HomeMy WebLinkAboutVI. OLD BUSINESS a. PROGRAMMATIC AGREEMENT
10/16/2020
Page 1
PROGRAMMATIC AGREEMENT
AMONG THE CITY OF SOUTH BEND, THE
INDIANA STATE HISTORIC PRESERVATION OFFICER, AND THE HISTORIC
PRESERVATION COMMISSION OF SOUTH BEND AND ST. JOSEPH COUNTY,
INDIANA REGARDING THE ADMINISTRATION OF CERTAIN
HUD-ASSISTED PROJECTS AND PROGRAMS SUBJECT TO
24 CFR PART 58 IN THE STATE OF INDIANA
THIS PROGROMMATIC AGREEMENT (Agreement) is between the City of South Bend,
acting by and through its Department of Community Investment (City), the Indiana State Historic
Preservation Officer (Indiana SHPO), and the Historic Preservation Commission of South Bend
and St. Joseph County, Indiana (HPC), and is entered into effective the 1st day of January 2020.
WHEREAS, the U.S. Department of Housing and Urban Development (HUD) through various
offices, including the Offices of the Assistant Secretaries for Housing – Federal Housing
Commissioner, Public and Indian Housing, and Community Planning and Development, provides
grant and/or entitlement funding to the State of Indiana and to entitlement communities in
Indiana; and
WHEREAS, the City is an entitlement community in the State of Indiana; and
WHEREAS, the City, now, or may in the future, administer HUD grant and/or entitlement
programs which include, but are not limited to, the following HUD Programs:
American Dream Down payment Initiative Program
Community Development Block Grant Program (CDBG)
Emergency Solutions Grant Program
HOME Investment Partnerships Program
Housing Opportunities for People with AIDS Program
Lead-Based Paint Hazard Control Grant Program
Lead Hazard Reduction Demonstration Grant Program
Neighborhood Stabilization Program
Rental Rehabilitation Program
Continuum of Care Grants
Special Projects Appropriated Under an Appropriations Act for HUD Supportive
Housing Program; and
WHEREAS, HUD regulations at 24 C.F.R. Part 58 implement statutory authorities that permit
certain entities to assume HUD’s environmental responsibilities for various HUD programs, and
included among the statutory authorities under which this responsibility is assumed in compliance
with Section 106 of the National Historic Preservation Act of 1966, as amended [54 U.S.C. §
300101 et seq] (Section 106); and
WHEREAS, the City has determined that implementation of the HUD Programs may include but
are not limited to activities such as housing and commercial building rehabilitation, façade
improvement, relocation of buildings and structures, demolition of buildings and structures, new
construction, and site preparation each of which is an undertaking (Undertaking) as defined
pursuant to 36 C.F.R. 800.16(y); and
WHEREAS, the City has determined that certain activities funded by the HUD Programs may
have an effect on properties included in or eligible for inclusion in the National Register of
10/16/2020
Page 2
Historic Places (Historic Properties) pursuant to 36 C.F.R. Section 800.14 of the regulations
implementing Section 106; and
WHEREAS, in accordance with 36 C.F.R. § 800.14(b)(3), the City has notified the Advisory
Council on Historic Preservation (ACHP) and invited the ACHP to participate in the development
of this Agreement and the Council has declined to participate in consultation for this Agreement;
and
WHEREAS, the City, recognizing their interest in the lands comprising its boundaries, has
invited federally-recognized American Indian tribes listed in Exhibit A to comment and/or
consult in the development of this Agreement, in recognition of the unique government-to-
government relationship between the Federal government and federally-recognized American
Indian tribes and all those tribes who commented are invited to participate in this agreement as
invited signatory parties; and
WHEREAS, this agreement is not applicable to undertakings located in tribal lands subject to the
purview of a Tribal Historic Preservation Officer (THPO) pursuant to Section 101(d)(2)(D)(iii);
and
WHEREAS, the City will continue to conduct outreach and will actively seek and request the
comments and participation of Indian tribes that attach religious and cultural significance to
historic properties that may be affected by Undertakings funded under the terms of this
Agreement; and
WHEREAS, the City acknowledges that Indian tribes possess special expertise in assessing the
National Register eligibility of properties with tribal religious and cultural significance; and
WHEREAS, the City has consulted with the entities listed in Exhibit C in the development of
this Agreement, and invited those parties to be concurring parties to this Agreement; and
WHEREAS, the City has invited the public to consult on the development of this Agreement in
the following ways: a notice of availability of the proposed Agreement and of a public hearing, as
well as solicitation to comment, was published in the local newspaper of highest circulation and
the local Spanish-language newspaper; and the proposed Agreement was made available in the
City’s Department of Community Investment and on the City’s website.
NOW, THEREFORE, the City, the Indiana SHPO, and the HPC agree that the HUD Programs
covered by this Agreement shall be administered in accordance with the following stipulations to
satisfy the Section 106 responsibilities of the City for all individual undertakings of the program.
