissioner
Legal Counsel: Sandra Kennedy, Esq.
Redevelopment Staff: David Relos, RDC Staff
Mary Brazinsky, Board Secretary
Others Present: Daniel Buckenmeyer
Pam Meyer
Amanda Pietsch
Alkenya Aldridge
Tony Sergio
Kyle Silveus
Zach Hurst
Charlotte Brach
Benjamin Vanderveen
Jay Vanderveen
Monica Murphy
DCI
DCI
DCI
DCI
DCI
Engineering
Engineering
Engineering
51241 Old Cottage Dr.
51241 Old Cottage Dr.
WNDU
ITEM: 2A
South Bend Redevelopment Commission Regular Meeting – September 12, 2019
2.Approval of Minutes
A.Approval of Minutes of the Regular Meeting of Thursday, August 22, 2019
Upon a motion by Commissioner Ferlic, seconded by Vice-President Inks, the
motion carried unanimously, the Commission approved the minutes of the
regular meeting of Thursday, August 22, 2019.
3.Approval of Claims
A.Claims Submitted September 12, 2019
Upon a motion by Commissioner Ferlic, seconded by Vice-President Inks, the
motion carried unanimously, the Commission approved the claims submitted on
Thursday, September 12, 2019.
4.Old Business
5.New Business
A.River West Development Area
1.Waiver and Release of Conditions (333 Western Associates LLC)
Mr. Buckenmeyer presented a Waiver and Release of Conditions (333 Western
Associates LLC). When the building was sold to Cressy, a deed restriction was
recorded requiring a minimum investment to improve the building. This Release
will allow the building to be sold to a new owner, and we are confident that the
new ownership will go above the limits we had put on the building.
Commission approval is requested.
South Bend Redevelopment Commission Regular Meeting – September 12, 2019
President Jones opened the floor for public comment. No public comment was
made. The floor was closed to public comment.
Upon a motion by Commissioner Ferlic, seconded by Vice-President Inks, the
motion carried unanimously, the Commission approved the Waiver and Release
of Conditions (333 Western Associates LLC) submitted on Thursday,
September 12, 2019.
2.Third Amendment to Agreement to Buy and Sell Real Estate (618 W Marion)
Mr. Relos asked to table the Third Amendment to Agreement to Buy and Sell Real
Estate (618 W Marion) as the agreement has not yet been signed by the owner.
Upon a motion by Commissioner Ferlic, seconded by Vice-President Inks, the
motion carried unanimously, the Commission approved to table the Third
Amendment to Agreement to Buy and Sell Real Estate (618 W Marion)
submitted on Thursday, September 12, 2019.
3.Budget Request (Weather Amnesty)
Ms. Amanda Pietsch, Director, Redevelopment Finance presented a Budget
Request (Weather Amnesty). This is a request of $305,000 to fund the 2019 /
2020 weather amnesty program. This will be funded from the 433 Redevelopment
General Fund using Pokagon dollars. It is intended to start the program
November 1, 2019 through March 31, 2020. Contingent on building repairs, the
building may be able to open October 15, 2019. If the weather indicates the need
the program could run through April 30, 2020. This year both 510 South Main
Street (former Salvation Army building) and Center for the Homeless will be
funded. Commission approval is requested.
President Jones opened the floor for public comment. No public comment was
made. The floor was closed to public comment.
Upon a motion by Commissioner Ferlic, seconded by Vice-President Inks, the
motion carried unanimously, the Commission approved the Budget Request
(Weather Amnesty) submitted on Thursday, September 12, 2019
B.Other
1.Budget Request (Pokagon Fund)
Ms. Alkenya Aldridge, Director, Engagement & Economic Empowerment
presented a Budget Request (Pokagon Fund). This budget request is for $50,000
for two initiatives.
The first request in the amount of $30,000 is for St. Mary’s College Women’s
Entrepreneurship Initiative, also known as SPARK. In prior years this program
has been on campus. We are looking to deliver SPARK in a small, targeted area
of the City. The women that go through this process are under resourced. The
program will help these women understand not only business ownership but
property ownership. It is intended to run this pilot program for a minimum of five
South Bend Redevelopment Commission Regular Meeting – September 12, 2019
years, to develop a steady pipeline of small businesses and a robust
entrepreneurial ecosystem.
The second request in the amount of $20,000 is for the Incremental Development
Alliance, Inc. The Alliance aims to train under capacity neighborhood-based
organizations and individuals how to develop small buildings, often owner
occupied or owner adjacent. Commission approval is requested.
President Jones opened the floor for public comment. No public comment was
made. The floor was closed to public comment.
Upon a motion by Commissioner Ferlic, seconded by Vice-President Inks, the
motion carried unanimously, the Commission approved Budget Request
(Pokagon Fund) submitted on Thursday, September 12, 2019.
6.Progress Reports
A.Tax Abatement
B.Common Council
C.Other
7.Next Commission Meeting:
Thursday, September 26, 2019, 4:00 p.m.
8.Adjournment
Thursday, September 12, 2019, 4:33 p.m.
David Relos, Property Development Manager Marcia Jones, President
ITEM: 5A1
1
RESOLUTION NO. 3503
A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION
DECLARING CERTAIN PROPERTIES TO BE BLIGHTED AND
IN NEED OF REDEVELOPMENT
WHEREAS, the South Bend Redevelopment Commission (“Commission”), the
governing body of the South Bend, Indiana, Department of Redevelopment (“Department”),
exists and operates under the provisions of I.C. 36-7-14, as amended from time to time; and
WHEREAS, the Commission previously designated and declared certain areas in the
City of South Bend (the “City”) to be blighted and in need of redevelopment, including the River
West Development Area (“River West”); and
WHEREAS, pursuant to I.C. 36-7-4-19.5, the Commission may acquire property within
the City that it determines is blighted, unsafe, abandoned, foreclosed, or structurally damaged
from a willing seller and with a purchase price of not more than Twenty-Five Thousand Dollars
($25,000), so long as the Commission has the funds to do so; and
WHEREAS, the Department staff has identified certain properties located within River
West that they believe to be blighted, unsafe, and/or abandoned and for the purchase of which
they would like to negotiate, which properties and their descriptions are set forth on Exhibit A
(the “Properties”); and
WHEREAS, the Department staff desires the Commission to declare the Properties to be
blighted, unsafe, and/or abandoned and to allow the Department staff to negotiate with the
owners for the purchase of the Properties by the Commission each at a price less than Twenty-
Five Thousand Dollars ($25,000).
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND
REDEVELOPMENT COMMISSION AS FOLLOWS:
1.The Commission has reviewed Exhibit A and determines and declares that the
Properties as set forth thereon are blighted, unsafe, or abandoned and in need of redevelopment.
2.The Commission hereby authorizes David Relos or Andrew Netter of the City’s
Department of Community Investment to negotiate with the owner of the Properties for the
City’s acquisition thereof at a purchase price of less than Twenty-Five Thousand Dollars
($25,000) each.
3. This Resolution shall be in full force and effect upon its adoption.
Signature Page Follows
ITEM: 5A2
2
ADOPTED at a meeting of the South Bend Redevelopment Commission held on
September 26, 2019, at 227 West Jefferson Boulevard, Room 1308, South Bend, Indiana 46601.
SOUTH BEND REDEVELOPMENT COMMISSION
______________________________
Marcia I. Jones, President
ATTEST:
______________________________
Quentin Phillips, Secretary
EXHIBIT A
Properties to Be Acquired
Tax ID: 018-1040-1735
Address: 1205 W. Colfax Ave., South Bend, IN 46616
Legal Desc. E 51.48' Lot 42a Rockafellers 2nd Addition to the City Of South Bend 1st
Replat 04-05 New Replat Tr 2495 5-2-03
Tax ID: 018-1040-1733
Address: 1215 W. Colfax Ave., South Bend, IN 46616
Legal Desc. W67.96' Lot 42a Rockafellers 2nd Addition to the City Of South Bend 1st
Replat 04-05 New Replat Tr 2495 5-2-03
1
THIRD AMENDMENT TO DEVELOPMENT AGREEMENT
This Third Amendment To Development Agreement (this “Third Amendment”) is
effective as of September 26, 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 Ziker Sample Street, LLC, an Indiana
limited liability company (the “Developer”) (each, a “Party,” and collectively, the “Parties”).
RECITALS
A.The Parties entered into that certain Development Agreement dated November 20,
2017, as amended on May 24, 2018 by a First Amendment to Development Agreement, and
amended further on April 25, 2019 by a Second Amendment to Development Agreement (together,
the “Development Agreement”) concerning the Developer’s undertaking of the Project; and
B.The Commission agreed to expend an amount not to exceed Two Hundred
Thousand Dollars ($200,000) of tax increment finance revenues solely for the replacement of the
Developer Property's roof (the "Roof Replacement"); and
C.In accordance with Section 5.2(c) of the Development Agreement, bids were
received for the Roof Replacement by the City of South Bend Board of Public Works (the
"Board"), as the Commission agent, and the lowest responsive bid from a responsible bidder
exceeded the Dedicated Funds; and
D.On September 24, 2019, the Board awarded the contract to the winning bidder (the
"LPI Contract") subject to an increase in the Dedicated Funds by Thirty-Five Thousand One
Hundred Dollars ($35,100) (the "Funding Amount Increase"); and
E.In consideration of the Commission's willingness to approve the Funding Amount
Increase and thereby permit the Board's award of the LPI Contract, the Developer has agreed to
pay the Funding Amount Increase in the manner set forth in this Third Amendment.
NOW, THEREFORE, in consideration of the mutual promises and obligations stated in the
Development Agreement and this Third 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:
Funding Amount. “Funding Amount” means an amount not to exceed Three Hundred
Thirty-Five Thousand One Hundred Dollars ($335,100) 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, specifically as
set forth on Exhibit C.
2.The Developer shall pay the Funding Amount Increase to the Commission in
certified or immediately available funds no later than five (5) days after the date hereof, upon the
confirmed receipt of which, the Commission will authorize the Board to enter into the LPI Contract.
