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HomeMy WebLinkAboutRDC Packet 11.8.21South Bend Redevelopment Commission 227 West Jefferson Boulevard, Room 1308, South Bend, Indiana Agenda Regular Meeting, November 8, 2021 – 9:30 a.m. http://tiny.cc/RDC110821 1.Roll Call 2.Approval of Minutes A.Minutes of the Regular Meeting of Thursday, October 28, 2021 3.Approval of Claims A.Claims Allowance Request 11.03.21 B.Claims Allowance Request 0x 4.Old Business A.Real Estate Purchase Agreement (5 Corners) 5.New Business A.River West Development Area 1.Resolution No. 3538 (Lease Rental Revenue Bonds of 2022 Morris Performing Arts Center Project) i.Lease RDA 2022 (Bonds Morris Performing Arts Center Project) 2.Resolution No. 3539 (Lease Rental Revenue Bonds of 2022 Potawatomi Zoo Project) i.Lease SBBC 2022 (Bonds Potawatomi Zoo Project) B.River East Development Area 1.Budget Request (Mishawaka Avenue Survey) 6.Progress Reports A.Tax Abatement B.Common Council C.Other 7.Next Commission Meeting: Monday, November 22, 2021, 9:30 am 8.Adjournment ITEM: 1 South Be n d. Redevelopment Commission 227 West Jefferson Boulevard, Room 1308, South Bend, IN 46601 SOUTH BEND REDEVELOPMENT COMMISSION REGULAR MEETING October 28, 2021 9:30 a.m. https://tiny:cc/RDC102721 Presiding: Marcia Jones, President South Bend, Indiana The meeting was called to order at 9:30 a.m. 1.ROLL CALL Members Present: Marcia Jones, President Don Inks, Vice-President Troy Warner, Secretary Eli Wax, Commissioner Vivian Sallie, Commissioner Leslie Wesley, Commissioner Members Absent: Legal Counsel: Sandra Kennedy, Esq. Redevelopment Staff: Mary Brazinsky, Board Secretary Others Present: Santiago Garces Angelina Billo Tim Corcoran Amanda Pietsch Amy Paul Zach Hurst Charlotte Brach Jordan Gathers Sharon McBride Conrad Damian Daniel Buckenmeyer DCI DCI DCI DCI DCI Engineering Engineering Mayor’s Office Common Council Resident SB/Elkhart Reg. Partnership ITEM: 2A South Bend Redevelopment Commission Regular Meeting – October 28, 2021 2.Approval of Minutes •Approval of Minutes of the Regular Meeting of Thursday, October 14, 2021 Upon a motion by Commissioner Sallie, seconded by Vice-President Inks, the motion carried unanimously, the Commission approved the minutes of the regular meeting of Thursday, October 14, 2021. 3.Approval of Claims •Claims Submitted for October 14, October 19, and October 26, 2021 Upon a motion by Vice-President Inks, seconded by Secretary Warner, the motion carried unanimously, the Commission approved the claims for October 14, October 19, and October 26, 2021, submitted on Thursday, May 27, 2021. 4.Old Business 5.New Business A.River West Development Area 1.Temporary Use Agreement (Greater New Jerusalem Missionary Baptist Church) Mr. Corcoran Presented Temporary Use Agreement (Greater New Jerusalem Missionary Baptist Church). This agreement provides temporary access to the old Fat Daddies property during a free public event, occurring on November 6, 2021, during which the licensee will be handing out free food to any interested participants. Commission approval is requested. Upon a motion by Vice-President Inks, seconded by Commissioner Sallie, the motion carried unanimously, the Commission approved Temporary Use Agreement (Greater New Jerusalem Missionary Baptist Church submitted on Thursday, October 28, 2021. B.Other 1.2022 TIF Overview Mr. Garces presented the 2022 TIF Overview PowerPoint Presentation. Please note this presentation is on the city website. River West has the largest revenue for 2022 with River East, South Side, Douglas Road, and West Washington following. Redevelopment funds are expected to be approximately $30.6M. Debt service is $14.1M leaving $16.5M of 2022 funds. Major projects are South Bend Parks and Trails (Seitz, LaSalle, new South Side Parks and Trails). Fire Station #8, Neighborhood main street infrastructure, federal and state grant matches, and professional services (legal, engineering and TIF management). South Bend Redevelopment Commission Regular Meeting – October 28, 2021 Commissioner Wesley asked about the Dream Center and TIF funding. Mr. Garces responded that there is no need for funding through TIF as it is funded 100% through the American Rescue Plan. Secretary Warner states that the Council approved this project solely through American Rescue Plan. Commissioner Wesley asked if we could use TIF funding for the project. Mr. Garces stated that since it is 100% funded through the American Rescue Plan that there is no need for TIF funding, however, if needed that it may have been given TIF funding. President Jones asked about debt service for the last 10 years as it looks like it is half it has been. Can an update be provided? Mr. Garces states he will gather information and get back to her. Commissioner Sallie thanked Mr. Garces for meeting with her and providing updates regarding the redevelopment commission and their project. President Jones stated that it is great having an effective team. Upon a motion by Commissioner Warner, seconded by Commissioner Sallie, the motion carried unanimously, the Commission the 2022 TIF Overview and Debt/Personal Services submitted on Thursday, October 28, 2021. 