STIPULATIONS
The City shall ensure that the following measures are carried out:
I. PERSONNEL
The City shall ensure that all historic preservation work carried out pursuant to this Agreement is
performed by or under the direct supervision of a person or persons meeting at least the minimum
qualifications for a professional in architecture, architectural history, or a related preservation
field, as specified in the Secretary of the Interior’s Professional Qualifications Standards (36 CFR
Part 61). The professional shall be either an employee of the City or an outside consultant
10/16/2020
Page 3
retained by the City to perform historic preservation work. The City shall advise the Indiana
SHPO in writing of all professional personnel selected to perform the historic preservation work
and provide personnel qualifications. In the event the professional changes, the City shall notify
the Indiana SHPO in writing of the change and submit the qualifications of the personnel selected
to perform the historic preservation work using the appropriate form found on the Qualified
Professionals section of the Indiana SHPO’s website at http://www.in.gov/dnr/historic. If the
City does not have a qualified professional in place or does not utilize a qualified outside
consultant, then the City will comply with 36 CFR Sections 800.3 through 800.7 with regard to
individual undertakings covered by this agreement.
II. IDENTIFICATION OF HISTORIC PROPERTIES
A. The City shall define the Area of Potential Effects (APE) for each undertaking
and, in consultation with any American Indian tribes that have indicated an
interest in the lands encompassing the APE, identify historic properties within the
APE that may be affected by the project. The APE means the geographic area or
areas within which an undertaking may directly or indirectly cause changes in the
character or use of historic properties, if any such properties exist. The APE is
influenced by the scale and nature of an undertaking and may be different for
different kinds of effects caused by the undertaking (see 36 C.F.R § 800. 16[d]
for further guidance).
B. In the course of conducting project reviews, the City shall note and continue to
update the existing or current Indiana Historic Sites and Structures Inventory
(IHSSI) for St. Joseph County and the IHSSI for the City of South Bend in
consultation with the Indiana SHPO and according to the Secretary of the
Interior’s Standards and Guidelines for Identification and Evaluation: (Standards
and Guidelines for Identification and Evaluation; (48 FR 44720-26). Please note
that, when available, the State Historic Architecture and Archaeological Research
Database (SHAARD) should be used in place of the Interim Report book version
of the IHSSI. Access to SHAARD is available through the Indiana SHPO’s
website. Updates to the inventory shall be provided in an annual report by the
City to the Indiana SHPO as required by Stipulation IX.
C. For projects involving properties that are not identified in the inventory but are
40 years old or older, the City shall apply the National Register of Historic Places
(National Register) Criteria for Evaluation (36 CFR Section 36.6) to determine
those properties’ eligibility for inclusion in the National Register, and follow the
Secretary of the Interior’s Standards and Guidelines for Archaeology and
Historic Preservation (48 FR 44716-42). If there is any question as to whether a
property may meet the criteria, the City shall submit documentation to the
Indiana SHPO for evaluation. If the City disagrees with the opinion of the
Indiana SHPO, the City shall request a determination of eligibility from the
Secretary of the Interior in accordance with applicable National Park Service
regulations.
1. To ensure application of the criteria for evaluation, properties that are not
identified in the survey, but are 40 years old or older, shall be evaluated
by a professional as defined in Stipulation I.
10/16/2020
Page 4
2. The City shall keep a written record of the reason why any property 40
years old or older does not appear to meet the criteria.
D. If an undertaking may adversely affect a National Historic Landmark, the City
shall request the Council and the Secretary of the Interior to participate in
consultation to resolve any adverse effects, as outlined in 36 CFR 800.10.
III. TREATMENTS
A. Properties identified in the inventory as being individually rated Outstanding or
Notable, rated Contributing to an identified district or properties that are
individually listed or contributing to a listed district, or properties determined to
be eligible for inclusion in the National Register by both the City and the Indiana
SHPO shall be rehabilitated in accordance with the recommended approaches in
the Secretary of the Interior’s Standards for the Treatment of Historic Properties;
Guidelines for Rehabilitation of Historic Buildings (Standards and Guidelines for
Rehabilitation; National Park Service, 1995; 36 CFR Section 67.7).
1. To ensure conformance with the Standards and Guidelines for
Rehabilitation, rehabilitation plans shall be reviewed by a professional,
as defined in I, above, before construction begins.
2. When conformance with the Standards and Guidelines for Rehabilitation
is ensured, the City shall document that the project will have no adverse
effect on historic properties within the project APE and retain
documentation in individual project files.
3. The City shall document the property, including photographs, work
write-ups/journal, professional review, etc. before work begins and upon
completion of the rehabilitation to evidence adherence to the Standards
and Guidelines for Rehabilitation. The City shall retain documentation
in individual project files.
B. When it is determined that a project cannot adhere to the Standards and
Guidelines for Rehabilitation or when demolition or relocation of, or any other
adverse effect as defined in 36 CFR Part 800.5(a) on a property that meets the
National Register criteria is proposed, the City shall apply the Criteria of Adverse
Effect in consultation with any American Indian tribe that has attached religious
or cultural significance to the identified historic properties, as required by Part
II.A. hereof. Upon the City’s conclusion of a Finding of Adverse Effect, or if
there is any question as to whether a property may meet the Criteria of Adverse
Effect, the City shall consult with the Indiana SHPO and any interested American
Indian tribe.
