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Community & Economic Development
1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fox 574/235 -9021
To: Redevelopment Commission
From: David Relos, Economic Development Planner
Subject: Professional Services Agreement — Danch Harner, Assoc.
NW corner Indiana & Kemble rezoning, ROW vacation, repiat
Date: October 25, 2012
The attached Professional Services Agreement is a proposal from Danch, Harner &
Associates to do the necessary planning, surveying, notifications, etc., to rezone, repiat,
and vacate excess right of way at the northwest corner of Indiana & Kemble.
There are three lots which make up this corner. The Commission owns two lots, with the
other lot occupied by Phoenix Engineering. Phoenix is in need of expanding their business
by adding on to their building to the north and west. The Commission recently approved the
disposition of the two lots needed for Phoenix's expansion. Phoenix would like to purchase
these two lots once the necessary rezoning, etc., is completed.
This corner is currently zoned Mixed Use, with Phoenix being grandfathered under this
zoning classification. To expand capacity, the property needs to be rezoned to Light
Industrial and variances granted {setbacks, landscaping, etc.). There is also excess right of
way on the south side of Phoenix's property which needs to be vacated, and the three
parcels need to be replatted to allow the rezoning, and ultimately the expansion, to occur.
Project services cost is $9,275 for the planning, surveying, and replat work, which includes
attending and presenting to the Area Plan Commission, Board of Public Works, Common
Council, and the Plat Committee. Filing fees to complete the work is $1,535, for a total of
$10,810. Staff requests a not -to- exceed amount of $11100, in the event other variances or
miscellaneous filing fees are needed to complete the work.
Staff requests approval of this Professional Services Agreement, to allow this corner to be
rezoned, replatted, and excess right of way to be vacated-
What We Do Today Makes A Difference!
Vacant Lots North & West of
Phoenix Engineering
M14Danch, Harner & Associates, Inc.
Michael J- Danch, L ., ASLA Land Surveyors • Professional Engineers
Ron Harner, P.S. Landscape Architects • Land Planners
Tuesday, October 16, 2012
Mr. David Relos
Planner
Community & Economic Development Department
12`h Floor County -City Building
227 West Jefferson Blvd.
south Bend, Indiana 46601
Re: Preparation of a Street Vacation, Rezoning
& Variance and Subdivision Replat Petition for
N.W. corner of Indiana Ave. & Kemble Street
South Bend, Indiana:
Professional Services Quote:
Dear Mr. Relos:
Danch, Harner & Associates, Inc. (DHA) is pleased to submit
this proposal for professional services to assist in the proposed
addition to the existing industrial building located at the
Northwest corner of Indiana Avenue and Kemble Street, south Bend,
Indiana. Per our meeting on October 15C° discussing this project
with the Area Plan Commission staff and Building Department, we
would need not only to rezone the property from the present "Mil"
Mixed Use District classification, but also request Variances for
the proposed building addition landscaping, parking, a partial
Street Vacation and a Subdivision Replat.
You and I discussed these issues. Per our meeting with the
Building Department and the Area Plan Commission staff's we have
determined all the required Variances for the proposed site
improvements. Since we are rezoning the property from the "MU"
Mixed Use classification to the "TT" Light Industrial
1643 Commerce Drive • South Bend. IN 46628 208 West Mars • Berrien Springs_ MI 49103
Office: (574) 234-40031(800) 594-4003 • Fax (574) 2344119 Office (269)471-30110-Fax (269) 471 -7237
( ktober 16, 2012
classification, we need to bring the property into compliance
with all development standards in the "LI" district. It appears
the number of Variances needed is 11. we would also need to
request a partial street vacation for a sliver of property
located adjacent to and south of the petition site.
we would be able to combine our request into a Rezoning and
Variance Petition, which would be heard before the Area Plan
Commission and then before the City Council for the rezoning
issue. The Area Plan Commission would have authority over
granting the Variance requests and only recommend the rezoning to
the Council. The partial street vacation would be heard by the
City Council after they receive a report from the Board of Public
works. we will need to work with Tony Molnar in City Engineering,
as they have to prepare the vacation diagram that is used on the
vacation ordinances.
We would also prepare a Subdivision Replat to combine all the
properties and portion of vacated right -of -way into a single lot.
This would help eliminate additional variance requests as
discussed in our meeting.
We would provide Planning services for this project, which
would include preparing a Rezoning- variance Petition, variance
justification documents, Rezoning Ordinance, notice to adjacent
property owners within 300 feet and a preliminary site
development plan detailing the location of the proposed building
addition, parking area(s)and preliminary drainage areas as
required. We would work with City Engineering on the preparation
of the Street Vacation documents, diagram and ordinances. We
would represent the City and Petitioner at all required Public
Hearings. We would also prepare a One (1) lot Subdivision Replat
to create a single lot.
The Scope of Services is as follows:
A). Planning Services:
I. Preparation of a Rezoning- Variance Petition, Variance
justification documents, Rezoning ordinance, notice to adjacent
property owners within 300 feet and a preliminary site
development plan detailing the location of the proposed building,
parking area(s), and preliminary drainage areas and
representation at required public hearings before the Area Plan
Commission and the City Council.
Costof Planning work ...................................... ............................... ...................................................... $ 3,475
(owner pays filing fee, & mailing costs of $ 910
not included in Planning costs)
( ktaber 16, 2012
The next submittal date for the Rezoning Petition is November 7th
for a December 18`h with the Area Plan Commission and a possible
January 14th, or January 28th 2013 Council meeting.