6.Progress Reports A.Tax Abatement B.Common Council C.Other 1.Mr. Garces provided additional information. There are 17 or 18 regions proposals that were sent to the state. We have been working closely with South Bend/Regional Partnership on the proposals and we will hopefully hear back by the end of the year or the beginning of next year. 7.Next Commission Meeting: Monday, November 8, 2021, 9:30 a.m. 8.Adjournment Thursday, October 28, 2021, 10:02 a.m. Troy Warner, Secretary Marcia Jones, President City of South Bend Department of Administration & Finance Claims Allowance Request To:South Bend Redevelopment Commission From:Daniel Parker, City Controller Date:Wednesday, November 3, 2021 Pursuant to Indiana Code 36-4-8-7, I have audited and certified the attached claims and submit them for allowance in the following amounts: GBLN-0025678 $518,573.75 GBLN-0000000 $0.00 GBLN-0000000 $0.00 Total:$518,573.75 _______________________________ Daniel Parker, City Controller The attached claims described above were allowed in the following total amount at a public meeting on the date stated below:518,573.75$ By:_______________________________ South Bend Redevelopment Commission Name: Date: ITEM: 3A ______________________________________________________________ Name:Name: _______________________________ Name:_______________________________ Name: _______________________________ Name: REAL ESTATE PURCHASE AGREEMENT This Real Estate Purchase Agreement (this “Agreement”) is made on ___________, 2021 (the “Contract Date”), by and between the City of South Bend, Indiana, Department of Redevelopment, acting by and through its governing body, the South Bend Redevelopment Commission (“Seller”) and Five Corners, LLC., an Indiana limited partnership with its registered office at 814 Marietta St., South Bend, IN 46601 (“Buyer”) (each a “Party” and together the “Parties”). RECITALS A.Seller exists and operates pursuant to the Redevelopment of Cities and Towns Act of 1953, as amended, being Ind. Code 36-7-14 (the “Act”). B.In furtherance of its purposes under the Act, Seller owns certain real property located in South Bend, Indiana (the “City”), and more particularly described in attached Exhibit A (the “Property”). C. Pursuant to the Act, Seller adopted its Resolution No. 3537 on September 9, 2021, whereby Seller established an offering price of Sixteen Thousand Eight Hundred Fifty Dollars ($16,850.00) for the Property. D.Pursuant to the Act, on September 9, 2021, Seller authorized the publication, on September 17, 2021, and September 24, 2021, respectively, of a notice of its intent to sell the Property and its desire to receive bids for said Property on or before October 14, 2021, at 9:00A.M. E.On October 14, 2021, at 9:00A.M., Seller received one bid for the Property, from the Buyer; Buyer’s bid was satisfactory to the Seller, and Seller now desires to sell the Property to Buyer on the terms stated in this Agreement. THEREFORE, in consideration of the mutual covenants and promises in this Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged, Buyer and Seller agree as follows: 1.OFFER AND ACCEPTANCE A copy of this Agreement, signed by Buyer, constitutes Buyer’s offer to purchase the Property on the terms stated in this Agreement and shall be delivered to Seller, in care of the following representative (“Seller’s Representative”): ITEM: 4A TO SELLER: Santiago Garces Executive Director Department of Community Investment City of South Bend 1400 S. County-City Building 227 W. Jefferson Blvd. South Bend, Indiana 46601 WITH COPY TO: South Bend Legal Department Attn: Corporation Counsel City of South Bend 1200 S. County-City Building 227 W. Jefferson Blvd. South Bend, Indiana 46601 This offer shall expire thirty (30) days after delivery unless accepted by Seller. To accept Buyer’s offer, Seller shall return a copy of this Agreement, counter-signed by Seller in accordance with applicable laws, to the following (“Buyer’s Representative”): TO BUYER: Five Corners, LLC. Attn. Anne Hayes, Member 814 Marietta St. South Bend, IN 46601 WITH COPY TO: ___________ ___________ ___________ ___________ ___________ 2.PURCHASE PRICE AND EARNEST MONEY DEPOSIT A.Purchase Price. The purchase price for the