1. If the Criteria of Adverse Effect are met, the City will determine if
project activities can be modified to avoid adverse effects. If adverse
effects can be avoided through project modification, the City will
document that the project will have no adverse effect on historic
properties and retain documentation in individual project files.
10/16/2020
Page 5
a. If adverse effects cannot be avoided through project
modification, the City will prepare documentation for individual
submission to the Indiana SHPO and any interested American
Indian tribe that includes all project information and any
mitigation proposals, requesting consultation to resolve adverse
effects. Documentation required by the Indiana SHPO or
interested American Indian tribe for consultation per the
provisions of this Agreement shall meet the requirements in 36
CFR 800.11 and include, but may not be limited to, written
descriptions of the project and affected historic properties (if
any), reports demonstrating that properties are eligible (or not)
for listing in the National Register, evaluations of effect,
alternatives analysis, maps showing specific project locations
and APEs, and photographs.
b. The Indiana SHPO and interested American Indian tribe will
review and respond to the information submitted and may concur
with the adverse effect determination, request additional
information, or object to the finding or its basis. Upon receipt of
concurrence from the Indiana SHPO and interested American
Indian tribe, the City will also notify the ACHP as required by
36 CFR Section 800.6(a)(1).
c. The City will consult with the Indiana SHPO, any interested
American Indian tribe, the ACHP (if participating) and
consulting parties to resolve adverse effects. Agreement among
required signatories regarding the terms of mitigation proposed
for the project will be memorialized in an MOA executed under
36 CFR Section 800.6.
C. At any time during consultation, the City or the Indiana SHPO or any interested
American Indian tribe may request advice from the ACHP or ask for their
involvement in consultation, in accordance with either 36 CFR Section
800.6(b)(2) or 36 CFR Section 800.7.
IV. ARCHAEOLOGY
A. Prior to any ground-disturbing activities as part of new construction or
demolition, site improvements, or other undertakings, the City shall notify the
Indiana SHPO and any American Indian tribe that has indicated an interest in the
lands encompassing the APE, and request an opinion of the potential existence of
significant archaeological resources. This stipulation shall not be applied to the
rehabilitation of residential properties, when no additions are proposed.
1. The City will provide information describing the proposed project
activities and information about the project area’s history and current
condition to the Indiana SHPO and any American Indian tribe that has
that has indicated an interest in the lands encompassing the APE,
including maps and photographs. Indiana SHPO staff and such
interested American Indian tribe will then make a recommendation about
whether an archaeological survey should be conducted.
10/16/2020
Page 6
2. If the Indiana SHPO and interested American Indian tribe recommends
that no survey is justified, then the City will document the outcome of
this consultation within the individual project file. Projects that would
otherwise be exempt from review may then conclude review and all
documentation will be retained in the individual project file.
3. For projects where either the Indiana SHPO or interested American
Indian tribe recommends that an archaeological survey is justified, an
archaeological survey of the affected area shall be carried out in
consultation with the Indiana SHPO or interested American Indian tribe.
Notwithstanding the foregoing, if the Indiana SHPO recommends an
archaeological survey and the interested American Indian tribe does not,
the interested American Indian tribe shall be notified and invited to
provide tribally oriented archaeologists and archaeological monitors to
participate in such survey. Archaeological testing, as appropriate, shall
be undertaken in consultation with the Indiana SHPO and interested
American Indian tribes to determine if properties identified in the survey
meet National Register criteria. If archaeological resources are found to
meet the criteria, work shall immediately cease and whenever feasible,
such archaeological resources shall be avoided or preserved in place.
When the archaeological resources cannot be avoided or preserved in
place, the Indiana SHPO and interested American Indian tribes shall be
consulted, and a treatment plan consistent with the ACHP’s handbook,
Treatment of Archaeological Properties, and approved by the Indiana
SHPO and interested American Indian tribes shall be developed and
implemented. The City will consult with the Indiana SHPO, the
interested American Indian tribes, the ACHP (if participating) and any
consulting parties to resolve adverse effects. Agreement among required
signatories regarding the terms of mitigation proposed for the project will
be memorialized in an MOA executed under 36 CFR Section 800.6. All
identification and testing efforts shall be in accordance with the
Standards and Guidelines for Identification and Evaluation and
appropriate internal guidance and regulation from the Indiana SHPO,
interested American Indian tribes, as well as the appropriate state statutes
and rules.
B. This stipulation shall not be interpreted to include projects where sidewalks or
other minor paving or resurfacing shall occur in areas where previous sidewalks
or paving already exists. It shall not be interpreted to include projects for the
repair or replacement of existing water lines, sewer lines or septic systems within
previously excavated trenches, or other exempt activities described in Stipulation
V below.
V. EXEMPTED ACTIVITIES
The following proposed undertakings have limited potential to affect historic properties and may
be approved by the City without further consultation with the Indiana SHPO or ACHP.