ITEM: 5A3
2
The Funding Amount Increase will be applied at the appropriate time to the LPI Contract in
accordance with the Board's ordinary payment practices and applicable law. Further, the Developer
hereby expressly reaffirms its obligation under Section 5.2(e) of the Development Agreement to
pay all costs of completing the LPI, including any necessary change orders to the LPI Contract, in
excess of the Funding Amount, as such amount is hereby amended. The Developer hereby
acknowledges that the Developer or the Developer's designee may inspect the LPI upon completion
and hereby expressly reaffirms its obligations under Section 5.2(e) of the Development Agreement
to pay all costs of inspecting the LPI.
3.Paragraph C of Exhibit C of the Development Agreement shall be deleted in its
entirety and replaced with the following:
C. Two Hundred Thirty-Five Thousand One Hundred Dollars ($235,100) of the
Funding Amount (“Dedicated Funds”) shall be dedicated to the replacement of the
Developer Property’s roof. The Dedicated Funds shall not be used to pay for any
other Local Public Improvements related to the Project.
4.The Parties hereby expressly reaffirm their obligations under the Development
Agreement, and, unless expressly modified by this Third Amendment, the terms and provisions of
the Development Agreement remain in full force and effect.
5.Capitalized terms used in this Third Amendment will have the meanings set forth
in the Development Agreement unless otherwise stated herein.
6.This Third Amendment will be governed and construed in accordance with the laws
of the State of Indiana.
6.This Third 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.
IN WITNESS WHEREOF, the Parties hereby execute this Third Amendment to be
effective as of the Effective Date stated above.
SOUTH BEND REDEVELOPMENT ZIKER SAMPLE STREET, LLC
COMMISSION
______________________________ ______________________________
Marcia I. Jones, President David Ziker, Sole Member
Dated:
ATTEST:
______________________________
Quentin Phillips, Secretary
1
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “First
Amendment”) is made on September 26, 2019, by and between the South Bend Redevelopment
Commission, the governing body of the City of South Bend Department of Redevelopment (the
“Commission”), and Bald Mountain, LLC, an Indiana limited liability company (the “Developer”)
(each a “Party,” and collectively the “Parties”).
RECITALS
A.The Commission and the Developer entered into a Development Agreement dated
effective January 24, 2019 (the “Development Agreement”), for the development of a Project in
the River West Development Area.
B.The Commission agreed to expend an amount not to exceed Three Hundred Fifty
Thousand Dollars ($350,000) of tax increment finance revenues to complete the Local Public
Improvements (“LPI”) in support of the Project in accordance with the Project Plan.
C.In accordance with Section 5.2(d) of the Development Agreement, bids were
received and a contract awarded for the LPI by the City of South Bend Board of Public Works, as
the Commission’s agent.
D.During the course of performing the contract for the LPI, the Commission's LPI
contractor uncovered existing foundations, which required the Developer's architect to adjust the
overall building plans.
E.The City has agreed to pay a portion of the costs of the adjustment to the overall
building plans, thereby requiring an increase in the Funding Amount of Ten Thousand Dollars
($10,000) (the “Funding Amount Increase”).
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 shall be deleted in its entirety and replaced with the following:
1.3 Funding Amount. "Funding Amount" means an amount not to exceed Three
Hundred Sixty Thousand Dollars ($360,000.00) 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.
2.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.
3.Capitalized terms used in this First Amendment will have the meanings set forth in
the Development Agreement unless otherwise stated herein.
ITEM: 5A4
2
4.The recitals set forth above are hereby incorporated into the operative provisions of
this First Amendment.
5.This First Amendment will be governed and construed in accordance with the laws
of the State of Indiana.
6.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.
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:____________________________________
Quentin Phillips, Secretary
DEVELOPER:
BALD MOUNTAIN, LLC
By: _____________________________________
E. Lewis Hansell, Manager
REAL ESTATE PURCHASE AGREEMENT
This Real Estate Purchase Agreement (this “Agreement”) is made on September 26, 2019
(the “Contract 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 Masterbilt Incorporated, an Indiana corporation with its registered
office at 325 S Walnut Street, South Bend, Indiana 46601 (“Buyer”) (each a “Party” and together
the “Parties”).
RECITALS
A.Seller exists and operates pursuant to the Redevelopment of Cities and Towns Act
of 1953, as amended, being Ind. Code 36-7-14 (the “Act”).
B.In furtherance of its purposes under the Act, Seller owns certain real property
located in South Bend, Indiana (the “City”), and more particularly described in attached Exhibit
A (the “Property”).
C.Pursuant to the Act, Seller adopted its Resolution No. 3322 on January 14, 2016,
whereby Seller established an offering price of Nineteen Thousand Two Hundred Fifty Dollars
($19,250.00) per acre for the Property.
D.Pursuant to the Act, on January 14, 2016, Seller authorized the publication, on
January 22, 2016 and January 29, 2016, respectively, of a notice of its intent to sell the Property
and its desire to receive bids for said Property on or before 9:00 a.m. on February 11, 2016.
E.Seller received no bids for the Property on February 11, 2016, and, therefore,
having satisfied the conditions stated in Section 22 of the Act, Seller now desires to sell the
Property to Buyer on the terms stated in this Agreement.
THEREFORE, in consideration of the mutual covenants and promises in this Agreement
and other good and valuable consideration, the receipt of which is hereby acknowledged, Buyer
and Seller agree as follows:
1.OFFER AND ACCEPTANCE
A copy of this Agreement, signed by Buyer, constitutes Buyer’s offer to purchase the Property on
the terms stated in this Agreement and shall be delivered to Seller, in care of the following
representative (“Seller’s Representative”):
Daniel Buckenmeyer, Director of Economic Resources and Business Development
Department of Community Investment
City of South Bend
1400 S. County-City Building
227 W. Jefferson Blvd.
South Bend, Indiana 46601
ITEM: 5A5
This offer shall expire thirty (30) days after delivery unless accepted by Seller. To accept Buyer’s
offer, Seller shall return a copy of this Agreement, counter-signed by Seller in accordance with
applicable laws, to the following (“Buyer’s Representative”):
Robert Michalak, President
Masterbilt Incorporated
325 South Walnut Street
South Bend, Indiana 46601
2.PURCHASE PRICE AND EARNEST MONEY DEPOSIT
A.Purchase Price. The purchase price for the Property shall be Thirty Thousand
Dollars ($30,000.00) (the “Purchase Price”), payable by Buyer to Seller in cash at the closing
described in Section 10 below (the “Closing,” the date of which is the “Closing Date”).
B.Earnest Money Deposit. Within five (5) business days after the Contract Date,
Buyer will deliver to Seller the sum of Three Thousand Dollars ($3,000.00), which Seller will hold
as an earnest money deposit (the “Earnest Money Deposit”). Seller will be responsible for
disposing of the Earnest Money Deposit in accordance with the terms of this Agreement. The
Earnest Money Deposit shall be credited against the Purchase Price at the Closing or, if no Closing
occurs, refunded or forfeited as provided below.
C.Termination During Due Diligence Period. If Buyer exercises its right to terminate
this Agreement by written notice to Seller in accordance with Section 3 below, the Earnest Money
Deposit shall be refunded to Buyer. If Buyer fails to exercise its right to terminate this Agreement
by written notice to Seller within the Due Diligence Period, then the Earnest Money Deposit shall
become non-refundable.
D.Liquidated Damages. If Seller complies with its obligations hereunder and Buyer,
not having terminated this Agreement during the Due Diligence Period in accordance with Section
3 below, fails to purchase the Property on or before the Closing Date, the Earnest Money Deposit
shall be forfeited by Buyer and retained by Seller as liquidated damages in lieu of any other
damages.
3.BUYER’S DUE DILIGENCE
A.Investigation. Buyer and Seller have made and entered into this Agreement based
on their mutual understanding that Buyer intends to use the Property for a consolidated
manufacturing facility and headquarters (the “Buyer’s Use”). Seller acknowledges that Buyer’s
determination whether Buyer’s Use is feasible requires investigation into various matters (Buyer’s
“Due Diligence”). Therefore, Buyer’s obligation to complete the purchase of the Property is
conditioned upon the satisfactory completion, in Buyer’s discretion, of Buyer’s Due Diligence,
including, without limitation, Buyer’s examination, at Buyer’s sole expense, of zoning and land
use matters, environmental matters, real property title matters, and the like, as applicable.
B.Due Diligence Period. Buyer shall have a period of sixty (60) days following the
Contract Date to complete its examination of the Property in accordance with this Section 3 (the
“Due Diligence Period”).
C.Authorizations During Due Diligence Period. During the Due Diligence Period,
Seller authorizes Buyer, upon Buyer providing Seller with evidence that Buyer has general liability
insurance reasonably acceptable to Seller, in the amount of at least One Million Dollars
($1,000,000.00), naming Seller as an additional insured and covering the activities, acts, and
omissions of Buyer and its representatives at the Property, to
(i)enter upon the Property or to cause agents to enter upon the Property for
purposes of examination; provided, that Buyer may not take any action upon the Property which
reduces the value thereof and Buyer may not conduct any invasive testing at the Property without
Seller’s express prior written consent; further provided, that if the transaction contemplated herein
is not consummated, Buyer shall promptly restore the Property to its condition prior to entry, and
agrees to defend, indemnify and hold Seller harmless, before and after the Closing Date whether
or not a closing occurs and regardless of any cancellations or termination of this Agreement, from
any liability to any third party, loss or expense incurred by Seller, including without limitation,
reasonable attorney fees and costs arising from acts or omissions of Buyer or Buyer’s agents or
representatives; and
(ii)file any application with any federal, state, county, municipal or regional
agency relating to the Property for the purpose of obtaining any approval necessary for Buyer’s
anticipated use of the Property. If Seller’s written consent to or signature upon any such
application is required by any such agency for consideration or acceptance of any such application,
Buyer may request from Seller such consent or signature, which Seller shall not unreasonably
withhold. Notwithstanding the foregoing, any zoning commitments or other commitments that
would further restrict the future use or development of the Property, beyond the restrictions in
place as a result of the current zoning of the Property, shall be subject to Seller’s prior review and
written approval.