Property shall be Sixteen Thousand Eight Hundred Fifty Dollars ($16,850.00) (the “Purchase Price”), payable by Buyer to Seller in cash at the closing described in Section 10 below (the “Closing,” the date of which is the “Closing Date”). B.Earnest Money Deposit. Buyer submitted to Seller the sum of One Hundred Dollars ($100.00) with its bid, which Seller is holding as an earnest money deposit (the “Earnest Money Deposit”). Seller will dispose of the Earnest Money Deposit in accordance with the terms of this Agreement. The Earnest Money Deposit shall be credited against the Purchase Price at the Closing or, if no Closing occurs, refunded or forfeited as provided below. C.Termination During Due Diligence Period. If Buyer exercises its right to terminate this Agreement by written notice to Seller in accordance with Section 3 below, the Earnest Money Deposit shall be refunded to Buyer. If Buyer fails to exercise its right to terminate this Agreement by written notice to Seller within the Due Diligence Period, then the Earnest Money Deposit shall become non-refundable. D.Liquidated Damages. If Seller complies with its obligations hereunder and Buyer, not having terminated this Agreement during the Due Diligence Period in accordance with Section 3 below, fails to purchase the Property on or before the Closing Date, the Earnest Money Deposit shall be forfeited by Buyer and retained by Seller as liquidated damages in lieu of any other damages. 3.BUYER’S DUE DILIGENCE A.Investigation. Buyer and Seller have made and entered into this Agreement based on their mutual understanding that Buyer intends to incorporate the Property into a larger, blockwide, mixed use, walkable project that complies with the zoning ordinance and the goals and objectives of the Northeast Neighborhood Plan(the “Buyer’s Use”). Seller acknowledges that Buyer’s determination whether Buyer’s Use is feasible requires investigation into various matters (Buyer’s “Due Diligence”). Therefore, Buyer’s obligation to complete the purchase of the Property is conditioned upon the satisfactory completion, in Buyer’s discretion, of Buyer’s Due Diligence, including, without limitation, Buyer’s examination, at Buyer’s sole expense, of zoning and land use matters, environmental matters, real property title matters, and the like, as applicable. B.Due Diligence Period. Buyer shall have a period of sixty (60) days following the Contract Date to complete its examination of the Property in accordance with this Section 3 (the “Due Diligence Period”). C.Authorizations During Due Diligence Period. During the Due Diligence Period, Seller authorizes Buyer, upon Buyer providing Seller with evidence that Buyer has general liability insurance reasonably acceptable to Seller, in the amount of at least One Million Dollars ($1,000,000), naming Seller as an additional insured and covering the activities, acts, and omissions of Buyer and its representatives at the Property, to (i)enter upon the Property or to cause agents to enter upon the Property for purposes of examination; provided, that Buyer may not take any action upon the Property which reduces the value thereof and Buyer may not conduct any invasive testing at the Property without Seller’s express prior written consent; further provided, that if the transaction contemplated herein is not consummated, Buyer shall promptly restore the Property to its condition prior to entry, and agrees to defend, indemnify and hold Seller harmless, before and after the Closing Date whether or not a closing occurs and regardless of any cancellations or termination of this Agreement, from any liability to any third party, loss or expense incurred by Seller, including without limitation, reasonable attorney fees and costs arising from acts or omissions of Buyer or Buyer’s agents or representatives; and (ii)file any application with any federal, state, county, municipal or regional agency relating to the Property for the purpose of obtaining any approval necessary for Buyer’s anticipated use of the Property. If Seller’s written consent to or signature upon any such application is required by any such agency for consideration or acceptance of any such application, Buyer may request from Seller such consent or signature, which Seller shall not unreasonably withhold. Notwithstanding the foregoing, any zoning commitments or other commitments that would further restrict the future use or development of the Property, beyond the restrictions in place as a result of the current zoning of the Property, shall be subject to Seller’s prior review and written approval. D.Environmental Site Assessment. Buyer may, at Buyer’s sole expense, obtain a Phase I environmental site assessment of the Property pursuant to and limited by the authorizations stated in this Section 3. E.Termination of Agreement. If at any time within the Due Diligence Period Buyer determines, in its sole discretion, not to proceed with the purchase of the Property, Buyer may terminate this Agreement by written notice to Seller’s Representative, and Buyer shall be entitled to a full refund of the Earnest Money Deposit. 