All undertakings not identified under either (A) or (B) of this Stipulation must be reviewed in
accordance with 36 C.F.R. Part 800.
10/16/2020
Page 7
A. General Exemption
1. Projects on residential or non-residential buildings, structures, or
facilities less than 40 years old. Projects may include rehabilitation, but
not construction or demolition.
2. Acquisition of property which is limited to the legal transfer of title with
no physical improvements or changes proposed.
3. Projects consisting of grants or loans to eligible families or entities to be
applied solely to the purchase, refinancing, or leasing of residences or
businesses.
4. Grants or loans to participants in any Economic Development program
funded by CDBG which may be used for working capital, equipment,
furniture, fixtures, and debt refinancing, or acquisition of non-historic
building for reuse. Such activities shall require the Indiana SHPO review
only if such activities should involve changes to structures which are
either listed in or are considered eligible for inclusion in the National
Register.
5. Purchase of equipment; including but not limited to maintenance tools,
or supplies, school buses, lawn mowers, kitchen appliances, books,
furniture that does not require permanent installation, etc.
6. Environmental and other studies
7. Information and financial services
8. Administrative and management activities
9. Inspections and testing of properties for hazards or defects
10. Purchase of insurance
11. Engineering and design costs
12. Assistance for temporary or permanent improvements that do not alter
environmental conditions and are limited to protection, repair or
restoration activities necessary only to control or arrest the effects from
disasters or imminent threats to public safety including those resulting
from physical deterioration.
B. Exempt Activities
The list of exempt activities applies to all projects not otherwise made exempt under
Section V(A) “General Exemption.” For purposes of this Agreement, the term “in-kind
replacement” is defined as installation of a new element that duplicates the material,
dimensions, configuration and detailing of the original element.
1. Site Work
In the event of unanticipated archaeological discoveries for any of the activities
mentioned below, the Indiana SHPO and any American Indian tribe that has indicated an
interest in the lands encompassing the APE shall be contacted within two (2) business
days.
a) Streets, driveways, alleys, and parking areas. Line painting, maintenance, repair
or resurfacing of existing concrete or asphalt surfaces or in-kind
repair/replacement of brick, rock, or stone materials on streets, driveways, alleys,
and parking areas.
10/16/2020
Page 8
b) Curbs, gutters, sidewalks, retaining walls. Repair of existing concrete or asphalt
surfaces or in-kind repair/replacement of brick, rock, or stone materials for curbs,
gutters, sidewalks, and retaining walls.
c) Site improvements. Repair or in-kind repair/replacement of site improvements,
including, but not limited to fences, landscaping, steps not attached to any
building
d) Utilities. Installation, repair or replacement of gas, sanitary and storm sewer,
water, electrical, cable or other underground utilities within previously disturbed
land and public right-of-ways located within city limits.
e) Park and playground equipment. Installation, repair or replacement of park and
playground equipment, excluding buildings.
f) Temporary structures. Installation of temporary construction-related structures
including scaffolding, barriers, screening, fences, protective walkways, signage,
office trailers or restrooms, unless the installation of such temporary structures
requires ground disturbance.
g) Street lighting and traffic signals. Repair and replacement of non-historic street
lights, traffic signals, and traffic signs, outside of a listed or eligible historic
district.
h) Generators. Temporary installation of generators, and permanent installation of
generators that are placed inside existing buildings or that occupy an area under
50 square feet behind the building they serve.
i) Above Ground Utilities. Repair or replacement of existing wires, anchors,
crossarms, and other miscellaneous hardware on existing overhead lines; not
including pole replacement or installation outside city limits. Water tower
replacement is not exempt.
2. Exterior Rehabilitation
In the event of unanticipated archaeological discoveries for any of the activities
mentioned below, the Indiana SHPO and any American Indian tribe that has indicated an
interest in the lands encompassing the APE shall be contacted within two (2) business
days.
a) Foundations. Below-grade repair of brick or stone foundations and repairs to all
other types of foundations. Extensions of the foundation beyond the original
builders trench are not exempt pursuant to this section.
b) Windows and doors. Repair of windows and doors, including caulking and
weather stripping of existing window or door frames, and installation of new
clear glass in existing sashes or doors, including retrofitting for double and triple
glazing, and replacement of glazing putty.
c) Storm windows and storm doors. Installation of exterior storm windows and
doors, provided they conform to the shape and size of the historic windows and
doors, and that the meeting rails of storm windows coincide with that of existing
sash.
d) Walls and siding. Repair of or in-kind replacement of wall or siding material,
including brick, stone, or stucco materials and wood siding.
e) Painted surfaces.
1. Removal of exterior paint by non-destructive means, limited to hand
scraping, low pressure water wash when used according to Preservation
Briefs listed below, heat plates or heat guns, or paint-removal chemicals,
provided that the removal method is consistent with the provisions of 24
10/16/2020
Page 9
C.F.R. Part 35, “Lead-Based Poisoning Prevention in Certain Residential
Structures,” including Section 35.140, “Prohibited methods of paint removal”
and National Park Service Preservation Briefs #1: Cleaning and Water-
Repellent Treatments for Historic Masonry Buildings, #10: Exterior Paint
Problems on Historic Woodwork, and #37: Appropriate Methods for
Reducing Lead-Paint Hazards in Historic Housing.