D.Environmental Site Assessment. Buyer may, at Buyer’s sole expense, obtain a
Phase I environmental site assessment of the Property pursuant to and limited by the authorizations
stated in this Section 3.
E.Termination of Agreement. If at any time within the Due Diligence Period Buyer
determines, in its sole discretion, not to proceed with the purchase of the Property, Buyer may
terminate this Agreement by written notice to Seller’s Representative, and Buyer shall be entitled
to a full refund of the Earnest Money Deposit.
4. SELLER’S DOCUMENTS; ENVIRONMENTAL SITE ASSESSMENT
Upon Buyer’s request, Seller will provide Buyer a copy of all known environmental inspection,
engineering, title, and survey reports and documents in Seller’s possession relating to the Property.
In the event the Closing does not occur, Buyer will immediately return all such reports and
documents to Seller’s Representative with or without a written request by Seller.
5. PRESERVATION OF TITLE
After the Contract Date, Seller shall not take any action or allow any action to be taken by others
to cause the Property to become subject to any interests, liens, restrictions, easements, covenants,
reservations, or other matters affecting Seller’s title (such matters are referred to as
“Encumbrances”). Seller acknowledges that Buyer intends to obtain, at Buyer’s sole expense, and
to rely upon a commitment for title insurance on the Property (the “Title Commitment”) and a
survey of the Property (the “Survey”) identifying all Encumbrances as of the Contract Date. The
Property shall be conveyed to Buyer free of any Encumbrances other than Permitted
Encumbrances (as defined in Section 7 below).
6. TITLE COMMITMENT AND POLICY REQUIREMENTS
Buyer shall obtain the Title Commitment for an owner’s policy of title insurance issued by a title
company selected by Buyer and reasonably acceptable to Seller (the “Title Company”) within
twenty (20) days after the Contract Date. The Title Commitment shall (i) agree to insure good,
marketable, and indefeasible fee simple title to the Property (including public road access) in the
name of the Buyer for the full amount of the Purchase Price upon delivery and recordation of a
special warranty deed (the “Deed”) from the Seller to the Buyer, and (ii) provide for issuance of a
final ALTA owner’s title insurance policy, with any endorsements requested by Buyer, subject to
the Permitted Encumbrances. Regardless of whether this transaction closes, Buyer shall be
responsible for all of the Title Company’s title search charges and all costs of the Title
Commitment and owner’s policy.
7. REVIEW OF TITLE COMMITMENT AND SURVEY
Within twenty (20) days after Buyer’s receipt of the Title Commitment, Buyer shall give Seller
written notice of any objections to the Title Commitment. Within twenty (20) days after Buyer’s
receipt of the Survey, Buyer shall give Seller written notice of any objections to the Survey. Any
exceptions identified in the Title Commitment or Survey to which written notice of objection is
not given within such period shall be a “Permitted Encumbrance.” If the Seller is unable or
unwilling to correct the Buyer’s title and survey objections within the Due Diligence Period, Buyer
may terminate this Agreement by written notice to Seller prior to expiration of the Due Diligence
Period, in which case the Earnest Money Deposit shall be refunded to Buyer. If Buyer fails to so
terminate this Agreement, then such objections shall constitute “Permitted Encumbrances” as of
the expiration of the Due Diligence Period, and Buyer shall acquire the Property without any effect
being given to such title and survey objections.
8. DISPUTE RESOLUTION
A. Forum. 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.
B.Waiver of Jury Trial. Both Parties hereby waive any right to trial by jury with
respect to any action or proceeding relating to this Agreement.
9.NOTICES
All notices required or allowed by this Agreement, before or after Closing, shall be delivered in
person or by certified mail, return receipt requested, postage prepaid, addressed to Seller in care
of Seller’s Representative (with a copy to South Bend Legal Department, 1200 S. County-City
Building, 227 W. Jefferson Blvd., South Bend, IN 46601, Attn: Corporation Counsel), or to Buyer
in care of Buyer’s Representative at their respective addresses stated in Section 1 above. Either
Party may, by written notice, modify its address or representative for future notices.
10.CLOSING
A.Timing of Closing. 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 thirty (30) days after the end of the Due Diligence Period.
B.Closing Procedure.
(i)At Closing, Buyer shall deliver the Purchase Price to Seller, conditioned on
Seller’s delivery of the Deed, in the form attached hereto as Exhibit B, conveying the Property to
Buyer, free and clear of all liens, encumbrances, title defects, and exceptions other than Permitted
Encumbrances, and the Title Company’s delivery of the marked-up copy of the Title Commitment
(or pro forma policy) to Buyer in accordance with Section 6 above.
(ii)Possession of the Property shall be delivered to the Buyer at Closing, in the
same condition as it existed on the Contract Date, ordinary wear and tear and casualty excepted.
C.Conditions Precedent to Closing. Unless waived by the Parties before or at Closing,
Seller shall have no obligation to complete the transaction contemplated in this Agreement unless,
before the Closing Date, Seller has received and the City’s Planning Department has approved, in
its sole discretion, Buyer’s design, plans, and specifications for lot improvements and landscaping
on the Property consistent with City standards (Buyer’s “Lot Improvements”), which Lot
Improvements will cost no less than One Million Two Hundred Thousand Dollars ($1,200,000.00).
Notwithstanding any provision of this Agreement to the contrary, in the event this transaction is
not completed due to the failure of one or more of the foregoing conditions, Seller shall have no
liability for any of Buyer’s losses, damages, costs, or expenses of any kind, including attorney
fees, incurred in connection with its proposed acquisition of the Property under this Agreement,
except for the return of the Earnest Money Deposit, if appropriate in accordance with the terms of
this Agreement.
D.Closing Costs. Buyer shall pay all of the Title Company’s closing and/or document
preparation fees and all recordation costs associated with the transaction contemplated in this
Agreement.
11.BUYER’S POST-CLOSING DEVELOPMENT OBLIGATIONS
A.Property Improvements; Proof of Investment. Within Twenty-Four (24) months
after the Closing Date, Buyer will expend an amount not less than One Million Two Hundred
Thousand Dollars ($1,200,000.00) to redevelop the Property to allow Buyer's Use thereof
(“Property Improvements”). Promptly upon completing the Property Improvements, Buyer will
submit to Seller satisfactory records, as determined in Seller’s sole discretion, proving the above
required expenditures and will permit Seller (or its designee) to inspect the Property to ensure that
Buyer’s Property Improvements were completed satisfactorily.
B.Certificate of Completion. Promptly after Buyer completes the Property
Improvements and satisfactorily proves the same in accordance with the terms of Section 11.A.
above, Seller will issue to Buyer a certificate acknowledging such completion and releasing
Seller’s reversionary interest in the Property (the “Certificate of Completion”). The Parties agree
to record the Certificate of Completion immediately upon issuance, and Buyer will pay the costs
of recordation.
C.Remedies Upon Default. In the event Buyer fails to complete the Property
Improvements, or satisfactorily to prove such performance, in accordance with Section 11.A
above, then, in addition to pursuing any other remedies available at law or in equity, Seller shall
have the right to:
(i) re-enter and take possession of the Property and to terminate and revest in
Seller the estate conveyed to Buyer at Closing and all of Buyer’s rights and
interests in the Property without offset or compensation for the value of any
improvements made by Buyer; or, alternatively,
(ii)recover from Buyer a cash payment in an amount equal to the Appraised
Value of the Property, due to Seller immediately upon demand by Buyer.
The Parties agree that Seller’s conveyance of the Property to Buyer at Closing will be made on the
condition subsequent set forth in the foregoing sentence. Further, the Parties agree that Seller’s
reversionary interest in the Property will be subordinate to the first-priority mortgage encumbering
the Property, if any, arising out of Buyer’s contemporaneous financing of the redevelopment of
the Property, provided that Buyer notifies Seller in advance of the execution or recording of such
first-priority mortgage.
12.ACCEPTANCE OF PROPERTY AS-IS
Buyer agrees to purchase the Property “as-is, where-is” and without any representations or
warranties by Seller as to the condition of the Property or its fitness for any particular use or
purpose. Seller offers no such representation or warranty as to condition or fitness, and nothing in
this Agreement will be construed to constitute such a representation or warranty as to condition or
fitness.
13. TAXES
Buyer, and Buyer’s successors and assigns, shall be liable for any and all real property taxes
assessed and levied against the Property with respect to the year in which the Closing takes place
and for all subsequent years. Seller shall have no liability for any real property taxes associated
with the Property, and nothing in this Agreement shall be construed to require the proration or
other apportionment of real property taxes resulting in Seller’s liability therefor.
14. REMEDIES
Upon any default in or breach of this Agreement by either Party, the defaulting Party will proceed
immediately to cure or remedy such default within thirty (30) days after receipt of written notice
of such default or breach from the non-defaulting Party, or, if the nature of the default or breach is
such that it cannot be cured within thirty (30) days, the defaulting Party will diligent pursue and
prosecute to completion an appropriate cure within a reasonable time. In the event of a default or
breach that remains uncured for longer than the period stated in the foregoing sentence, the non-
defaulting Party may terminate this Agreement, commence legal proceedings, including an action
for specific performance, or pursue any other remedy available at law or in equity. All the Parties’
respective rights and remedies concerning this Agreement and the Property are cumulative.
15. COMMISSIONS
The Parties mutually acknowledge and warrant to one another that neither Buyer nor Seller is
represented by any broker in connection with the transaction contemplated in this Agreement.
Buyer and Seller agree to indemnify and hold harmless one another from any claim for
commissions in connection with the transaction contemplated in this Agreement.
16. INTERPRETATION; APPLICABLE LAW
Both Parties having participated fully and equally in the negotiation and preparation of this
Agreement, this Agreement shall not be more strictly construed, nor shall any ambiguities in this
Agreement be presumptively resolved, against either Party. This Agreement shall be interpreted
and enforced according to the laws of the State of Indiana.
17. 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 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.