B). Surveying & Planning Services for partial street vacation:
1. Preparation of a partial street Vacation Petition for Indiana
Avenue including sending a survey crew to determine boundary of
vacated area and location of existing improvements for Indiana
Avenue pavement and sidewalk and working with City Engineering
for required documents, vacation legal and diagram, notice to
adjacent property owners within 150 feet and representation at
required public hearings before the City Council.
Cost of Survey &
(owner pays fili
included Survey
Planning work.........
g fee, & mailing
& Planning work)
costs $ 375, not
C). Surveying for Subdivision Replat:
$ 2,850
1. Preparation of a One (1) Lot Subdivision Replat, including
survey of the properties to be combined into a single lot, the
required application forms, subdivision replat drawing to be
submitted to Area Plan Commission, setting of lot corners and
representation at required Plat Committee meeting for subdivision
approval.
Cost of Survey work.........
(Owner pays filing fee
in survey work)
of $ 250, not included
..... $ 21950
We will require copies of the recorded deeds for the properties
involved in the Subdivision Replat.
Thank you for considering DHA for this important project. If
you have any questions, please call us at (574) 234 -4003. If you
find this proposal acceptable, please execute this document in
the space provided, or provide other documentation of your
acceptance and authorization to proceed.
we would require payment in the amount of $ 5,010, which would
cover our costs plus filing fees to prepare the necessary
rezoning and variance, documents and site plan required for the
City's rezoning /variance process. It would also cover our costs
for filing fees of the Street vacation request and Subdivision
Replat. we would invoice for the office and fieldwork for items
"B" and "C" once they are submitted for approval. Once we have
the documents prepared, the present property owners and the City
+ October 16, 2012
will need to sign the application forms, they will be the
petitioners.
Attached are our hourly rates for any requested additional
services or requested revisions to rezoning site plan by the
owner or review agencies.
Once the rezoning, variances and street vacation petitions
are approved we can quote a cost to prepare a topographic survey
for the property along with preparing an engineered site plan as
required by the City for the proposed site improvements.
if you have any questions concerning this matter, please feel
free to give me a call_
Sincerely,
.ilwAaeG$ ga"tck
Michael J. Danch
President
Danch, Harner & Associates, Inc.
(Person, Firm, Partnership or Corporation)
(By Its Corp. Secretary or Auth. Agent)
(Printed Name)
Date
-5 — October 16, 2012
DANCH, HARNER & ASSOCIATES. INC.
EFFECTIVE DATE: JANUARY 2012
SCHEDULE OF HOURLY RATES AND DIRECT EXPENSES
CLASSIFICATION
HOURLY BILLING RATE
Senior Professional Engineer
$138.00
Engineering Designer
$80.00
Project Engineer
$70.00
Senior Professional Land
Surveyor
$138.00
Senior Survey /Engineering
Tech
$80.00
Survey /Engineering Tech
$55.00
Senior Professional Landscape
Architect
$138.00
Survey Manager
$70.00
Two Person Field Crew
$120.00
Principal
$138.00
Clerical
$45.00
ITEM
UNITS
UNIT PRICE
Mileage
Miles
$0.50
Copies*
Each
$0.25
Standard size
Prints (24 x 36)
Each
$4.00
Oversize Prints
Square Foot
$1.00
vellums (24 x 36
size)
Each
$10.00
Overnight Travel:
Meals
Cost
Lodging
Cost
Public
Cost
- n t ktolxr 16, 2012
Transportation
*Note: copies include 81/2 x 11, 81/2 x 14, or 11 x 17 size
sheets.
Other direct expenses may include cost to obtain copies of
documents such as deeds or plats, maps, or other items purchased as
a direct result of employment on the project. NOTE THAT MILEAGE IS
NOT CHARGED FOR PROJECTS WITHIN ST. JOSEPH COUNTY, INDIANA OR
BERRIEN COUNTY, MICHIGAN.
� c (�)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement ") between UNION STATION
PROPERTIES, LP ("Union Station "), an Indiana Limited Partnership, and the CITY OF
SOUTH BEND, INDIANA, a municipal corporation ( "City "), by and through the South Bend
Redevelopment Commission ( "Commission ") is made this _ day of October, 2012. This
Agreement is intended to supersede the Memorandum of Understanding effective April 7, 2012
( "MOU ll").