4. SELLER’S DOCUMENTS; ENVIRONMENTAL SITE ASSESSMENT Upon Buyer’s request, Seller will provide Buyer a copy of all known environmental inspection, engineering, title, and survey reports and documents in Seller’s possession relating to the Property. In the event the Closing does not occur, Buyer will immediately return all such reports and documents to Seller’s Representative with or without a written request by Seller. 5.PRESERVATION OF TITLE After the Contract Date, Seller shall not take any action or allow any action to be taken by others to cause the Property to become subject to any interests, liens, restrictions, easements, covenants, reservations, or other matters affecting Seller’s title (such matters are referred to as “Encumbrances”). Seller acknowledges that Buyer intends to obtain, at Buyer’s sole expense, and to rely upon a commitment for title insurance on the Property (the “Title Commitment”) and a survey of the Property (the “Survey”) identifying all Encumbrances as of the Contract Date. The Property shall be conveyed to Buyer free of any Encumbrances other than Permitted Encumbrances (as defined in Section 7 below). 6.TITLE COMMITMENT AND POLICY REQUIREMENTS Buyer shall obtain the Title Commitment for an owner’s policy of title insurance issued by a title company selected by Buyer and reasonably acceptable to Seller (the “Title Company”) within twenty (20) days after the Contract Date. The Title Commitment shall (i) agree to insure good, marketable, and indefeasible fee simple title to the Property (including public road access) in the name of the Buyer for the full amount of the Purchase Price upon delivery and recordation of a special warranty deed (the “Deed”) from the Seller to the Buyer, and (ii) provide for issuance of a final ALTA owner’s title insurance policy, with any endorsements requested by Buyer, subject to the Permitted Encumbrances. Regardless of whether this transaction closes, Buyer shall be responsible for all of the Title Company’s title search charges and all costs of the Title Commitment and owner’s policy. 7.REVIEW OF TITLE COMMITMENT AND SURVEY Within twenty (20) days after Buyer’s receipt of the Title Commitment, Buyer shall give Seller written notice of any objections to the Title Commitment. Within twenty (20) days after Buyer’s receipt of the Survey, Buyer shall give Seller written notice of any objections to the Survey. Any exceptions identified in the Title Commitment or Survey to which written notice of objection is not given within such period shall be a “Permitted Encumbrance.” If the Seller is unable or unwilling to correct the Buyer’s title and survey objections within the Due Diligence Period, Buyer may terminate this Agreement by written notice to Seller prior to expiration of the Due Diligence Period, in which case the Earnest Money Deposit shall be refunded to Buyer. If Buyer fails to so terminate this Agreement, then such objections shall constitute “Permitted Encumbrances” as of the expiration of the Due Diligence Period, and Buyer shall acquire the Property without any effect being given to such title and survey objections. 8.DISPUTE RESOLUTION A.Forum. Any action to enforce the terms or conditions of this Agreement or otherwise concerning a dispute under this Agreement will be commenced in the courts of St. Joseph County, Indiana, unless the Parties mutually agree to an alternative method of dispute resolution. B.Waiver of Jury Trial. Both Parties hereby waive any right to trial by jury with respect to any action or proceeding relating to this Agreement. 9.NOTICES All notices required or allowed by this Agreement, before or after Closing, shall be delivered in person or by certified mail, return receipt requested, postage prepaid, addressed to Seller in care of Seller’s Representative (with a copy to South Bend Legal Department, 1200 S. County-City Building, 227 W. Jefferson Blvd., South Bend, IN 46601, Attn: Corporation Counsel), or to Buyer in care of Buyer’s Representative at their respective addresses stated in Section 1 above. Either Party may, by written notice, modify its address or representative for future notices. 