18.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.
19.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.
20.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.
21 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between Seller and Buyer and supersedes all prior
discussions, understandings, or agreements, whether written or oral, between Seller and Buyer
concerning the transaction contemplated in this Agreement.
22.ASSIGNMENT
Buyer and Seller agree that this Agreement or any of Buyer’s rights hereunder may not be assigned
by Buyer, in whole or in part, without the prior written consent of Seller. In the event Buyer wishes
to obtain Seller’s consent regarding a proposed assignment of this Agreement, Buyer shall provide
any and all information reasonably demanded by Seller in connection with the proposed
assignment and/or the proposed assignee.
23.BINDING EFFECT; COUNTERPARTS; SIGNATURES
All the terms and conditions of this Agreement will be effective and binding upon the Parties and
their successors and assigns at the time the Agreement is fully signed and delivered by Buyer and
Seller. This Agreement may be separately executed in counterparts by Buyer and Seller, and the
same, when taken together, will be regarded as one original Agreement. Electronically transmitted
signatures will be regarded as original signatures.
24.AUTHORITY TO EXECUTE; EXISTENCE
The undersigned persons executing and delivering this Agreement on behalf of the respective
Parties represent and certify that they are the duly authorized representatives of each and have been
fully empowered to execute and deliver this Agreement and that all necessary corporate action has
been taken and done. Further, the undersigned representative of Buyer represents and warrants
that Buyer is duly organized, validly existing, and in good standing under the laws of the State of
Indiana.
25.TIME
Time is of the essence of this Agreement.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties hereby execute this Real Estate Purchase
Agreement to be effective as of the Contract Date stated above.
BUYER:
Masterbilt Incorporated,
an Indiana corporation
__________________________
Robert Michalak, President
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:
__________________________
Quentin Phillips, Secretary
EXHIBIT A
Description of Property
Lot One of the Kemble Street and Indiana Avenue Minor Subdivision, being a part of the
Northeast Quarter of Section 14, Township 37 North, Range 2 East, City of South Bend, Portage
Township, St. Joseph County, Indiana, recorded as Document No. 2019-11131 on May 20, 2019
in the Office of the Recorder of St. Joseph County, Indiana, subject to all legal rights-of-way,
easements, and restrictions of record.
Parcel Key No. 018-8024-0972
EXHIBIT B
Form of Special Warranty Deed
Page 1 of 2
AUDITOR’S RECORD
TRANSFER NO.__________
TAXING UNIT___________
DATE __________________
KEY NO. 018-8024-0972
SPECIAL WARRANTY DEED
THIS INDENTURE WITNESSETH, that the City of South Bend, Department of Redevelopment, by and
through its governing body, the South Bend Redevelopment Commission, 1400 S. County-City Building,
227 W. Jefferson Boulevard, South Bend, Indiana (the “Grantor”)
CONVEYS AND SPECIALLY WARRANTS to Masterbilt Incorporated, an Indiana corporation with
its registered office at 325 South Walnut Street, South Bend, Indiana 46601 (the “Grantee”),
for and in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the following real estate located in St. Joseph County,
Indiana (the “Property”):
Lot One of the Kemble Street and Indiana Avenue Minor Subdivision,
being a part of the Northeast Quarter of Section 14, Township 37 North,
Range 2 East, City of South Bend, Portage Township, St. Joseph County,
Indiana, recorded as Document No. 2019-11131 on May 20, 2019 in the
Office of the Recorder of St. Joseph County, Indiana, subject to all legal
rights-of-way, easements, and restrictions of record.
Parcel Key No. 018-8024-0972
The Grantor warrants title to the Property only insofar as it might be affected by any act of the
Grantor during its ownership thereof and not otherwise.
The Grantor hereby conveys the Property to the Grantee free and clear of all leases or licenses;
subject to real property taxes and assessments; subject to all easements, covenants, conditions, restrictions,
and other matters of record; subject to rights of way for roads and such matters as would be disclosed by
an accurate survey and inspection of the Property; subject to all applicable building codes and zoning
ordinances; and subject to all provisions and objectives contained in the Commission’s development area
plan, and any design review guidelines associated therewith.
The Grantor conveys the Property to the Grantee subject to the limitation that the Grantee, and its
successors and assigns, shall not discriminate against any person on the basis of race, creed, color, sex, age,
or national origin in the sale, lease, rental, use, occupancy, or enjoyment of the Property or any
improvements constructed on the Property.
Page 2 of 2
Pursuant to Section 11 of the Purchase Agreement, the Grantor conveys the Property to the Grantee
by this deed subject to certain conditions subsequent. In the event the Grantee fails to perform the Property
Improvements, or satisfactorily to prove such performance, in accordance with Section 11 of the Purchase
Agreement, then the Grantor shall have the right to re-enter and take possession of the Property and to
terminate and revest in the Grantor the estate conveyed to the Grantee by this deed and all of the Grantee’s
rights and interests in the Property without offset or compensation for the value of any improvements to the
Property made by the Grantee. The recordation of a Certificate of Completion in accordance with Section
11 of the Purchase Agreement will forever release and discharge the Grantor’s reversionary interest stated
in this paragraph.
Each of the undersigned persons executing this deed on behalf of the Grantor represents and
certifies that s/he is a duly authorized representative of the Grantor and has been fully empowered, by
proper action of the governing body of the Grantor, to execute and deliver this deed, that the Grantor has
full corporate capacity to convey the real estate described herein, and that all necessary action for the
making of such conveyance has been taken and done.
GRANTOR:
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
______________________________
Marcia I. Jones, President
ATTEST:
______________________________
Quentin Phillips, Secretary
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public, in and for said County and State, personally appeared
Marcia I. Jones and Quentin Phillips, known to me to be the President and Secretary, respectively, of the
South Bend Redevelopment Commission and acknowledged the execution of the foregoing Special
Warranty Deed.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the _____ day of ______________, 2019.
____________________________________
Mary C. Brazinsky, Notary Public
Residing in St. Joseph County, Indiana
Commission Expires: December 12, 2024
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.
This instrument was prepared by Sandra L. Kennedy, Assistant City Attorney, City of South Bend Department of Law, 1200S County-City
Building, 227 W Jefferson Blvd., South Bend, Indiana 46601.
Redevelopment Commission Agenda Item
DATE: September 24, 2019
FROM: Kara Boyles, City Engineer
SUBJECT: Budget Increase Request – Olive GAC WTP
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Budget increase of $500K for construction of the Olive WTP Improvements for a
total of $1,536,000.
Specifics: The Board of Public Works recently opened bids for the Olive WTP Improvements.
Bowen Engineering Corporation submitted the only bid for $1,796,470, which is
approximately $500K over the engineer’s estimate. Engineering has worked with
the bidder to value engineer numerous elements of work, reducing the contract
cost by ~$500K, bringing the new contract amount closer to $1.2M.
Please consider this budget request for an additional $500K in order to award this
project to Bowen Engineering Corporation. This project is a critical project for
providing clean drinking water to the City’s central pressure zone. It is also
beneficial to keep this project moving forward in order to schedule shut down of
the plant for construction within lower demand periods of water usage over the
winter months.
History: This project involves the rehabilitation of Olive GAC plant. The project
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.
_________________________Pres/V-Pres
ATTEST: __________________Secretary
Date: ____________________
APPROVED Not Approved
SOUTH BEND REDEVELOPMENT COMMISSION
ITEM: 5A6
Page | 2
INTERNAL USE ONLY: Project Code: ___________________18J009____________________________;
Total Amount new/change (inc/dec) in budget: __$500K___________; Break down:
Costs: Engineering Amt: ______$310K_____________; Other Prof Serv Amt_________________;
Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________;
Building Imp Amt___$1,226,000______; Sewers Amt________; Other (specify) Amt: ________________
___________________________________________. Going to BPW for Contracting? Y/N
Is this item ready to encumber now? _yes___ Existing PO#__________ Inc/Dec $_____________
Redevelopment Commission Agenda Item
DATE: 9/20/2019
FROM: Zach Hurst, PE
SUBJECT: Budget Request
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: This request is for $60,000 to augment and finalize a report analyzing the East
Race sewer system serving the areas in between the East Race and the St. Joseph River. The report was
started in 2018 knowing that the existing sewage lift station at the southeast corner of the Colfax bridge
over the River (photos attached) would need to be upgraded in advance of pending developments in the
area (specifically the Commerce Center and the 2nd phase of the Cascades project). This revision will also
explore aesthetic improvements at the lift station to better accommodate a future pedestrian crossing
at the location.
Since the completion of the draft report, the City has obtained more precise usages from both
development projects, requiring re-analysis and update of the original report. Upon completion of the
report, the same consultant will produce Plans and Specifications to be bid out publicly in 2020 for the
rehabilitation of the lift station. Of this budget request, approximately $40,000 will be utilized preparing
these construction documents.
Specifics: Aerial and elevation photos of the existing lift station are attached. Updating of the report
would begin immediately and preparation of Plans and Specifications would take place over the coming
winter. IDEM permits for construction would be concurrently procured to allow for construction during
the summer and fall of 2020.
INTERNAL USE ONLY: Project Code: _______________________________________________;
Total Amount new/change (inc/dec) in budget: _______________; Break down:
Costs: Engineering Amt: ______________________; Other Prof Serv Amt_________________;
Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________;
Building Imp Amt_________; Sewers Amt_________; Other (specify) Amt: ________________
___________________________________________. Going to BPW for Contracting? Y/N
Is this item ready to encumber now? ____ Existing PO#__________ Inc/Dec $_____________
ITEM: 5B1
ITEM: 5C1
LEASE AGREEMENT
between
SOUTH BEND REDEVELOPMENT AUTHORITY
LESSOR
and
SOUTH BEND
REDEVELOPMENT COMMISSION
LESSEE
Dated as of October 1, 2019
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and dated as of this 1st day of October, 2019, by
and between the SOUTH BEND REDEVELOPMENT AUTHORITY (the “Lessor”), a separate
body corporate and politic organized and existing under the provisions of I.C. 36-7-14.5 as an
instrumentality of the City of South Bend, Indiana (the “City”), and the CITY OF SOUTH BEND
REDEVELOPMENT COMMISSION (the “Lessee”), the governing body of the City of South
Bend, Department of Redevelopment, acting for and on behalf of the City.