RECITALS
WHEREAS, the Commission exists and operates under the provisions of Indiana Code § 36 -7-
14, commonly known as the "Redevelopment of Cities and Towns Act of 1953.° as amended
from time to time ("Act "); and
WHEREAS, the Indiana legislature has determined that the clearance, replanning and
development of redevelopment areas are public uses and purposes for which public money may
be spent; and
WHEREAS, Union Station owns property in the South Bend Central Development Area
( "SBCDA'7 as established by the Commission, commonly known as 506 West South Street,
South Bend, Indiana 46601 (the "Property "); and
WHEREAS, Union Station desires to expand its operations as a three phased private
development to be known as the Union Station Technology Center ( "USTC ") on land bordered
or bounded by South Street, Lafayette Boulevard, Sample Street, and Prairie Avenue (the
"Renaissance District ") in the Airport Economic Development Area ("ADEA "), as established
by the Commission in South Bend, Indiana; and
WHEREAS, Union Station has continuously developed and adaptively reused the Property,
allowing Union Station to become Indiana's second largest "carrier hotel" with over 6,000 fiber
end points within the building and hosting over sixteen national carriers; and
WHEREAS, Union Station offers low cost computing space and power, which enables its
customers to compete in the global technology marketplace; and
WHEREAS, the focus of the USTC is to enhance and expand Union Station's core products of
space, power, and connectivity; and
WHEREAS, the proposed phased development will provide the space necessary for the
mechanical equipment that produces power product, expand data center floor space, enable a
secure loading dock area, and scale up the current utilization of the patent pending combined
heating and cooling technology known as the Integrated Central Power System (the "IC Power
System "); and
WHEREAS, without this expansion, Union Station will not be able to accommodate its sustained
growth over the next several years or to assist in the economic development of the Coveleski
Planning Development District to the north, and Ignition Park to the south; and
WHEREAS, the Commission has already taken steps to assist in the development of USTC by
authorizing a proposal for professional services related to master planning and street vacation
and also by negotiating the sale of the Millennium Environmental Site, consisting of 2.6 acres at
604 South Scott Street, in the AEDA (the "Millennium Site'), to Union Station or its affiliate for
the agreed price of $42,500; and
WHEREAS, the City of South Bend, through its Board of Public Works, has taken further action
in support of the USTC by funding the installation of a communication and power duct bank
which connects a power substation on Lafayette Street to Union Station and other business and
properties in the general vicinity; and
WHEREAS, the Commission has authorized a proposal for a Phase I Environmental Site
Assessment and Phase It Environmental Site Assessment. Asbestos Containing Material Survey,
and Lead Paint Survey for Ivy Tower, commonly known as 635 South Lafayette; 600 United
Drive, and vacant lot on United Drive, situated in the City of South Bend, Indiana ( "Ivy Tower
Building'); and
WHEREAS, environmental investigations have revealed potential PCB contamination at or
around the Ivy Tower Building; and
WHEREAS, Union Station will take all reasonable steps to maximize the educational benefits to
the City of the USTC; and
WHEREAS, it is anticipated that Union Station or an affiliate of Union Station will purchase the
Ivy Tower Building to develop a collaborative multi -tenant facility and expand Union Station's
capabilities to provide not only Union Station but the surrounding community with an IC Power
System that will be capable of serving the SBCDA, Ignition Park. and other secondary buildings
within close proximity to the Property; and
WHEREAS, Union Station anticipates that development of the Ivy Tower building will create at
least 300 new jobs in the Renaissance District over time and result in significant energy savings
to the City; and
WHEREAS, the Commission believes that development of the USTC as described herein is in
the best interests of the health, safety and welfare of the City and its residents and complies with
the public purposes and provisions of the Act and all other applicable federal, state and local
laws under which the USTC development has been undertaken and is being assisted; and
WHEREAS, the Commission and the City desire to facilitate development of the USTC in
accordance with the powers granted the Commission under the Act and the powers granted the
City under the Indiana Code by undertaking environmental investigation and remediation and the
financing thereof subject to the conditions contained herein; and
WHEREAS, the Parties agree that it is of mutual benefit for the Parties to enter into this
Agreement relating to the USTC;
NOW, THEREFORE, in consideration of the mutual promises and obligations in this
Agreement, the adequacy of which consideration is hereby acknowledged, the Parties agree as
follows:
ARTICLE 1
PROJECT DEFINITION
1.1 Project. The term "Project" when used in this Agreement is defined as the total
development of the USTC in the Renaissance District to be performed as described in this
Agreement. The term "Ivy Tower Project- when used in this Agreement is defined as that part
of the Project that is related to the development of the Ivy Tower Building, as described in this
Agreement.
1.2 Commission. The terms "Commission" and "City" are used interchangeably in this
Agreement and are intended to be inclusive of each other unless otherwise specified.
ARTICLE 2
UNION STATION'S OBLIGATIONS
21 Ivy Tower Purchase. Union Station will take all reasonable steps to close on the
purchase of the Ivy Tower Building to facilitate the USTC, as well as to provide an opportunity
for other businesses to expand and relocate within the Ivy Tower Building, including but not
limited to providing the Commission with a business plan (the `'Business Plan ") which shows the
cooperative reuse of multiple businesses within the Ivy Tower Building, as well as providing
reasonable space within the Ivy Tower Building for use by the Commission and other public
agencies.
2.2 Union Station Investments. Union Station will invest in the Renaissance District no
less than $10,000,000 in capital improvements in the 10 year period beginning from the effective
date of the MOU 11. Union Station will invest at least $1,000,000 of this amount in the first year
and $5,000.000 in the first five years. Union Station will provide the Commission with proof of
compliance with this commitment on at least an annual basis.
2.3 Employment of Local Labor. Union Station agrees to use local labor at all phases of
development whenever reasonably possible. To that end, Union Station agrees to provide notice
to local contractors of all requests for bids, of pre -bid meetings and of related meetings and
information with respect to the Project so as to use commercially reasonable efforts to employ
qualified local contractors and other related local labor during construction of the Project. This
provision is not intended to, and will not, compromise Union Station's ability to hire the most
efficient and cost - effective labor, consistent with this Agreement.
2.4 'timeline. Union Station will provide the Commission with a plan of action for the
Project, including but not limited to construction and improvement tasks that will be completed
as part of the Project and an estimated timeline for their completion.