2. All lead paint abatement that does not involve removal or alteration of
exterior features and/or windows.
3. Application of exterior paint and caulking, other than on previously
unpainted masonry.
f) Porch elements. Repair or in-kind replacement of existing porch elements, such
as columns, flooring, floor joists, ceilings, railing, balusters and balustrades, and
lattice.
g) Roofing. Repair or in-kind replacement of roof cladding and sheeting, flashing,
gutters, soffits, and downspouts with no change in roof pitch or configuration.
h) Awnings. Repair or in-kind replacement of awnings.
i) Mechanical systems. Placement and installation of exterior HVAC mechanical
units and vents not on the front and/or primary elevation, unless occurring in
undisturbed areas.
j) Accessibility ramps. Replacement or repair of existing accessibility ramps and
installation of new accessibility ramps not on the front and/or primary elevation,
unless occurring in undisturbed areas.
k) Basement bulkhead doors. Replacement or repair of basement bulkhead doors
and installation of basement bulkhead doors not on the front elevation.
l) Lighting. Repair or in-kind replacement of existing light fixtures. Installation of
additional decorative or security lights not on the front and/or primary elevation.
m) Mothballing. Securing or mothballing a property by boarding over window and
door openings, making temporary roof repairs, and/or ventilating the building in
accordance with Preservation Brief 31: Mothballing Historic Buildings.
3. Interior Rehabilitation
a) Mechanical systems. Installation, replacement or repair of plumbing, HVAC
systems and units, hot water heaters, furnaces, electrical wiring and fire
protection systems, provided no structural alterations are involved. Included are
restroom improvements for handicapped access, provided the work is contained
within the existing restroom walls.
b) Surfaces. Repair or in-kind replacement of interior surface treatment, such as
floors, walls, ceilings, plaster and woodwork. If covering historic features, such
as wood floors, then carpet or sheet goods (linoleum or vinyl) shall be installed in
a reversible manner, either through tacking or with an underlayment so historic
floors shall not be irreversibly damaged.
c) Insulation. Installation of non-spray insulation in ceilings, basements, attics and
crawl spaces.
d) Basement floor. Installation or repair of concrete basement floor in an existing
basement.
e) Lead paint and asbestos abatement. Abatement or control of lead-based paint,
consistent with provisions of 24 C.F.R. Part 35 (“Lead-Based Poisoning
Prevention in Certain Residential Structures”) and the lead based paint abatement
or “Management in Place” activities carried out in accordance with Preservation
Brief #37: Appropriate Methods for Reducing Lead-Paint Hazards in Historic
10/16/2020
Page 10
Housing, and/or asbestos abatement that does not involve removal or alteration of
interior features.
f) Bath and kitchen fixtures. Repair or replacement of non-historic bathroom and
kitchen equipment and fixtures.
g) Accessibility. Modification of a bathroom for handicapped access within the
walls of the existing bathroom. Installation of wedges and removal of thresholds
to facilitate access through door openings.
VI. CONSULTING PARTIES
The City shall invite the participation of consulting parties as appropriate to the scale of the
undertaking and the scope of Federal involvement. Parties that may have a consultative role in
the Section 106 process include, but are not limited to the following: Federally recognized Indian
tribes, THPO, representatives of local governments, county and municipal historic preservation
commissions including those established under the Certified Local Governments (CLG) program,
the public, and individuals and organizations with a demonstrated interest due to the nature of
their legal or economic relation to the undertaking, or their concern for the undertaking's effects
on historic properties.
VII. TRIBAL CONSULTATION
A. The City shall follow HUD Notice CPD-12-006: Process for Tribal Consultation
in Projects That Are Reviewed Under 24 CFR Part 58.
B. The City has sent the letter in Exhibit B to the tribes listed in Exhibit A. These
letters have been individually addressed to the tribal leaders of the listed tribes
which have expressed interest in Indiana, and those identified by referencing the
HUD Tribal Directory Assessment Tool (TDAT) at
http://egis.hud.gov/tdat/Tribal.aspx.
C. Unless a Tribe has indicated to the City that it wants to engage in government-to-
government consultation with HUD, the City may initiate consultation with
Tribes for individual undertakings carried out under the provisions of this
Agreement. The City shall ensure that Tribes are provided information regarding
proposed undertakings early in project planning and are invited to participate in
consultation in accordance with the requirements of Section 101(d)(6) of the
NHPA and 36 CFR Part 800. Upon receipt of a written request from any Tribe
or officially designated representative of a Tribe to consult with the City, the City
shall consult with that Tribe for the particular undertaking or program.
D. If a Tribe indicates to the City that it wishes to engage in government-to-
government consultation with HUD for an undertaking:
a. The City will forward that request to HUD
b. HUD may utilize the processes and exemptions in this Agreement in
conducting its Section 106 review of the relevant undertaking.
c. Ground disturbing activities on the relevant undertaking will not proceed
until HUD has concluded its government-to-government consultation
with the requesting Tribe.