WITNESSETH:
WHEREAS, the City has created the Lessor under and in pursuance of the provisions of
I.C. 36-7-14, I.C. 36-7-14.5 and I.C. 36-7-25 (collectively, the “Act”), for the purpose of financing,
constructing, acquiring and leasing to the Lessee certain local public improvements and
redevelopment and economic development projects; and
WHEREAS, the City has created the Lessee to undertake redevelopment and economic
development in the City in accordance with the Act; and
WHEREAS, the Lessee is the governing body of the South Bend Department of
Redevelopment and the Redevelopment District of the City (the “District”) which District is
coterminous with the boundaries of the City; and
WHEREAS, in accordance with prior resolutions adopted by the Lessee, the Lessee has
designated a certain area of the City known as the “River West Development Area” (the “Area”)
as an economic development area under the Act and approved an economic development plan for
the Area; and
WHEREAS, the City has determined to pay a portion (such portion being to referred
herein as the “City Payment”) of the amount that St. Joseph County is obligated to pay as a “cash
participant” as such term is defined by I.C. 36-7.5-4.5-16 in the Northern Commuter
Transportation District’s Main Line Double Tracking Project (the “Double Tracking Project”); and
WHEREAS, the Double Tracking Project will foster economic development and
redevelopment and improved employment opportunities throughout the District, including the
Area; and
WHEREAS, the City, the Lessor, and the Lessee seek to provide a means to finance the
City Payment that the City desires to make for the Double Tracking Project; and
WHEREAS, the Act authorizes the Lessor to issue bonds for the purpose of obtaining
money to pay the cost of acquiring property or constructing, improving, reconstructing or
renovating local public improvements; and
WHEREAS, the cost of acquiring an interest in the property described on Exhibit A hereto
by the Authority (the “Leased Premises”) will permit the Commission to make the City Payment
for the Double Tracking Project; and
2
WHEREAS, the costs of the acquisition of the Leased Premises will be paid from proceeds
of bonds to be issued by the Lessor in one (1) or more series; and
WHEREAS, the annual rentals to be paid under this Lease by the Lessee will be pledged
by the Lessor to pay debt service on and other necessary incidental expenses of the Authority
relating to the Bonds to be issued by the Lessor to finance the acquisition of the Leased Premises
and provide for the cash payment for the Double Tracking Project; and
WHEREAS, the Lessor has acquired or will acquire an interest in the Leased Premises
described on Exhibit A hereto and such interest shall be for a term no less than the term of this
Lease; and
WHEREAS, the Lessee has determined, after a public hearing held pursuant to the Act
after notice given pursuant to I.C. § 5-3-1, that the lease rentals provided for in this Lease are fair
and reasonable, that the execution of this Lease is necessary and that the service provided by the
Double Tracking Project will serve the public purpose of the City and is in the best interests of its
residents, and the Common Council of the City (the “Common Council”) has, by resolution,
approved this Lease in accordance with the provisions of Section 25.2 of the Act, and the
Resolution has been entered in the official records of the Common Council; and
WHEREAS, the Lessor has determined that the lease rentals provided for in this Lease are
fair and reasonable, that the execution of this Lease is necessary, that the service provided by the
Double Tracking Project will serve the public purpose of the City and is in the best interests of its
residents, and the Lessor has duly authorized the execution of this Lease by Resolution, and the
Resolution has been entered in the official records of the Lessor.
THIS AGREEMENT WITNESSETH THAT:
1. Premises, Term and Warranty. The Lessor does hereby lease, demise and let to
Lessee all of the Lessor’s right, title and interests in and to the Leased Premises.
TO HAVE AND TO HOLD the Leased Premises with all rights, privileges, easements and
appurtenances thereunto belonging, unto the Lessee, beginning on the date the Lessor acquires an
interest in any of the Leased Premises and ending on the day prior to a date not later than eleven
(11) years after such date of acquisition by the Lessor. Notwithstanding the foregoing, the term
of this Lease will terminate at the earlier of (a) the exercise by the Lessee of the option to purchase
all of the Leased Premises pursuant to Section 11 hereof and the payment of the option price, or
(b) the payment or defeasance of all obligations issued by the Lessor and secured by this Lease or
any portion thereof; provided that no bonds or other obligations of the Lessor issued to finance the
Leased Premises remain outstanding at the time of such payment or defeasance. The Lessor hereby
represents that it is possessed of, or will acquire, the Leased Premises and the Lessor warrants and
will defend the Leased Premises against all claims whatsoever not suffered or caused by the acts
or omissions of the Lessee or its assigns.
Notwithstanding the foregoing, the Leased Premises may be amended to add additional
property to the Leased Premises or remove any portion of the Leased Premises, including, but not
limited to the Leased Premises, provided however, following such amendment, the rental payable
under this Lease shall be based on the value of the portion of the Leased Premises which is
3
available for use, and the rental payments due under this Lease shall be in amounts sufficient to
pay when due all principal of and interest on all outstanding Bonds.
2. Lease Rental. (a) Fixed Rental Payments. The Lessee agrees to pay rental for
the Leased Premises at an annual rate per year during the term of the Lease not to exceed One
Million Five Hundred Thousand Dollars ($1,500,000), payable in semi-annual installments. Each
such semi-annual installment, payable as hereinafter described, shall be based on the value of the
Leased Premises, together with that portion of the Project which is complete and ready for use by
the Lessee at the time such semi-annual installment is made. Such rental shall be payable in
advance in semi-annual installments on January 15 and July 15 of each year, with the first rental
installment due no earlier than July 15, 2020. The last semi-annual rental payment due before the
expiration of this Lease shall be adjusted to provide for rental at the yearly rate so specified from
the date such installment is due to the date of the expiration of this Lease.
After the sale of the Bonds, the annual rental shall be reduced to an amount sufficient to
pay principal and interest due in each twelve (12) month period commencing each year on August
1, rounded up to the next One Thousand Dollars ($1,000), together with incidental costs in each
year in an amount to be determined at the time the Bonds are sold for the purpose of paying annual
trustee fees and related costs, payable in advance in semi-annual installments. In addition, each
such reduced semi-annual installment shall be based on the value of the Leased Premises at the
time such semi-annual installment is made. Such amount of adjusted rental shall be endorsed on
this Lease at the end hereof in the form of Exhibit B attached hereto by the parties hereto as soon
as the same can be done after the sale of the Bonds, and such endorsement shall be recorded as an
addendum to this Lease.
(b) Additional Rental Payments. (i) The Lessee shall pay as further rental in addition
to the rentals paid under Section 2(a) for the Leased Premises (“Additional Rentals”) the amount
of all taxes and assessments levied against or on account of the Leased Premises or the receipt of
lease rental payments and the amount required to reimburse the Lessor for any insurance payments
made by it under Section 6. The Lessee shall pay as additional rental all administrative expenses
of the Lessor, including ongoing trustee fees, relating to the Bonds. Any and all such payments
shall be made and satisfactory evidence of such payments in the form of receipts shall be furnished
to the Lessor by the Lessee, at least three (3) days before the last day upon which such payments
must be paid to avoid delinquency. If the Lessee shall in good faith desire to contest the validity
of any such tax or assessment, the Lessee shall so notify the Lessor and shall furnish bond with
surety to the approval of the Lessor conditioned for the payment of the charges so desired to be
contested and all damages or loss resulting to the Lessor from the nonpayment thereof when due,
the Lessee shall not be obligated to pay the contested amounts until such contests shall have been
determined. The Lessee shall also pay as Additional Rentals the amount calculated by or for the
Lessor as the amount required to be rebated, or paid as a penalty, to the United States of America
under Section 148(f) of the Internal Revenue Code of 1986, as amended and in effect on the date
of issue of the Bonds (“Code”), after taking into account other available moneys, to prevent the
Bonds from becoming arbitrage bonds under Section 148 of the Code.
(ii) The Lessee may, by Resolution, pay Additional Rentals to enable the Lessor to
redeem or purchase Bonds prior to maturity. Rental payments due under this Section 2 shall be
reduced to the extent such payments are allocable to the Bonds redeemed or purchased by the
Lessor with such Additional Rentals. The Lessee shall be considered as having an ownership
4
interest in the Leased Premises valued at an amount equal to the amount of the Additional Rentals
paid pursuant to this subsection (b)(ii).
(c) Source of Payment of Rentals. The annual rentals set forth in Section 2(a) hereof
and the Additional Rentals shall be payable solely from the River West Development Area
Principal and Interest Account of the Redevelopment District Bond Fund (the “Bond Fund”). The
Lessee may pay the annual rentals and the Additional Rentals, or any other amounts due hereunder,
from any other revenues legally available to the Lessee; provided, however, the Lessee shall be
under no obligation to pay any annual rentals or Additional Rentals or any other amounts due
hereunder from any moneys or properties of the Lessee except the revenues deposited into the
Bond Fund.
3. Payment of Rentals. All rentals payable under the terms of this Lease shall be
paid by the Lessee to the bank or trust company designated as Trustee (“Trustee”) under the Trust
Indenture between it and the Lessor (“Indenture”), or to such other bank or trust company as may
from time to time succeed such bank as Trustee under the Indenture securing the bonds to be issued
by the Lessor to finance the acquisition and construction of the Leased Premises. Any successor
trustee under the Indenture shall be endorsed on this Lease at the end hereof by the parties hereto
as soon as possible after selection, and such endorsement shall be recorded as an addendum to this
Lease. All payments so made by the Lessee shall be considered as payment to the Lessor of the
rentals payable hereunder.
4. Abatement of Rent; Substitution. If any part of the Leased Premises is taken
under the exercise of the power of eminent domain, so as to render it unfit, in whole or part, for
use by the Lessee, it shall then be the obligation of the Lessor to restore and reconstruct that portion
of the Leased Premises as promptly as may be done, unavoidable strikes and other causes beyond
the control of the Lessor excepted; provided, however, that the Lessor shall not be obligated to
expend on such restoration or reconstruction more than the condemnation proceeds received by
the Lessor.