15 Nature of Improvements. The construction of improvements to the Ivy Tower Building
shall be substantially of the same size, scope and nature as specified in the plans required in
Section 2.4 of this Agreement.
2,6 Costs and Expenses. Union Station hereby agrees to pay, or cause to be paid, all costs
and expenses related to the Project, exclusive of the limited costs for Improvements which shall
be paid for by the City as specifically described in Article 3 of this Agreement.
2.7 Progress Reports. Union Station will provide the Commission staff with biannual
reports concerning the progress of each of Union Station's Obligations under this Agreement,
including but not limited to work completed, costs incurred, work remaining, and expected
timeline for the Project's completion. The Commission staff will provide biannual reports to
Union Station concerning the progress of the Commission's Obligations under this Agreement,
which reporting shall continue until the Commission's Obligations have been satisfied.
2.8 Insurance. Union Station will purchase and maintain Comprehensive General Liability
Insurance as is appropriate for the work being performed with respect to the Project. The City
and the Commission shall be named as additional insureds on the policy or policies, to the extent
reasonably obtainable.
ARTICLE 3
COMMISSION'S OBLIGATIONS
3.1 Environmental Remediation, The Commission will obtain a Phase I & 11
Environmental Survey of the Ivy Tower Building.
3.2 Environmental Indemnification Agreement. The Environmental Indemnification
Agreement attached hereto as Exhibit A is expressly made a part of this Agreement and
constitutes a material provision hereof.
3.3 Commission's Building Investment. Upon the closing of the Ivy Tower Building
purchase by Union Station and approval by the Commission of Union Station's plan of action, as
outlined in Section 2.5 of this Agreement, the Commission will provide 53,500,000.00 of
improvements to structurally stabilize and enhance the building to allow for its reuse (the
"Improvements'),
3.4 Collaboration. The Commission agrees to work with Union Station or its affiliate to
plan Ivy Tower Building improvements in order to best adapt the Ivy Tower Building as a
collaborative multi -tenant facility to revitalize the Renaissance District. This provision is not
intended to, and will not, prevent Union Station from implementing planned improvements in the
most efficient and cost - effective manner, consistent with this Agreement.
rd
ARTICLE 4
DEFAULT
4.1 Mediation. The parties agree that all claims, disputes. or controversies arising out of or
relating to this Agreement or the breach thereof will be submitted to non - binding mediation prior
to the filing of any lawsuit in a court of law. Any and all such claims, disputes, or controversies
will be referred to an independent mediator agreed upon by the Parties within ten (10) days of
the written notice of the claim, dispute, or controversy. If the Parties cannot agree on a mediator,
or if the claim, dispute, or controversy is not resolved within sixty (60) days of its referral to the
mediator, the Parties will be free to commence legal process.
4.2 Notice and Opportunity to Cure. Before commencing legal process in the event of any
Party's failure to perform or observe any of the covenants, terms or conditions in this
Agreement, the non - defaulting Party must provide written notice to the defaulting Party of the
obligation(s) breached. Notice may be served by (1) sending a copy of the notice by registered
or certified mail or other public means by which a written acknowledgement of receipt may be
requested and obtained with return receipt requested and returned showing receipt of the letter;
or (2) by hand delivering a copy of the notice personally. The addresses to which notice may be
delivered are:
Union Station:
Union Station Properties, LP
Attn: Kevin M, Smith
6561 Lonewolf Drive, Suite 100
South Bend, Indiana 46628
Commission:
South Bend Redevelopment Commission
Attn: Don Inks
227 West Jefferson Boulevard
12th Floor, County -City Building
South Bend, IN 46601
The address for notices may be changed by either Party by giving proper notice under this
paragraph. The defaulting Party will have a maximum of thirty days from the date of receipt of
the notice to cure the default(s) or, in the alternative, to reach agreement with all parties on a plan
to cure the default.
4.3 Waiver. A Party's failure to enforce any of its rights or remedies in the event of another
party's breach of any of the covenants, terms or conditions of this Agreement shall not be
deemed a waiver of those rights or remedies, nor shall its failure bar or abridge any of its rights
or remedies upon any subsequent default.
4.4 Venue. The parties agree that this Agreement will be interpreted according to the laws of
the State of Indiana and the venue for any action related to this Agreement shall be in the St.
Joseph County, Indiana courts.
4.5 Attorney Fees and Costs. In the event of any Party s failure to perform or observe any
of the covenants, terms or conditions in this Agreement, the defaulting Party shall pay the other
Parties' allorney fees, costs and expenses, including expenses of preparing any notice of
delinquency or request for performance, whether or not any legal action is instituted, including
by reason of enforcing the non - defaulting Parties' rights hereunder.
4.6 Cooperation. In the event of any administrative, legal or equitable action or other
proceeding instituted by any person not a party to this Agreement challenging the validity of any
provision of this Agreement, the Parties shall cooperate in defending such action or proceeding
to settlement or final judgment including all appeals. Each Party shall select its own legal
counsel and retain such counsel at its own expense, and in no event shall the Commission or the
City be required to bear the fees and costs of Union Station's attorneys nor shall Union Station
be required to bear the fees and costs of the Commission's or the City's attomeys. The Parties
agree that this subsection shall constitute a separate agreement entered into concurrently with
this Agreement, and that if any other provision of this Agreement, or this Agreement as a whole,
is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to
be bound by the terms of this subsection.