E. Nothing in this Part VII shall relieve the City from its obligation to affirmatively
consult with any interested American Indian tribe in accordance with the requirements of
36 C.F.R. Part 800.
10/16/2020
Page 11
VIII. PUBLIC NOTIFICATION AND INVOLVEMENT
Each year the City shall notify the public of its current HUD programs and make available for
public inspection documentation related to these programs. This documentation shall include:
A. Types of activities undertaken with program funds during the prior year and
activities projected for the current year.
B. Information on identified historic properties that might be affected and the
location of said properties.
C. Funding level for the current program year.
D. The way in which interested persons can obtain additional information on
programs and advise the City, HUD, the Indiana SHPO, or the ACHP of any
concerns they might have relative to program effects on historic properties.
Notwithstanding the foregoing and to the extent permitted by Section 304 of the NHPA, Section
9(a) of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. §470aa-470mm), the
Indiana Access to Public Records Act (I.C. §5-14-3), and any other applicable laws, the City shall
not disclose information that is deemed confidential or otherwise not subject to public disclosure.
In so doing, the City shall, to the extent required by 36 C.F.R. §800.2(c)(2)(ii)(A) and (E) and
permitted by I.C. §5-14-3, abide by the interested American Indian tribes' requests regarding the
confidentiality of information disclosed during consultations performed pursuant to this
Agreement.
IX. MONITORING AND OVERSIGHT
A. The Indiana SHPO shall provide technical assistance, consultation, and advice as
requested by the City in order to assist in carrying out the terms of this
programmatic agreement.
B. Documentation of all work undertaken in the HUD programs shall be retained by
the City and available to the Indiana SHPO. The City shall submit a brief,
written report to the Indiana SHPO and all invited signatories hereto on an annual
basis, by January 31 of the following year, summarizing HUD-funded activities
covered by the programmatic agreement; including information of how the City
has evaluated historic resources and applied the Secretary of Interior’s Standards
(as necessary) to projects and updates to the IHSSI for St. Joseph County and the
IHSSI for the City of South Bend. The Indiana SHPO may request
documentation be submitted or make a site visit to review the work outside of the
annual reporting with reasonable notice.
C. This Annual Report shall include:
1. a list of projects, categorized by name, exempt status, whether or not a
historic property was involved, the address and IHSSI site number of any
historic properties involved, determination of effect
2. the views of the City regarding the effectiveness of the Programmatic
Agreement
10/16/2020
Page 12
3. suggestions for additional actions that could be considered for inclusion
in the Exempt Activities list.
X. DISPUTE RESOLUTION
Should any signatory, including invited signatories, or concurring party to this Agreement object
at any time to any actions proposed or the manner in which the terms of this Agreement are
implemented, the City shall consult with such party to resolve the objection. If the City
determines that such objection cannot be resolved, the City will:
A. Forward all documentation relevant to the dispute, including the City’s proposed
resolution, to the ACHP. The ACHP shall provide the City with its advice on the
resolution of the objection within thirty (30) days of receiving adequate
documentation. Prior to reaching a final decision on the dispute, the City shall
prepare a written response that takes into account any timely advice or comments
regarding the dispute from the ACHP, signatories, including invited signatories,
and concurring parties, and provide them with a copy of this written response.
The City will then proceed according to its final decision.
B. If the ACHP does not provide its advice regarding the dispute within the thirty
(30) day time period, the City may make a final decision on the dispute and
proceed accordingly. Prior to reaching such a final decision, the City shall
prepare a written response that takes into account any timely comments regarding
the dispute from the signatories, including invited signatories, and concurring
parties to the Agreement and provide them and the ACHP with a copy of such
written response.
C. Carry out all other actions subject to the terms of this Agreement that are not the
subject of the dispute remain unchanged.
XI. EMERGENCIES
A. When an emergency undertaking is required, the City shall allow the Indiana
SHPO and each American Indian tribe claiming an interest in the lands
encompassing the APE five (5) business days from receipt of the information to
respond, if feasible. Emergencies exist when there is a need to eliminate an
imminent threat to health and safety of residents as identified by local or County
building inspectors, fire department officials, or other local or County officials.
1. The City shall forward documentation to the Indiana SHPO and each
American Indian tribe claiming an interest in the lands encompassing the
APE for review immediately upon notification that an emergency
exists. Documentation should include a) nature of the emergency; b) the
address of the historic property involved; c) photographs showing the
current condition of the building; and d) the time-frame allowed by local
officials to respond to, or correct, the emergency situation.
2. The City shall consider mitigation measures recommended by the
Indiana SHPO and each American Indian tribe claiming an interest in
the lands encompassing the APE and implement them, if feasible.
10/16/2020
Page 13
B. Undertakings limited to immediate rescue and salvage operations are exempt
from this stipulation.