If any part of the Leased Premises shall be partially or totally destroyed, or is taken under
the exercise of the power of eminent domain, so as to render it unfit, in whole or part, for use or
occupancy by the Lessee, the rent shall be abated for the period during which the Leased Premises
or such part thereof is unfit or unavailable for use, and the abatement shall be in proportion to the
percentage of the Leased Premises which is unfit or unavailable for use or occupancy.
Notwithstanding the foregoing, the Leased Premises may be amended to add additional
property to the Leased Premises or remove any portion of the Leased Premises, provided however,
following such amendment, the rental payable under this Lease shall be based on the value of the
portion of the Leased Premises which is available for use, and the rental payments due under this
Lease shall be in amounts sufficient to pay when due all principal of and interest on all outstanding
Bonds. In the event that all or a portion of the Leased Premises shall be unavailable for use by the
Lessee, subject to the completion of any process required by law, the Lessor and the Lessee shall
amend the Lease to add to and/or replace a portion of the Leased Premises to the extent necessary
to provide for available Leased Premises with a value supporting rental payments under the Lease
sufficient to pay when due all principal of and interest on outstanding Bonds.
5. Maintenance, Alterations and Repairs. The Lessee may enter into agreements
with one (1) or more other parties for the operation, maintenance, repair and alterations of all or
5
any portion of the Leased Premises. Such other parties may assume all responsibility for operation,
maintenance, repairs and alterations to the Leased Premises. At the end of the term of this Lease,
the Lessee shall deliver the Leased Premises to the Lessor in as good condition as at the beginning
of the term, reasonable wear and tear only excepted.
6. Insurance. During the full term of this Lease, the Lessee shall, at its own expense,
keep in effect public liability insurance in amounts customarily carried for similar properties. Such
insurance may be provided under the public liability self-insurance program of the City.
Additionally, notwithstanding anything in this Lease to the contrary, Lessee does not waive any
governmental immunity or liability limitations available to it under Indiana law.
The proceeds of the public liability insurance required herein (after payment of expenses
incurred in the collection of such proceeds) shall be applied toward extinguishment or satisfaction
of the liability with respect to which such insurance proceeds are paid. Such policies shall be for
the benefit of persons having an insurable interest in the Leased Premises, and shall be made
payable to the Lessor, the Lessee, and the Trustee and to such other person or persons as the Lessor
may designate. Such policies shall be countersigned by an agent of the insurer who is a resident
of the State of Indiana and deposited with the Lessor and the Trustee. If, at any time, the Lessee
fails to maintain insurance in accordance with this Section, such insurance may be obtained by the
Lessor and the amount paid therefor shall be added to the amount of rentals payable by the Lessee
under this Lease; provided, however, that the Lessor shall be under no obligation to obtain such
insurance and any action or non-action of the Lessor in this regard shall not relieve the Lessee of
any consequence of its default in failing to obtain such insurance.
The insurance policies described in this Section 6 may be acquired by another party and
shall satisfy this Section as long as the Lessor, the Lessee and the Trustee are named as additional
insureds under such policies. Such coverage may be provided by scheduling it under a blanket
insurance policy or policies.
7. Eminent Domain. If title to or the temporary use of the Leased Premises, or any
part thereof, shall be taken under the exercise or the power of eminent domain by any governmental
body or by any person, firm or corporation acting under governmental authority, any net proceeds
received from any award made in such eminent domain proceedings (after payment of expenses
incurred in such collection) shall be paid to and held by the Trustee under the Indenture.
Such proceeds shall be applied in one (1) or more of the following ways:
(a) The restoration of the Leased Premises to substantially the same condition as it
existed prior to the exercise of that power of eminent domain, or
(b) The acquisition, by construction or otherwise, of other improvements suitable for
the Lessee’s operations on the Leased Premises and which are in furtherance of the
purposes of the Act and the Plan (the improvements shall be deemed a part of the
Leased Premises and available for use and occupancy by the Lessee without the
payment of any rent other than as herein provided, to the same extent as if such
other improvements were specifically described herein and demised hereby).
Within ninety (90) days from the date of entry of a final order in any eminent domain
proceedings granting condemnation, the Lessee shall direct the Lessor and the Trustee in writing
6
as to which of the ways specified in this Section the Lessee elects to have the net proceeds of the
condemnation award applied. Any balance of the net proceeds of the award in such eminent
domain proceedings not required to be applied for the purposes specified in subsections (a) or (b)
above shall be deposited in the sinking fund held by the Trustee under the Indenture and applied
to the repayment of the Bonds.
The Lessor shall cooperate fully with the Lessee in the handling and conduct of any
prospective or pending condemnation proceedings with respect to the Leased Premises or any part
thereof and will to the extent it may lawfully do so permit the Lessee to litigate in any such
proceedings in its own name or in the name and on behalf of the Lessor. In no event will the
Lessor voluntarily settle or consent to the settlement of any prospective or pending condemnation
proceedings with respect to the Leased Premises or any part thereof without the written consent of
the Lessee, which consent shall not be unreasonably withheld.
8. General Covenant. The Lessee shall not assign this Lease or mortgage, pledge or
sublet the Leased Premises herein described, without the written consent of the Lessor. The Lessee
shall contract with the other parties to use and maintain the Leased Premises in accordance with
the laws, regulations and ordinances of the United States of America, the State of Indiana, the City
and all other proper governmental authorities.
9. Tax Covenants. In order to preserve the exclusion of interest on the Bonds from
gross income for federal income tax purposes and as an inducement to purchasers of the Bonds,
the Lessee and the Lessor represent, covenant and agree that neither the Lessor nor the Lessee will
take any action or fail to take any action with respect to the Bonds, this Lease or the Leased
Premises that will result in the loss of the exclusion from gross income for federal tax purposes of
interest on the Bonds under Section 103 of the Code, nor will they act in any other manner which
will adversely affect such exclusion; and it will not make any investment or do any other act or
thing during the period that the Bonds are outstanding which will cause any of the Bonds to be
“arbitrage bonds” within the meaning of Section 148 of the Code.
The covenants in this Section are based solely on current law in effect and in existence on
the date of issuance of the Bonds. It shall not be an event of default under this Lease if interest on
any Bonds is not excludable from gross income pursuant to any provision of the Code which is not
in existence and in effect on the issue date of the Bonds.
All Officers, Members, Employees and Agents of the Lessor and the Lessee are authorized
to provide certifications of facts and estimates that are material to the reasonable expectations of
the Lessor and the Lessee as of the date the Bonds are issued and to enter into covenants on behalf
of the Lessor and the Lessee evidencing the Lessor’s and the Lessee’s commitments made herein.
In particular, all or any Members or Officers of the Lessor and the Lessee are authorized to certify
and enter into covenants regarding the facts and circumstances and reasonable expectations of the
Lessor and the Lessee on the date the Bonds are issued and the commitments made by the Lessor
and the Lessee herein regarding the amount and use of the proceeds of the Bonds.
Notwithstanding any other provisions hereof, the foregoing covenants and authorizations
(the “Tax Sections”) which are designed to preserve the exclusion of interest on the Bonds from
gross income under federal income tax law (the “Tax Exemption”) need not be complied with if
the Lessee receives an opinion of nationally recognized bond counsel that any Tax Section is
unnecessary to preserve the Tax Exemption.
7
10. Option to Renew. The Lessor hereby grants to the Lessee the right and option to
renew this Lease for a further like or lesser term upon the same or like conditions as herein
contained, and applicable to the portion of the premises for which the renewal applies, and the
Lessee shall exercise this option by written notice to the Lessor given upon any rental payment
date prior to the expiration of this Lease.
11. Option to Purchase. The Lessor hereby grants to the Lessee the right and option,
on any date, upon sixty (60) days’ written notice to the Lessor, to purchase the Leased Premises,
or any portion thereof, at a price equal to the amount required to pay all indebtedness incurred on
account of the Leased Premises, or such portion thereof (including indebtedness incurred for the
refunding of any such indebtedness), including all premiums payable on the redemption thereof
and accrued and unpaid interest, and including the proportionate share of the expenses and charges
of liquidation, if the Lessor is to be then liquidated. In no event, however, shall such purchase
price exceed the capital actually invested in such property by the Lessor represented by outstanding
securities or existing indebtedness plus the cost of transferring the property and liquidating the
Lessor. The phrase “capital actually invested” as used herein shall be construed to include, but
not by way of limitation, the following amounts expended by the Lessor in connection with the
acquisition and financing of the Leased Premises: organization expenses, financing costs, carry
charges, legal fees, architects’ fees and reasonable costs and expenses incidental thereto.
Upon request of the Lessee, the Lessor agrees to furnish an itemized statement setting forth
the amount required to be paid by the Lessee in order to purchase the Leased Premises, or any
portion thereof, including, but not limited to all indebtedness incurred on account of the Leased
Premises in accordance with the preceding paragraph. Upon the exercise of the option to purchase
granted herein, the Lessor will upon payment of the option price deliver, or cause to be delivered,
to the Lessee documents conveying to the Lessee, or any entity (including the City) designated by
the Lessee, all of the Lessor’s title to the property being purchased, as such property then exists,
subject to the following: (i) those liens and encumbrances (if any) to which title to the property
was subject when conveyed to the Lessor; (ii) those liens and encumbrances created by the Lessee
and to the creation or suffering of which the Lessee consented, and liens for taxes or special
assessments not then delinquent; and (iii) those liens and encumbrances on its part contained in
this Lease.
In the event of purchase of the Leased Premises, or any portion thereof as set forth above,
by the Lessee or conveyance of the Leased Premises, or any portion thereof as set forth above, to
the Lessee or the Lessee’s designee, the Lessee shall procure and pay for all surveys, title searches,
abstracts, title policies and legal services that may be required, and shall furnish at the Lessee’s
expense all documentary stamps or tax payments required for the transfer of title.