4.7 Enforced Delay in Performance for Causes Beyond Control of Party. For the
purposes of any of the provisions of the Agreement, neither the Commission nor Union Station,
as the case may be, nor any successors in interest, shall be considered in breach of or in default
of its obligations with respect to the preparation of the Property for the Project, or the beginning
and completion of construction, or progress in respect thereto, in the event of enforced delay in
the performance of such obligations due to unforeseeable causes beyond its control and without
its fault or negligence. These include, but are not limited to, acts of God, acts of the public
enemy, acts of the federal or state government, acts of the other party, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes, and unusually severe weather, or delays of
subcontractors due to such causes. The purpose and intent of this provision is that in the event of
the occurrence of any such enforced delay, the time or times for performance of the obligations
of the Commission with respect to the preparation of the Property for development or of Union
Station with respect to construction of the Project as the case may be, shall be extended for the
period of the enforced delays as determined by the Commission. The party seeking the benefit of
the provisions of this paragraph shall use best efforts to, within ten (10) days after the beginning
of the enforced delay, have first notified the other parry thereof in writing and of the cause or
causes thereof, and shall have requested an extension for the period of the enforced delay.
ARTICLE 5
REMEDIES
5.1 Personal Guarantee. If Union Station fails to make $3,500,000.00 in capital
improvements in the Renaissance District in the first five years of this Agreement, Kevin M.
Smith will be personally liable for the difference between $3,500,000.00 and the amount Union
Station actually invested in improvements during the five year period. The Commission may
enforce this guarantee without prejudice to the Commission's rights to enforce the Agreement
against Union Station. The Parties agree that this subsection shall constitute a separate
agreement entered into concurrently with this Agreement, and that if any other provision of this
Agreement, or this Agreement as a whole, is invalidated, rendered null, or set aside by a court of
competent jurisdiction, the Parties agree to be bound by the terms of this subsection.
ARTICLE 6
MISCELLANEOUS
6.1 Effective Date. This Agreement shall be effective as of the date first written above (the
"Effective Date "). The term of this Agreement shall commence upon the Effective Date and will
not terminate before the later of (a) ten years, or (b) the date the parties' respective obligations
specifically enumerated in this Agreement have been fulfilled in their entirety.
6.2 Interpretation.
(a) The terms "herein ", "hereto ", "hereunder" and all terms of similar import shalt be
deemed to refer to this Agreement as a whole rather than to any Article, Section or Exhibit to this
Agreement.
(b) The terms "include', "including" and "such as" shall each be construed as if
followed by the phrase "without being limited to."
(c) Unless otherwise specified, references to this "Agreement' shall mean this
Agreement and any exhibits and attachments hereto.
(d) Captions used for or in Sections, Articles and Exhibits of this Agreement are
expressly not made part of the contract between the parties and shall not affect the construction
of the Agreement.
6.3 Recitals. The Recitals set forth above are a part of this Agreement for all purposes.
6.4 Indemnity.
(a) Union Station hereby indemnifies and holds harmless the Commission and its
employees, agents, and representatives from and against any and all claims, demands, suits, and
damages arising out of the negligent or intentional acts or omissions of Union Station while
performing its obligations under this Agreement.
(b) The Commission hereby indemnifies and holds harmless Union Station and its
employees, agents, and representatives from and against any and all claims, demands, suits, and
damages arising out of the negligent or intentional acts or omissions of the Commission while
performing its obligations under this Agreement,
6.5 Severability. If any provision of this Agreement is held as a matter of law to be
unenforceable, the remainder of this Agreement shall be enforceable without such provision.
6.6 Amendment, This Agreement constitutes the entire Agreement between the Parties and
may not be modified except in writing, signed by all Parties. Any prior understanding or
representation of any kind preceding the date of this Agreement shall not be binding on either
Party except to the extent incorporated in this Agreement.
6.7 Assignment. This Agreement will bind all parties, their respective successors, assigns,
and personal and legal representatives. No party may assign or transfer its interest in or
obligations under this Agreement without the written consent of all other parties, which consent
will not be unreasonably withheld. Nothing in this provision will prevent Union Station from
employing such consultants, associates or subcontractors as Union Station may deem appropriate
to assist in performance of Union Station's duties hereunder.
6.8 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon any person, firm, or corporation other than the
parties hereto and their respective successors or assigns, any remedy or claim under or by reason
of this Agreement or any term, covenant, or condition hereof, as third -party beneficiaries or
otherwise, and all of the terms, covenants, and conditions hereof shall be for the sole and
exclusive benefit of the Parties herein.
6.9 Conflict of Interest: Commission Representatives Not Individually Liable. No
member, official, or employee of the Commission shall have any personal interest, direct or
indirect, in the Agreement, nor shall any such member, official, or employee participate in any
decision relating to the Agreement which affects his personal interests or the interests of any
corporation, partnership, or association in which he /she is, directly or indirectly, interested. No
member, official, or employee of the Commission shall be personally liable to Union Station, or
any successor in interest, in the event of any default or breach by the Commission or for any
amount which may become due to Union Station or successor or assign or on any obligations
under the terms of the Agreement.
6.10 Authority. The undersigned persons executing and delivering this Agreement on behalf
of each Party represent and certify they are duly authorized with authority to execute this
Agreement; they have the full legal Tight, power and authority to enter into this Agreement and
to grant the rights and perform the obligations contained herein; to the extent any third party
consent or approval is required to grant such rights or perform such obligations hereunder those
third party consents or approvals will be obtained, but each Party may rely on this Agreement as
a valid and binding obligation, enforceable in accordance with its terms.