10.CLOSING A.Timing of Closing. Unless this Agreement is earlier terminated, the Closing shall be held at the office of the Title Company, and the Closing Date shall be a mutually agreeable date not later than sixty (60) days after the end of the Due Diligence Period. B.Closing Procedure. (i)At Closing, Buyer shall deliver the Purchase Price to Seller, conditioned on Seller’s delivery of the Deed, in the form attached hereto as Exhibit B, conveying the Property to Buyer, free and clear of all liens, encumbrances, title defects, and exceptions other than Permitted Encumbrances, and the Title Company’s delivery of the marked-up copy of the Title Commitment (or pro forma policy) to Buyer in accordance with Section 6 above. (ii)Possession of the Property shall be delivered to the Buyer at Closing, in the same condition as it existed on the Contract Date, ordinary wear and tear and casualty excepted. C.Closing Costs. Buyer shall pay all of the Title Company’s closing and/or document preparation fees and all recordation costs associated with the transaction contemplated in this Agreement. 11.BUYER’S POST-CLOSING DEVELOPMENT OBLIGATIONS A.Property Improvements; Proof of Investment. Within Thirty-Six (36) months after the Closing Date, the Buyer will expend an amount not less than One Million Dollars ($1,000,000.00) on improvements to the building and the site, as well as the cost of equipment, needed to redevelop the Property for the uses set forth herein (“Property Improvements”). Promptly upon completing the Property Improvements, Buyer will submit to Seller satisfactory records, as determined in Seller’s sole discretion, proving the above required expenditures and will permit Seller (or its designee) to inspect the Property to ensure that Buyer’s Property Improvements were completed satisfactorily. B.Post-Closing Buyer Commitments. The Buyer shall: (i)Complete construction of the project within 36 months of the Closing Date; (ii)Develop a mixed use, multi-level building; (v)Use design elements consistent with creating active urban mixed use development in a manner supporting the City's Northeast Neighborhood Plan; and (vi) Provide the design, plans, and specifications for Property Improvements consistent with City standards for the review and acceptance by the City's Planning Department, at its sole discretion. C.Certificate of Completion. Promptly after Buyer completes the Property Improvements and satisfactorily proves the same in accordance with the terms of Section 11.A. above, Seller will issue to Buyer a certificate acknowledging such completion and releasing Seller’s reversionary interest in the Property (the “Certificate of Completion”). The Parties agree to record the Certificate of Completion immediately upon issuance, and Buyer will pay the costs of recordation. D.Remedies Upon Default. In the event Buyer fails to complete the Property Improvements, or satisfactorily to prove such performance, in accordance with Section 11.A above, then, in addition to pursuing any other remedies available at law or in equity, Seller shall have the right to re-enter and take possession of the Property and to terminate and revest in Seller the estate conveyed to Buyer at Closing and all of Buyer’s rights and interests in the Property without offset or compensation for the value of any improvements made by Buyer. The Parties agree that Seller’s conveyance of the Property to Buyer at Closing will be made on the condition subsequent set forth in the foregoing sentence and the terms of this Section 11 will be referenced in the deed. Further, the Parties agree that Seller’s reversionary interest in the Property will be subordinate to the first-priority mortgage encumbering the Property, if any, arising out of Buyer’s contemporaneous financing of the redevelopment of the Property, provided that Buyer notifies Seller in advance of the execution or recording of such first-priority mortgage. 12.SELLER'S POST-CLOSING OBLIGATIONS On and after the Closing Date, the Seller shall work with the Buyer to finalize plans, designs, and specifications for Property Improvements to the satisfaction of the City departments, consistent with City standards. 13.ACCEPTANCE OF PROPERTY AS-IS Buyer agrees to purchase the Property “as-is, where-is” and without any representations or warranties by Seller as to the condition of the Property or its fitness for any particular use or purpose. Seller offers no such representation or warranty as to condition or fitness, and nothing in this Agreement will be construed to constitute such a representation or warranty as to condition or fitness. 