XII. POST REVIEW DISCOVERIES AND UNFORESEEN EFFECTS
If, during the implementation of these programs, a previously unidentified property that may be
eligible for inclusion in the National Register is encountered, or a known National Register
historic property may be affected in an unanticipated manner, the City will assume its
responsibilities pursuant to 36 C.F.R. Part 800.13.
A. In the event that previously unidentified archeological sites or human remains are
discovered during project construction, that portion of the project shall stop
immediately within 100 feet of the discovery and the project manager shall notify
the City, Indiana SHPO/THPO, each American Indian tribe claiming an interest
in the lands encompassing the APE, and other consulting party signatories within
48 hours, and shall take appropriate steps to immediately secure the site.
B. In addition, the project manager shall notify local and/or state law enforcement
authorities including the county coroner.
C. The City shall consult with the Indiana SHPO and each American Indian tribe
claiming an interest in the lands encompassing the APE to determine if the
discovered site appears eligible for the National Register. If it does appear
eligible, the City shall submit a treatment plan for the avoidance, protection,
recovery of information, or destruction without data recovery to the Indiana
SHPO and each American Indian tribe claiming an interest in the lands
encompassing the APE for review and comment. The treatment plan shall be
consistent with the ACHP’s handbook Treatment of Archaeological
Properties and subsequent amendments and Indiana SHPO guidelines. If
human remains are discovered, the treatment plan shall follow the guidance in
Advisory Council on Historic Preservation Policy Statement Regarding
Treatment of Burial Sites, Human Remains and Funerary Objects, including
appropriate consultation with descendent communities. Construction work in the
area of the discovery shall not continue until the plan has been accepted by the
signatory parties, including the invited signatories, and implemented.
D. All human burial sites in Indiana are protected under state statutes, and any
undertaking that may affect a human burial site shall comply in accordance with
any applicable Federal and State statutes and codes before the project resumes. .
If any archaeological artifacts or human remains are uncovered during
construction, demolition, or earthmoving activities, state law (Indiana Code 14-
21-1-27 and 29) requires that the discovery must be reported to the Department
of Natural Resources within two (2) business days. In that event, please call
(317) 232-1646. Be advised that adherence to Indiana Code 14-21-1-27 and 29
does not obviate the need to adhere to applicable federal statutes and regulations
XIII. NOTIFICATION
Notification or other communication between parties to this agreement should be made in care of
addresses provided in Exhibit C.
10/16/2020
Page 14
XIV. AMENDMENT
Any party may request that this Agreement be amended, whereupon the City and the Indiana
SHPO will consult with the other parties in accordance with 36 C.F.R. Part 800.14(b) to consider
an amendment. Amendments will only be considered if made in writing and must be approved in
writing by all parties to this Agreement to go in effect.
XV. TERMINATION
Any party to this Agreement may terminate its participation by providing thirty (30) days written
notice to all other parties. In the event of termination, the City will comply with 36 C.F.R. Part
800 with respect to individual undertakings covered by this Agreement.
XVI. TERM OF THE AGREEMENT
Following signature by the City and the Indiana SHPO, this Agreement will be binding on a party
upon the date of its signature and shall be in force until December 31, 2024. At any time in the
twelve-month period prior to that date, any signatory may request an amendment to extend the
duration of this Agreement in accordance with stipulation XIV.
Signature Pages Follow
10/16/2020
Page 15
EXECUTION AND IMPLEMENTATION of this Agreement evidences that the City has
satisfied its responsibilities under Section 106 for undertakings as described in this Agreement
and funded by the HUD Programs.
SIGNATORIES:
Authorized SignatoryDept. of Community Investment, City of South Bend, Indiana
Date
President, Historic Preservation Commission of South Bend and St. Joseph County, Indiana
Date
Indiana Deputy State Historic Preservation Officer Date
Invited Signatories Page Follows
10/16/2020
Page 16
EXECUTION AND IMPLEMENTATION of this Agreement evidences that the City has
satisfied its responsibilities under Section 106 for undertakings as described in this Agreement
and funded by the HUD Programs.