6.11 Good faith. 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.
6.12 Facsimile Signatures. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall constitute one and the
same instrument. Any telecopied version of a manually executed original shall be deemed a
manually executed original.
IN WITNESS WHEREOF, the Parties hereby execute this Agreement on the date first written
above.
SOUTH BEND
REDEVELOPMENT COMMISSION:
By:
President Marcia 1. Jones
Attest:
UNION STATION PROPERTIES, LP
Kevin M. Smith
General Partner
Kevin M. Smith, Individually
With regard to Section 5.1
CCs)
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ( "Agreement') is made as of the Effective Date,
and is among the City of South Bend by and through its Redevelopment Commission and
Board of Public Works ( "City') and Ivy Tower Corporation ( "Seller ") and Seller's
subsidiaries, divisions, shareholders, members, officers, directors, attorneys, agents,
employees, spouses, relatives, heirs, successors and assigns, and any of their respective
affiliates, past, present and future (collectively "Ivy Tower') (the City and Ivy Tower are
collectively, "the Parties' or individually a "Party "):
RECITALS
WHEREAS, Seller currently owns property commonly known as 635 South
Lafayette, 600 United Drive, and a vacant lot on Prairie Avenue, situated in the City of
South Bend, Indiana (the "Property ");
WHEREAS, the Property is adjacent to property owned by Union Station
Properties, LP ( "Union Station "), and Union Station has informed the City that it desires
to expand its operations onto the Property;
WHEREAS, Kevin M. Smith ( "Buyer ") is the general partner of Union Station;
WHEREAS, (i) on December 7, 2011, Buyer made an offer to the Seller to
purchase the Property pursuant to a proposed Purchase Agreement Commercial - Industrial
Real Estate (the "Offer "); (ii) the Seller accepted by the Offer on December 18, 2011
subject to Counteroffer #2 Commercial - Industrial Real Estate (Counteroffer #2 "); and
(iii) the Buyer accepted Counteroffer 42 on December 18, 2011 (the Offer, as amended
by Counteroffer #2, is referred to as the "Original Purchase Agreement ");
WHEREAS, the Original Purchase Agreement was amended by that certain First
Amendment to Purchase Agreement Dated December 18, 2011 ( "First Amendment ")
between Buyer and Seller, effective July 27, 2012 (the Original Purchase Agreement, as
amended by the First Amendment, is referred to as the "Purchase Agreement "):
WHEREAS, it is a condition of the Seller to the Closing (as defined in the
Purchase Agreement) that the City investigate and remediate Environmental Conditions
(as defined herein below) at the Property, at the City's sole cost and expense;
WHEREAS, the City has agreed to assist Union Station with its expansion of
operations onto the Property in the City and in furtherance thereof and to induce Seller to
convey the Property to Buyer the City has agreed to perform an environmental
investigation and remediation of the Property of existing Environmental Conditions at the
Property to meet the Indiana Department of Environmental Management requirements for
no further action for an industrial property;
WHEREAS, the City may seek to recover its costs for the environmental
remediation of the Property from insurers or other third parties; and
WHEREAS, to induce Seller to convey the Property to Buyer, Seller desires that
the City execute this Agreement which includes, among other provisions, a release of
claims relating to existing Environmental Conditions at the Property and indemnification
from the City against any claims or suits that might be made or filed against Ivy Tower
by any Person in the event that the City should seek to recover its costs for the
environmental remediation of the Property from any Person;
NOW, THEREFORE, in consideration of, and in reliance on the agreements and
mutual covenants and accords contained herein, the City and Ivy Tower agree as follows:
The following definitions will apply to the listed terms wherever those terms
appear throughout this Agreement. Moreover, each defined term stated in a singular
form shall include the plural form, each defined term stated in plural form shall include
the singular form, and each defined term stated in the masculine form or in the feminine
form shall include the other:
"Agreement" means this Indemnification Agreement.
2. "Effective Dale" means the date on which the Property is sold by Seller to
Buyer or Buyer's permitted assigns.
3. The "City of South Bend" or "City" means the municipality of South
Bend, Indiana, the South Bend Redevelopment Commission, the South Bend Board of
Public Works, and their corporate officers, agents and employees in their official
capacities, only, and not in their personal capacities.
4. "Claim" means all claims, third party claims, causes of action, lawsuits,
cross - claims, counterclaims, obligations, liabilities, rights, demands (including letter -
demands, notices, or inquiries from any Person or government agency), penalties,
assessments, losses, damages, requests, suits, lawsuits, costs (including attorneys' fees
and expenses), interest of any kind, actions, administrative proceedings, criminal
proceedings, or orders, of whatever nature, character, type, or description, whenever and
however occurring, whether at law or in equity, and whether sounding in tort or contract,
or any statutory, regulatory or common law claim or remedy of any type, arising directly
or indirectly, in whole or in part, from any action that the City may take against a Person
to recover the City's costs for the investigation or remediation of the Property or to
compel or enjoin a Person to investigate or remediate the Property.
5. "Environmental Conditions" means the actual, alleged, or threatened
discharge, dispersal, release, escape, migration, seepage or abandonment of any solid,
liquid, gaseous or thermal irritant or contaminant, including but not limited to, Hazardous
Substances as defined below, vapors, soot, fumes, acids, alkalis, toxic chemicals, waste
materials, including medical infectious and pathological waste, low -level radioactive
waste and material, microbial matter at, on or under the Property or the land or structures
thereupon, the atmosphere or any watercourse, body of water or groundwater.