14.TAXES Buyer, and Buyer’s successors and assigns, shall be liable for any and all real property taxes assessed and levied against the Property with respect to the year in which the Closing takes place and for all subsequent years. Seller shall have no liability for any real property taxes associated with the Property, and nothing in this Agreement shall be construed to require the proration or other apportionment of real property taxes resulting in Seller’s liability therefor. 15.REMEDIES Upon any default in or breach of this Agreement by either Party, the defaulting Party will proceed immediately to cure or remedy such default within thirty (30) days after receipt of written notice of such default or breach from the non-defaulting Party, or, if the nature of the default or breach is such that it cannot be cured within thirty (30) days, the defaulting Party will diligently pursue and prosecute to completion an appropriate cure within a reasonable time. In the event of a default or breach that remains uncured for longer than the period stated in the foregoing sentence, the non- defaulting Party may terminate this Agreement, commence legal proceedings, including an action for specific performance, or pursue any other remedy available at law or in equity. All the Parties’ respective rights and remedies concerning this Agreement and the Property are cumulative. 16.COMMISSIONS The Parties mutually acknowledge and warrant to one another that neither Buyer nor Seller is represented by any broker in connection with the transaction contemplated in this Agreement. Buyer and Seller agree to indemnify and hold harmless one another from any claim for commissions in connection with the transaction contemplated in this Agreement. 17.INTERPRETATION; APPLICABLE LAW Both Parties having participated fully and equally in the negotiation and preparation of this Agreement, this Agreement shall not be more strictly construed, nor shall any ambiguities in this Agreement be presumptively resolved, against either Party. This Agreement shall be interpreted and enforced according to the laws of the State of Indiana. 18.DISPUTE RESOLUTION; WAIVER OF JURY TRIAL Any action to enforce the terms or conditions of this Agreement or otherwise concerning a dispute under this Agreement will be commenced in the courts of St. Joseph County, Indiana, unless the Parties mutually agree to an alternative method of dispute resolution. The Parties acknowledge that disputes arising under this Agreement are likely to be complex and they desire to streamline and minimize the cost of resolving such disputes. In any legal proceeding, each Party irrevocably waives the right to trial by jury in any action, counterclaim, dispute, or proceeding based upon, or related to, the subject matter of this Agreement. This waiver applies to all claims against all parties to such actions and proceedings. This waiver is knowingly, intentionally, and voluntarily made by both Parties. 19.WAIVER Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of the same or of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of any such right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. 20.SEVERABILITY If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in full force and effect unless amended or modified by mutual consent of the Parties. 21.FURTHER ASSURANCES The Parties agree that they will each undertake in good faith, as permitted by law, any action and execute and deliver any document reasonably required to carry out the intents and purposes of this Agreement. 22 ENTIRE AGREEMENT This Agreement embodies the entire agreement between Seller and Buyer and supersedes all prior discussions, understandings, or agreements, whether written or oral, between Seller and Buyer concerning the transaction contemplated in this Agreement. 23.ASSIGNMENT Buyer and Seller agree that this Agreement or any of Buyer’s rights hereunder may not be assigned by Buyer, in whole or in part, without the prior written consent of Seller. In the event Buyer wishes to obtain Seller’s consent regarding a proposed assignment of this Agreement, Buyer shall provide any and all information reasonably demanded by Seller in connection with the proposed assignment and/or the proposed assignee. 24.BINDING EFFECT; COUNTERPARTS; SIGNATURES All the terms and conditions of this Agreement will be effective and binding upon the Parties and their successors and assigns at the time the Agreement is fully signed and delivered by Buyer and Seller. This Agreement may be separately executed in counterparts by Buyer and Seller, and the same, when taken together, will be regarded as one original Agreement. Electronically transmitted signatures will be regarded as original signatures. 