Nothing contained herein shall be construed to provide that the Lessee shall be under any
obligation to purchase the Leased Premises, or any portion thereof as set forth above, or under any
obligation respecting the creditors, members or security holders of the Lessor.
12. Transfer to Lessee. If the Lessee has not exercised its option to renew in
accordance with the provisions of Section 10, and has not exercised its option to purchase the
Leased Premises, or any portion thereof, in accordance with the provisions of Section 11, and
upon the full discharge and performance by the Lessee of its obligations under this Lease, the
Leased Premises, or such portion thereof remaining, shall thereupon become the absolute property
8
of the Lessee, subject to the limitations, if any, on the conveyance of the site for the Leased
Premises to the Lessor and, upon the Lessee’s request the Lessor shall execute proper instruments
conveying to the Lessee, or to any entity (including the City) designated by the Lessee, all of
Lessor’s title to the Leased Premises, or such portion thereof.
13. Defaults. If the Lessee shall default (a) in the payment of any rentals or other sums
payable to the Lessor hereunder, or in the payment of any other sum herein required to be paid for
the Lessor; or (b) in the observance of any other covenant, agreement or condition hereof, and such
default shall continue for ninety (90) days after written notice to correct such default; then, in any
or either of such events, the Lessor may proceed to protect and enforce its rights by suit or suits in
equity or at law in any court of competent jurisdiction, whether for specific performance of any
covenant or agreement contained herein, or for the enforcement of any other appropriate legal or
equitable remedy; or the Lessor, at its option, without further notice, may terminate the estate and
interest of the Lessee hereunder, and it shall be lawful for the Lessor forthwith to resume
possession of the Leased Premises and the Lessee covenants to surrender the same forthwith upon
demand.
The exercise by the Lessor of the above right to terminate this Lease shall not release the
Lessee from the performance of any obligation hereof maturing prior to the Lessor’s actual entry
into possession. No waiver by the Lessor of any right to terminate this Lease upon any default
shall operate to waive such right upon the same or other default subsequently occurring.
14. Notices. Whenever either party shall be required to give notice to the other under
this Lease, it shall be sufficient service of such notice to deposit the same in the United States mail,
in an envelope duly stamped, registered and addressed to the other party or parties at the following
addresses: (a) to Lessor: South Bend Redevelopment Authority, Attention: President, c/o
Department of Community Investment, 227 West Jefferson Blvd., Suite 14005, South Bend,
Indiana; (b) to Lessee: South Bend Redevelopment Commission, Attention: President, c/o
Department of Community Investment, 227 West Jefferson Blvd., Suite 14005, South Bend,
Indiana.
The Lessor, the Lessee and the Trustee may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates, requests or other
communications shall be sent.
15. Successors or Assigns. All covenants of this Lease, whether by the Lessor or the
Lessee, shall be binding upon the successors and assigns of the respective parties hereto.
16. Construction of Covenants. The Lessor was organized for the purpose of
acquiring, constructing, equipping and renovating local public improvements and leasing the same
to the Lessee under the provisions of the Act. All provisions herein contained shall be construed
in accordance with the provisions of the Act, and to the extent of inconsistencies, if any, between
the covenants and agreements in this Lease and the provisions of the Act, the Act shall be deemed
to be controlling and binding upon the Lessor and the Lessee; provided, however, any amendment
to the Act after the date hereof shall not have the effect of amending this Lease.
9
IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed for
and on their behalf on the date first written above.
LESSOR: LESSEE:
SOUTH BEND REDEVELOPMENT
AUTHORITY
CITY OF SOUTH BEND, INDIANA,
REDEVELOPMENT COMMISSION
President
President
ATTEST:
Secretary-Treasurer
ATTEST:
Secretary
10
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for this City and State, personally
appeared ____________________________ and ___________________________, personally
known to be the President and Secretary-Treasurer, respectively, of the South Bend
Redevelopment Authority (the “Authority”), and acknowledged the execution of the foregoing
Lease for and on behalf of the Authority.
WITNESS my hand and notarial seal this ____day of _______________, 2019.
(Written Signature)
(Seal)
(Printed Signature)
Notary Public
My Commission expires:
My county of residence is:
11
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for this City and State, personally
appeared ____________________________ and _____________________________, personally
known to be the President and Secretary, respectively, of the South Bend Redevelopment
Commission (the “Commission”), and acknowledged the execution of the foregoing Lease for and
on behalf of the Commission.
WITNESS my hand and notarial seal this ____day of ________, 2019.
(Written Signature)
(Seal)
(Printed Signature)
Notary Public
My Commission expires:
My county of residence is:
I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social
Security Number in this document, unless required by law.
Randolph R. Rompola
This instrument was prepared by Randolph R. Rompola, Barnes & Thornburg LLP,
100 North Michigan, Suite 700, South Bend, Indiana 46601.
A-1
EXHIBIT A
DESCRIPTION OF LEASED PREMISES
All of the City’s interest in all or a portion of the Leased Premises which consists of
Cleveland Road in the City from its intersection with Portage Avenue to its intersection with
Ameritech Drive and which comprise the Leased Premises to be acquired by the Lessor, as more
particularly described below:
[The Leased Premises will be that portion of Cleveland Road in the City from its intersection with
Portage Avenue to its intersection with Ameritech Drive and a legal description with be inserted
here prior to recording.]
B-1
EXHIBIT B
ADDENDUM TO LEASE BETWEEN SOUTH BEND REDEVELOPMENT
AUTHORITY, LESSOR AND SOUTH BEND REDEVELOPMENT COMMISSION,
LESSEE
THIS ADDENDUM (this “Addendum”), entered into as of this ____ day of
_____________, 2019, by and between South Bend Redevelopment Authority (the “Lessor”), and
South Bend Redevelopment Commission (the “Lessee”);
WITNESSETH:
WHEREAS, the Lessor entered into a lease with the Lessee dated as of October 1, 2019
(the “Lease”); and
WHEREAS, it is provided in the Lease that there shall be endorsed thereon the adjusted
rental.
NOW, THEREFORE, IT IS HEREBY AGREED, CERTIFIED AND STIPULATED
by the parties to the Lease that the adjusted rental is set forth on Appendix I attached hereto.
IN WITNESS WHEREOF, the Parties hereto have caused this Addendum to be executed
for and on their behalf as of the day and year first above written.
LESSOR LESSEE
SOUTH BEND REDEVELOPMENT
AUTHORITY
SOUTH BEND REDEVELOPMENT
COMMISSION
President
President
ATTEST:
Secretary-Treasurer
ATTEST:
Secretary
I affirm under the penalties of perjury, that I have taken reasonable care to redact each
Social Security Number in this document, unless required by law.
Randolph R. Rompola
This instrument was prepared by Randolph R. Rompola Barnes & Thornburg LLP,
100 North Michigan, Suite 700, South Bend, Indiana 46601.
B-2
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for this City and State, personally
appeared _________________ and ______________________, personally known to be the
President and Secretary-Treasurer, respectively, of the South Bend Redevelopment Authority (the
“Authority”), and acknowledged the execution of the foregoing Addendum to Lease for and on
behalf of the Authority.
WITNESS my hand and notarial seal this ______ day of ______, 2019.
(Written Signature)
(Seal)
(Printed Signature)
Notary Public
My Commission expires:
My county of residence is:
B-3
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for this City and State, personally
appeared _________________ and ______________________, personally known to be the
President and Secretary, respectively, of the South Bend Redevelopment Commission (the
“Commission”), and acknowledged the execution of the foregoing Addendum to Lease for and on
behalf of the Commission.
WITNESS my hand and notarial seal this ______ day of ______, 2019.
(Written Signature)
(Seal)
(Printed Signature)
Notary Public
My Commission expires:
My county of residence is:
B-4
Appendix I to Addendum to Lease
Adjusted Rental Schedule
Payment
Date
Total
Rental Payment
DMS 15122690v2
NOTICE OF PUBLIC HEARING CONCERNING A
PROPOSED LEASE BETWEEN THE SOUTH BEND REDEVELOPMENT
AUTHORITY AND THE SOUTH BEND REDEVELOPMENT COMMISSION
The South Bend Redevelopment Commission (the “Commission”), the governing body of
the City of South Bend, Indiana, Department of Redevelopment and the Redevelopment District
of the City of South Bend, Indiana (the “District”), on September 26, 2019, adopted a Resolution
approving a proposed Lease Agreement, dated as of October 1, 2019 (the “Lease”), between the
South Bend Redevelopment Authority (the “Authority”), as Lessor, and the Commission, as
Lessee, of all or a portion of Cleveland Road in the City from its intersection with Portage Avenue
to its intersection with Ameritech Drive for the purpose of providing a means to finance the amount
which the City of South Bend has agreed to pay which represents a portion of the amount that St.
Joseph County is obligated to pay as a cash participant pursuant to Indiana Code 36-7.5-4.5-16 in
the Northern Indiana Commuter Transportation District (“NICTD”) Main Line Double-Tracking
Project which consists of the design, engineering, acquisition, renovation, construction,
demolition, installation and/or improvement of certain rail lines owned and/or operated by NICTD
and other projects relating to the foregoing projects (the “Project”).
Pursuant to applicable law, the Commission will hold a public hearing on the proposed
Lease, as well as the Project, on October 10, 2019, at 4:00 p.m. (local time), in Room 1308, at the
County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana. All interested parties
will be provided the opportunity to be heard at the hearing. After the public hearing, which may
be adjourned from time to time, the Commission may adopt a Resolution authorizing the execution
of the proposed Lease if it finds that the service to be provided throughout the term of the proposed
Lease will serve the public purpose of the City of South Bend, Indiana, and is in the best interests
of its residents and that the lease rental provided for is fair and reasonable. The Commission may
modify the proposed Lease after the hearing but may not increase the rent as set out in this notice.