INVITED SIGNATORIES:
Chairman of Executive Council, Forest County Potawatomi Date
Chief, Miami Tribe of Oklahoma Date
Chairperson, Pokagon Band of Potawatomi Indians, Michigan and Indiana Date
10/16/2020
Page 17
10/16/2020
Page 18
EXHIBIT A
Kelli Mosteller, THPO John Barrett, Chairperson
Citizen Potawatomi Nation, Oklahoma Citizen Potawatomi Nation, Oklahoma
1899 S. Gordon Cooper Drive 1601 S. Gordon Cooper Drive
Shawnee, OK 74801 Shawnee, OK 74801
Diane Hunter, THPO Douglas Lankford, Chief
Miami Tribe of Oklahoma Miami Tribe of Oklahoma
P.O. Box 1326 P.O. Box 1326
Miami, OK 74355 Miami, OK 74355
Kenneth Meshigaud, Chairperson Brett Barnes, THPO
Hannahville Indian Community, Michigan Eastern Shawnee Tribe of Oklahoma
N14911 Hannahville B1 Road 12705 E. 705 Road
Wilson, MI 49896 Wyandotte, OK 74370
John Warren, Chairperson Marcus Winchester, THPO
Pokagon Band of Potawatomi Indians, Pokagon Band of Potawatomi Indians,
Michigan and Indiana Michigan and Indiana
P.O. Box 180 P.O. Box 180
Dowagiac, MI 49047 Dowagiac, MI 49047
Wesley Andrews, THPO Regina Gasco-Bentley, Chairperson
Little Traverse Bay Bands of Odawa Indians, Little Traverse Bay Bands of Odawa Indians,
Michigan Michigan
7500 Odawa Circle 7500 Odawa Circle
Harbor Springs, MI 49740 Harbor Springs, MI 49740
Thomas Wabmum, THPO Liana Onnen, Chairperson
Prairie Band Potawatomi Nation Prairie Band Potawatomi Nation
16281 Q Road 16281 Q Road
Mayetta, KS 66509 Mayetta, KS 66509
Harold Frank, Chairperson
Forest County Potawatomi Community of Wisconsin
P.O. Box 340
Crandon, WI 54520
10/16/2020
Page 19
EXHIBIT B
Date
[Name, Title]
[Organization]
[Address]
Re: Notification of Intention to Implement a Programmatic Agreement for HUD-Funded Programs and
Invitation to Participate in Consultation Regarding Projects Carried out Under These Programs
Dear [Mr./Ms. Name]:
The City of South Bend intends to enter into a Programmatic Agreement (PA) with the Indiana State Historic
Preservation Office (SHPO) to facilitate Section 106 compliance for programs using funding originating from the U.S.
Department of Housing and Urban Development (HUD).
Under the provisions of this PA, the City would assume the function of initiating the Section 106 process for projects
utilizing HUD funding within their jurisdiction. Accordingly, under the PA, the City would be initiating Section 106
consultation with the SHPO and other consulting parties, including your tribe.
The City takes its responsibility to consult with Indian Tribes seriously and therefore wants to ensure that your tribe is
comfortable proceeding under such an arrangement. Accordingly, under the terms of this PA, on receipt of a written
request from any Indian Tribe or officially designated representative of an Indian Tribe, the City will consult with that
Indian Tribe in completing the Section 106 review process with regard to ground-disturbing activities located in areas
designated as being of concern to any Indian Tribe. Please respond to this letter stating such a preference and
identifying if there are areas of concern to your tribe within the City of South Bend.
If your tribe prefers to conduct government-to-government consultations directly with the Department of Housing and
Urban Development, as opposed to the City, please use the following address for such letters:
U.S. Department of Housing and Urban Development
Attn: Secretary of HUD
451 7th Street S.W.
Washington, DC 20410
Understand that if we do not get a response from your tribe, we will assume that your tribe does not object to the City’s
initiation of consultation with your tribe regarding undertakings under the scope of the PA. We appreciate your
attention to this matter. If you have any questions, please contact me by phone (574) 235-5841 or email
ltimmer@southbendin.gov. Thank you.
Sincerely,
Lory L. Timmer
Manager, Neighborhood Grants
Department of Community Investment
City of South Bend
Enclosures:
Draft Programmatic Agreement for HUD-funded programs
Copy:
Chad Slider, DHPA, 402 W Washington Street, Room W274, Indianapolis, IN 46204
10/16/2020
Page 20
EXHIBIT C
REQUIRED SIGNATORIES
Authorized Signatory, Department of Community Investment, City of South Bend
227 W. Jefferson Boulevard, Suite 1400S
South Bend, IN 46601
(574) 235-9371
President, Historic Preservation Commission of South Bend and St. Joseph County, Indiana
227 W. Jefferson Boulevard, Suite 1400S
South Bend, IN 46601
(574) 235-7672
Indiana State Historic Preservation Officer
402 W. Washington Street, Room W274
Indianapolis, IN 46204-2739
(317) 232-1646
INVITED CONSULTING PARTIES
Advising Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001-2637
(202) 517-0200
Travis Childs, St. Joseph County Historian
808 W. Washington Street
South Bend, IN 46601
(574) 235-9664 ext. 242
tchilds@historymuseumSB.org
History Museum
https://historymuseumSB.org
808 W. Washington Street
South Bend, IN 46601
(574) 235-9664 ext. 227
Randy Ray, Executive Director
director@historymuseumSB.org
Michiana Jewish Historical Society
https://michianajewish.org
3202 Shalom Way
South Bend, IN 46615
(574) 245-5850
Margaret Goldberg, Executive Director
10/16/2020
Page 21
history@michianajewish.org
South Bend Area Genealogical Society
https://www.sbags.org/main.htm
209 Lincolnway East
Mishawaka, IN 46544
Alice Clark, President
c.alice@sbcglobal.net
Indiana Landmarks – Northern Regional Office
https://www.indianalandmarks.org/contact/northern-regional-office/
801 W. Washington Street
South Bend, IN 46601
(574) 232-4534
Todd Zeiger, Director
tzeiger@indianalandmarks.org