25.AUTHORITY TO EXECUTE; EXISTENCE The undersigned persons executing and delivering this Agreement on behalf of the respective Parties represent and certify that they are the duly authorized representatives of each and have been fully empowered to execute and deliver this Agreement and that all necessary corporate action has been taken and done. Further, the undersigned representative of Buyer represents and warrants that Buyer is duly organized, validly existing, and in good standing under the laws of the State of Indiana. 26.TIME Time is of the essence of this Agreement. [Signature page follows.] IN WITNESS WHEREOF, the Parties hereby execute this Real Estate Purchase Agreement to be effective as of the Contract Date stated above. BUYER: Five Corners, LLC. an Indiana limited liability company By: Anne Hayes, Member Dated: SELLER: South Bend Redevelopment Commission __________________________ Marcia I. Jones, President ATTEST: __________________________ Troy Warner, Secretary EXHIBIT A Description of Property Parcel Number: 71-09-06-154-004.000-026 Tax ID: 018-5095-3334 Legal Description: Lot 4 Talbots Plat EX parts sold to state 19/20 ROW #1159 6/13/18 Commonly Known As: 1210 South Bend Ave., South Bend, IN 46617 Parcel Number: 71-09-06-154-003.000-026 Tax ID: 018-5095-3335 Legal Description: Lot 5 Talbots Plat EX parts sold to state 19/20 ROW #1159 6/13/18 Commonly Known As: 1214 South Bend Ave., South Bend, IN 46617 Parcel Number: 71-09-06-154-001.000-026 Tax ID: 018-5095-3337 Legal Description: Lot 7 Talbots Plat EX parts sold to state 19/20 ROW #1159 6/13/18 Commonly Known As: 1220 South Bend Ave., South Bend, IN 46617 EXHIBIT B Form of Special Warranty Deed Page 1 of 4 AUDITOR’S RECORD TRANSFER NO.__________ TAXING UNIT___________ DATE __________________ KEY NO. SPECIAL WARRANTY DEED THIS INDENTURE WITNESSETH, that the City of South Bend, Department of Redevelopment, by and through its governing body, the South Bend Redevelopment Commission, 1400 S. County-City Building, 227 W. Jefferson Boulevard, South Bend, Indiana (the “Grantor”) CONVEYS AND SPECIALLY WARRANTS to Five Corners, LLC., an Indiana limited partnership with its registered office at 814 Marietta St., South Bend, IN 46601 (the “Grantee”), for and in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the following real estate located in St. Joseph County, Indiana (the “Property”): Parcel Number: 71-09-06-154-004.000-026 Tax ID: 018-5095-3334 Legal Description: Lot 4 Talbots Plat EX parts sold to state 19/20 ROW #1159 6/13/18 Commonly Known As: 1210 South Bend Ave., South Bend, IN 46617 Parcel Number: 71-09-06-154-003.000-026 Tax ID: 018-5095-3335 Legal Description: Lot 5 Talbots Plat EX parts sold to state 19/20 ROW #1159 6/13/18 Commonly Known As: 1214 South Bend Ave., South Bend, IN 46617 Parcel Number: 71-09-06-154-001.000-026 Tax ID: 018-5095-3337 Legal Description: Lot 7 Talbots Plat EX parts sold to state 19/20 ROW #1159 6/13/18 Commonly Known As: 1220 South Bend Ave., South Bend, IN 46617 The Grantor warrants title to the Property only insofar as it might be affected by any act of the Grantor during its ownership thereof and not otherwise. The Grantor hereby conveys the Property to the Grantee free and clear of all leases or licenses; subject to real property taxes and assessments; subject to all easements, covenants, conditions, restrictions, and other matters of record; subject to rights of way for roads and such matters as would be disclosed by an accurate survey and inspection of the Property; subject to all applicable building codes and zoning ordinances; and subject to all provisions and objectives contained in the Commission’s 2019 River East Development Area Plan and the City's Northeast Neighborhood Plan, as thereafter amended from time to time, and any design review guidelines associated therewith. The Grantor conveys the Property to the Grantee subject to the limitation that the Grantee, and its successors and assigns, shall not discriminate against any person on the basis of race, creed, color, sex, age, or national origin in the sale, lease, rental, use, occupancy, or enjoyment of the Property or any improvements constructed on the Property. Pursuant to Section 11 of the Purchase Agreement, the Grantor conveys the Property to the Grantee by this deed subject to certain conditions subsequent. In the event the Grantee fails to perform the Property Improvements, or satisfactorily to prove such performance, in accordance with Section 11 of the Purchase Page 2 of 4 Agreement, then the Grantor shall have the right to re-enter and take possession of the Property and to terminate and revest in the Grantor the estate conveyed to the Grantee by this deed and all of the Grantee’s rights and interests in the Property without offset or compensation for the value of any improvements to the Property made by the Grantee. The recordation of a Certificate