The proposed Lease will have a term of no longer than eleven (11) years beginning on the
date the Authority acquires any interest in the leased premises and ending on the day prior to a
date not later than eleven (11) years after such date of acquisition by the Authority. The maximum
annual lease rental to be paid by the Commission under the proposed Lease is $2,600,000. The
Commission’s lease payments under such Lease will be payable from a special tax levied and
collected by the Commission on all taxable property within the geographical boundaries of the
District pursuant to applicable law, as amended, provided that the Commission expects not to use
the special tax and pay the lease payments under the Lease from available tax increment revenues
from the allocation area previously established for the River West Economic Development Area
which will be benefitted by the Project. The proposed Lease further provides for terms concerning
the use, maintenance, repair, operating and utility costs, indemnification and insurance, destruction
of the premises, defaults, remedies, option to purchase, reduction of the lease rental and term
following the sale of bonds by the Authority for the Project, and miscellaneous other matters.
Dated this 27th day of September, 2019.
SOUTH BEND REDEVELOPMENT
COMMISSION
[PUBLISH ONE TIME ON SEPTEMBER 27, 2019, IN THE SOUTH BEND TRIBUNE]
DMS 15122145v1
As of September 5, 2019
SOUTH BEND REDEVELOPMENT AUTHORITY
LEASE RENTAL REVENUE BONDS OF 2019
(Double Tracking Project)
Planning Calendar
Date Description
Friday,
September 20, 2019
Submit proposed form of resolution and form of lease relating to the
September 26th meeting of the Redevelopment Commission.
Monday,
September 23, 2019
Submit notice of public hearing on the lease to the South Bend Tribune
for publication on September 27th.
Thursday,
September 26, 2019
Redevelopment Commission meets and adopts resolution preliminarily
approving form of lease and authorizing publication of notice of public
hearing regarding lease.
Friday,
September 27, 2019
Redevelopment Commission publishes notice of public hearing on lease
in the South Bend Tribune.
Friday,
October 4, 2019
Submit form of resolution for the meeting of the Redevelopment
Authority.
Friday,
October 4, 2019
Submit form of resolution for the meeting of the Commission.
Thursday,
October 10, 2019
Special meeting of the Redevelopment Authority to adopt a resolution
approving form of lease and determining to issue bonds, subject to
Council approval and adopt a resolution authorizing the transfer of
property.
Thursday
October 10, 2019
Redevelopment Commission meets to hold public hearing on lease and
adopt resolution finding that lease rentals are fair and reasonable and
authorizing execution of the lease, subject to Council approval, and
authorizing the transfer of property (if necessary).
Monday,
October 21, 2019
Submit form of approving resolution to Corporation Counsel office
relating to October 28th Common Council meeting.
Wednesday,
October 23, 2019
File form of approving resolution with the City Clerk for October 28th
Common Council meeting.
2
Date Description
Monday,
October 28, 2019
Common Council considers for adoption resolution approving of the
Commission entering into the proposed lease and the transfer of an
interest in property to be leased to the Redevelopment Authority (if
necessary).
Tuesday,
October 29, 2019
Redevelopment Authority and Redevelopment Commission execute
lease (no meetings required).
Tuesday,
October 29, 2019
Submit notice of execution of lease to the South Bend Tribune for
publication on November 1, 2019, and notice of decision to enter into
lease for publication on November 1 and November 8, 2019.
Friday,
November 1, 2019
Publish notice of execution of lease and notice of decision to enter into
lease and post notice of decision in three public places in the City.
Friday,
November 8, 2019
Submit proposed forms of resolutions for the November 14th meetings of
the Redevelopment Commission and the Redevelopment Authority.
Friday,
November 8, 2019
Second publication of notice of decision to enter into a lease.
Thursday,
November 14 2019
Meeting of the Redevelopment Commission to adopt resolution
regarding back-up for lease payment.
Thursday,
November 14, 2019
Special meeting of the Redevelopment Authority to adopt resolution
authorizing issuance of bonds and execution of documents related to the
issuance of the bonds. Redevelopment Authority also adopts resolution
authorizing acquisition of an interest in the leased property from the
City/Commission.
Monday,
December 2, 2019
30-day period ends.
Wednesday,
December 4, 2019
Bond sale.
Tuesday,
December 17, 2019
Pre-closing.
Wednesday,
December 18, 2019
Bond Closing.
DMS 14863201v1
RESOLUTION NO. 3502
A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT
COMMISSION APPROVING A PROPOSED LEASE WITH THE SOUTH
BEND REDEVELOPMENT AUTHORITY IN CONJUNCTION WITH
THE DOUBLE TRACKING PROJECT, AUTHORIZING PUBLICATION
OF NOTICE OF PUBLIC HEARING IN CONNECTION THEREWITH,
AND ALL MATTERS RELATED THERETO
WHEREAS, the South Bend Redevelopment Commission (the “Commission”), the
governing body of the South Bend Department of Redevelopment and the Redevelopment District
of the City of South Bend, Indiana (the “District”), exists and operates under the provisions of
Indiana Code 36-7-14, as amended from time to time (the “Act”); and
WHEREAS, the Commission, pursuant to declaratory resolutions previously adopted by
the Commission and amended from time to time, the Commission has declared (i) a certain area
of the City of South Bend (the “City) known as the “River West Development Area” (the “Area”)
as a redevelopment area and an allocation area under the Act and approved an economic
development plan for the Area; and
WHEREAS, the City has determined to pay a portion (such portion being referred to herein
as the “City Payment”) of the amount that St. Joseph County is obligated to pay as a cash
participant under Indiana Code 36-7.5-4.5-16 in the Northern Indiana Commuter Transportation
District (“NICTD”) Main Line Double-Tracking Project which consists of the design, engineering,
acquisition, renovation, construction, demolition, installation and/or improvement of certain rail
lines owned and/or operated by NICTD and other projects relating to the foregoing projects
(collectively, the “Double Tracking Project”); and
WHEREAS, the Commission has given consideration to (i) financing the cost of funding
the City Payment which will be used by or on behalf of NICTD to pay for a portion of the cost of
the Double Tracking Project; (ii) fund a debt service reserve fund, if necessary in connection with
the issuance of the Bonds (defined herein); and (iii) pay costs incurred in connection with the
issuance of the Bonds; and
WHEREAS, the Project is located in part within the geographical boundaries of the District
and will benefit the residents of the City by providing future opportunities for new redevelopment
and economic development and job creation in the Area and in the City generally; and
WHEREAS, the Commission, being duly advised, now finds that it is in the best interests
of the City and its citizens for the purpose of financing the City Payment to be used for the Double
Tracking Project and other costs set forth above, to enter into negotiations with the South Bend
Redevelopment Authority (the “Authority”) to enter into a lease (the “Lease”) with the Authority,
as Lessee, for all or a portion of Cleveland Road in the City from its intersection with Portage
Avenue to its intersection with Ameritech Drive in order to provide for increased redevelopment
and economic development and job creation opportunities for the residents of the City; and
WHEREAS, the form of the proposed Lease has been presented to the Commission at this
public meeting; and
ITEM: 5C2
-2-
WHEREAS, after the duly conducted public hearing, the Commission may adopt a
Resolution pursuant to Section 25.2 of the Act authorizing the execution of the proposed Lease on
behalf of the City if it finds that the service to be provided throughout the term of the proposed
Lease will serve the public purpose of the City, is in the best interests of its residents, and that the
Lease rentals provided for are fair and reasonable; and
WHEREAS, the Commission expects that the Authority will consider adoption of a
resolution authorizing the issuance its lease rental revenue bonds (the “Bonds”) in one (1) or more
series for the purpose of financing the cost of the City Payment and the other costs set forth herein;
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND, INDIANA,
REDEVELOPMENT COMMISSION, AS FOLLOWS:
SECTION 1. The Commission hereby preliminary approves the proposed Lease
between the Authority and the Commission in the form presented at this public meeting. The
Commission hereby sets the public hearing on the Lease for Thursday, October 10, 2019, at 4:00
p.m., Room 1308 of the County-City Building, located at 227 West Jefferson Boulevard, South
Bend Indiana, or at such other time and/or place as any Officer of the Commission shall determine.
The Commission hereby authorizes the publication of a notice of the public hearing on the Lease
pursuant to applicable Indiana law and in the form authorized by any Officer of the Commission.
SECTION 2. This Resolution shall take effect, and be in full force and effect,
upon passage and approval by the Commission, in conformance with applicable law.
ADOPTED at a meeting of the South Bend Redevelopment Commission held on
September 26, 2019, in Room 1308, County-City Building, 227 West Jefferson Boulevard, South
Bend, Indiana, 46601.
SOUTH BEND REDEVELOPMENT COMMISSION
By:
Marcia I. Jones, President
ATTEST:
Quentin Phillips, Secretary
DMS 15121970v1
1
RESOLUTION NO. 3491
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 2020 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, in accordance with the Act, the Commission, from time to time, has declared,
confirmed, and established allocation areas for certain redevelopment and economic development
areas within the District for the purposes of tax increment financing; and
WHEREAS, the Commission has further created allocation area funds for the purpose of
receiving tax increment revenues received from the allocation areas; and
WHEREAS, the Commission will be presented with and will consider Resolutions
No. 3492 through 3500, inclusively, for the appropriation of funds from the various allocation
areas of the District (the “Resolutions”); and
WHEREAS, the Commission desires to hold a public hearing to discuss the Resolutions,
which enable the Commission to pay certain expenses related to local public improvements
anticipated for the calendar year 2020, as set forth more particularly in the Resolutions; and
WHEREAS, such appropriations are subject to the provisions of Indiana Code 6-1.1-18-5;
and
WHEREAS, the proposed appropriations are not for the operating expenses of the
Commission.
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT
COMMISSION AS FOLLOWS:
1.The Commission desires to set a public hearing to discuss the Resolutions for the
appropriation of the funds in the not-to-exceed amounts for the various allocation areas as set forth
below:
ITEM: 5C3
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 4:00 p.m. on October 24, 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
September 26, 2019 at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend,
Indiana 46601.
SOUTH BEND REDEVELOPMENT
COMMISSION
______________________________
Marcia I. Jones, President
ATTEST:
______________________________
Quentin Phillips, Secretary