6. "Hazardous Substance" means, without limitation, any substance,
chemical, material or waste, whether solid, liquid, gaseous or thermal, (i) the presence of
which causes a nuisance or trespass of any kind; (ii) which is regulated by any federal,
state or local governmental entity because of its toxic, flammable, corrosive, reactive,
carcinogenic, mutagenic, infectious, radioactive, or other hazardous property or because
of its effect on the environment, natural resources or human health and safety, including,
but not limited to, petroleum and petroleum products, polychlorinated biphenyls,
trichloroethylene, trichlorcethane and other chlorinated industrial solvents, and volatile
organic compounds; or (iii) which is designated, classified, or regulated as being a
hazardous or toxic substance, material, pollutant, waste (or a similar such designation)
under any federal, state or local law, regulation or ordinance, including under any
Environmental Law such as the Comprehensive Environmental Response Compensation
and Liability Act (42 U.S.C. §9601 et sue.), the Emergency Planning and Community
Right- to-Know Act (42 U.S.C. § l 1001 et seg.), the Hazardous Substances Transportation
Act (49 U.S.C. § 1801 et seM.), or the Clean Air Act (42 U.S.C. §7401 et sue.), or Indiana
Environmental Legal Action statute (I.C. §13 -30 -9, et. M.).
7. "Environmental Laws' shall mean, as amended and as now in effect, all
federal, state, local, and foreign statutes, regulations, ordinances, and other provisions
having the force or effect of law, all judicial and administrative orders and
determinations, all contractual obligations, and all common law concerning public health
and safety, worker health and safety, pollution, or protection of the environment,
including, without limitation, all those relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal, distribution, labeling,
testing, processing, discharge, release, threatened release, control, or cleanup of any
hazardous materials, substances, or wastes, chemical substances or mixtures, pesticides,
pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise, or radiation.
&. "Party" or "Parties" means the signatories to this Agreement and those for
whom such Parties are authorized to sign with respect to this Agreement;
9. "Person' means and includes a natural person, a group of natural persons
acting as individuals, a group of natural individuals acting in collegial capacity (e.g., as a
committee, board of directors, etc.), a corporation, including but not limited to insurance
companies, partnership, limited liability company or partnership, joint venture, trust or
any other unincorporated association, business organization or enterprise, any
government entity and any successor in interest, heir executor, administrator, trustee,
trustee in bankruptcy, or receiver of any Person or entity.
B. AGREEMENT
1. The City shall indemnify, defend and hold Ivy Tower harmless against any
and all Claims by any Person against Ivy Tower.
2. The City covenants not to sue, and hereby releases, Ivy Tower from any
claims relating to or arising out of Environmental Conditions at the Property, including
but not limited to recovery of, contribution toward, or reimbursement of any costs, fees or
expenses incurred by or on behalf of the City to investigate and/or remediate all
Environmental Conditions at the Property, except as may be necessary to assert, and
solely for the purpose of asserting, a claim against Ivy Tower's insurance policies. In any
such case, the City shall not seek to recover from Ivy Tower any portion of a) any
J udgment against Ivy Tower or b) any judgment against any of the Ivy Tower carriers,
and the City explicitly waives any right to do so.
3. Based solely on the actual knowledge of the current officers of the Seller,
Abraham Marcus and Tela Schulman- Hektor, Seller represents and warrants that it has
not intentionally taken any affirmative actions in connection with the Property that
materially violated applicable Environmental Laws.
4. The City will provide to Ivy Tower contemporaneous written notice of any
action that it takes against any Person to recover the City's costs for the remediation of
the Property.
5. Ivy Tower will provide to the City written notice of any Claim to which it
believes that this Agreement might apply as soon as practicable after receiving such
Claim. Such written notice will be directed to the Mayor of the City and the City's
Attorney.
6. In the event that Ivy Tower provides written notice to the City of any
Claim to which it thinks this Agreement applies, the City shall respond to Ivy Tower
within 10 days, accepting or denying the defense and indemnity of the Claim.
7. In the event that a Claim is made or filed against Ivy Tower to which this
Agreement applies, the City will first seek to substitute itself for Ivy Tower in any
proceeding arising from, or attendant to, the Claim.
8. In the event that a Claim is made or filed against Ivy Tower to which this
Agreement applies, the City will be responsible for the payment of all reasonable fees,
costs, and expenses incurred in defense of such Claim.
9. In the event that a Claim is made or filed against Ivy Tower to which this
Agreement applies, the City will indemnify, defend and hold Ivy Tower harmless against
any judgment that may be entered against Ivy Tower or any settlement that may
otherwise be required to resolve such Claim.
10. In the event that a Claim is made or filed against Ivy Tower to which this
Agreement applies, Ivy Tower will cooperate with the City, in good faith, in the conduct
of any proceedings in response to such Claim.
11. in the event that a Claim is made or filed against Ivy Tower to which this
Agreement applies, the City will have exclusive control over the selection of counsel for
the defense of Ivy Tower, and exclusive control over strategic decisions affecting the
defense or settlement of such Claim. Accordingly, Ivy Tower will not stipulate to
judgment or enter into a settlement of such Claim without the prior written approval of
the City, nor will Ivy Tower take any action in response to such Claim that might result in
increasing or exacerbating the liability for which the City has agreed to indemnify under
this Agreement.
12. In the event that the City fails to promptly undertake the defense following
receipt of notice of any such claim or action, then Ivy Tower may retain counsel of its
choice to defend such a Claim, and the City will promptly reimburse Ivy Tower for all
reasonable attorney's fees, costs and expenses (including expert witness and consultant
fees incurred in the defense of such claim or action). In the event Ivy Tower undertakes
the defense of a Claim as provided herein, the City shall thereafter retain the right to
assume such defense at any time, with legal counsel of its choosing.
13. In the event that a Claim is made or filed against Ivy Tower to which this
Agreement applies, the City will retain the right to settle any such Claim or to withdraw
the City's action against the Person. which action resulted in the Claim being filed
against Ivy Tower.
14. In consideration for the indemnification and defense provided under this
Agreement, Seller agrees to provide the City, with reasonable access to any and all
insurance policies or information concerning such policies in its possession or control
that Seller may have or own, or may have ever had or owned, that might respond to
environmental liability Claims at the Property (collectively, the "Insurance Policies`),
including but not limited to: any third -party liability or first -party property damage
policies of any kind ever issued to Seller, its subsidiaries, divisions, shareholders,
members, officers, directors, attorneys, agents, employees, spouses, relatives, heirs,
successors and assigns, and any of their respective affiliates, past, present and future, that
in any way relate to Seller; any evidence or information in the possession or control of
Seller concerning the payment of premiums on such policies; any evidence or
information in the possession or control of Seller concerning any broker or agent through
which such policies may have been obtained. In this regard, within 5 business days after
the execution of this Agreement, or such other time as Seller and the City may agree,
representatives of the City will meet with representatives of Seller, at Seller's office in
South Bend, to review the Insurance Policies. Ivy Tower also agrees that where
necessary, and as the City may decide. that Seller will assign to the City Seller's right to
bring environmental liability property claims under the Insurance Policies to the extent
permitted by law and allowed by the policies. Ivy Tower will cooperate with the City, in
good faith, in the conduct of any action that the City may take against such insurers.
5
15. Before commencing legal process in the event of any Party's failure to
perform or observe any of the covenants, terms or conditions in this Agreement, the non-
defaulting Party must provide written notice to the defaulting Party of the obligation(s)
breached. The defaulting Party will have a maximum of thirty days from the date of
service of the notice to cure the default(s) or, in the alternative, to reach agreement with
all Parties on a plan to cure the default ( "Cure Period "). If the default is not cured or if an
agreement on a plan to cure the default is not reached within the Cure Period, the dispute
concerning the alleged default will be referred to an independent mediator agreed upon
by the Parties within ten (10) days of the written notice of default. If the Parties cannot
agree on a mediator, of if the dispute is not resolved within sixty (60) days of its referral
to the mediator, the Parties will be free to commence legal process.
16. Notice may be served by (1) sending a copy of the notice by registered or
certified mail or other public means by which a written acknowledgement of receipt may
be requested and obtained with return receipt requested and returned showing receipt of
the letter; or (2) by hand delivering a copy of the notice personally. The addresses to
which notice may be delivered are:
Ivy Tower:
Abraham Marcus, President
Ivy Tower Corporation
P.O. Box 4343
South Bend, IN 46634
The City:
South Bend Redevelopment Commission
Attn: Don Inks
227 West Jefferson Boulevard
12th Floor, County -City Building
South Bend, IN 46601
The address for notices may be changed by either Party by giving proper notice under
this paragraph.
17. Ivy Tower and the City agree that any recovery in any action that the City
may pursue in an effort to recover the cost of remediating the Property shall belong solely
to the City, and that Ivy Tower will have, and make, no claim thereupon.
18. All provisions of this Agreement shall become effective on the Effective
Date,
19. This Agreement supersedes all prior communications between the City
and Ivy Tower concerning the matters contained herein. This Agreement is an integrated
agreement and contains the entire agreement regarding the matters contained herein. No
amendments or variations of the terms of this Agreement shall be made without the
express written consent of Ivy Tower and the City. This Agreement is the product of an
arms - length negotiation between counsel for the City and counsel for Ivy Tower, and
there shall be no presumption or construction against either the City or Ivy Tower arising
from the drafting of the Agreement.
20. Subject to the provisions herein, the City's obligations herein are absolute
and shall remain in force even if Buyer, Union Station (including its subsidiaries,
divisions, shareholders, members, officers, directors, attorneys, agents, employees,
spouses, relatives, heirs, successors and assigns, and any of their respective affiliates) or
others breach or otherwise violate any agreements they enter into with the City relating to
the Property.
21. This Agreement will be construed in accordance with the laws of the State
of Indiana.
21 The Agreement may be executed by the Parties hereto in separate
counterparts, each one of which shall be deemed as original, but all such counterparts
collectively shall constitute one and the same instrument. Ivy Tower and The City each
represent that the person executing this Agreement is duly authorized and empowered to
enter into this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and
delivered as follows:
CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORK
Gary A. Gilot, President Michael Mecham, Member
Donald E. Inks, Member Mark Neal, Member
Kathryn Roos, Member Linda M. Martin, Clerk
SOUTH BEND REDEVELOPMENT
COMMISSION
By:
President
ATTEST:
Secretary
IVY TOWER CORPORATION
By:
Abraham Marcus, President