of Completion in accordance with Section 11 of the Purchase Agreement will forever release and discharge the Grantor’s reversionary interest stated in this paragraph. Each of the undersigned persons executing this deed on behalf of the Grantor represents and certifies that s/he is a duly authorized representative of the Grantor and has been fully empowered, by proper action of the governing body of the Grantor, to execute and deliver this deed, that the Grantor has full corporate capacity to convey the real estate described herein, and that all necessary action for the making of such conveyance has been taken and done. [SIGNATURE PAGE FOLLOWS] Page 3 of 4 GRANTOR: SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ Marcia I. Jones, President ATTEST: ______________________________ Troy Warner, Secretary STATE OF INDIANA ) ) SS: ST. JOSEPH COUNTY ) Before me, the undersigned, a Notary Public, in and for said County and State, personally appeared Marcia I. Jones and Troy Warner, known to me to be the President and Secretary, respectively, of the South Bend Redevelopment Commission and acknowledged the execution of the foregoing Special Warranty Deed being authorized so to do. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the _____ day of ______________, 2021. My Commission Expires: ____________________________________ Notary Public _______________________ Residing in St. Joseph County, Indiana I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Sandra L. Kennedy. This instrument was prepared by Sandra L. Kennedy, Corporation Counsel, City of South Bend, Indiana, Department of Law, 227 W. Jefferson Boulevard, Suite 1200S, South Bend, IN 46601. . RESOLUTION NO. 3538 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION APPROVING A PROPOSED LEASE WITH THE SOUTH BEND REDEVELOPMENT AUTHORITY RELATING TO THE MORRIS PERFORMING ARTS CENTER PROJECT, AUTHORIZING PUBLICATION OF NOTICE OF PUBLIC HEARING IN CONNECTION THEREWITH, AND ALL MATTERS RELATED THERETO WHEREAS, the South Bend Redevelopment Commission (the “Commission”), the governing body of the South Bend Department of Redevelopment and the Redevelopment District of the City of South Bend, Indiana (the “District”), exists and operates under the provisions of Indiana Code 36-7-14, as amended from time to time (the “Act”); and WHEREAS, the City has determined to undertake certain improvements to the Morris Performing Arts Center (the “Performing Arts Center”) consisting of certain energy savings improvements, renovations of the floor and seating, and certain other improvements at the Performing Arts Center (collectively, the “Project”); and WHEREAS, the Commission has given consideration to (i) financing the cost of all or a portion of the Project; (ii) funding a debt service reserve fund, if necessary in connection with the issuance of the Bonds (defined herein); and (iii) paying costs incurred in connection with the issuance of the Bonds; and WHEREAS, the Commission, being duly advised, now finds that it is in the best interests of the City and its citizens for the purpose of financing the Project to enter into negotiations with the South Bend Redevelopment Authority (the “Authority”) to enter into a lease (the “Lease”) with the Authority, as Lessor, for the Project, in order to better serve the residents of the City; and WHEREAS, the form of the proposed Lease has been presented to the Commission at this public meeting; and WHEREAS, after the duly conducted public hearing, the Commission may adopt a Resolution pursuant to Section 25.2 of the Act authorizing the execution of the proposed Lease on behalf of the City if it finds that the service to be provided throughout the term of the proposed Lease will serve the public purpose of the City, is in the best interests of its residents, and that the Lease rentals provided for are fair and reasonable; and WHEREAS, the Commission expects that the Authority will consider adoption of a resolution authorizing the issuance its lease rental revenue bonds (the “Bonds”) in one (1) or more series for the purpose of financing all or a portion of the costs of the Project and costs related thereto; NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND, INDIANA, REDEVELOPMENT COMMISSION, AS FOLLOWS: SECTION 1. The Commission hereby preliminary approves the proposed Lease between the Authority and the Commission in the form presented at this public meeting. The ITEM: 5A1 -2- Commission hereby sets the public hearing on the Lease for Monday, November 22, 2021, at 9:30 a.m., Room 1308 of the County-City Building, located at 227 West Jefferson Boulevard, South Bend Indiana, or at such other time and/or place as any Officer of the Commission shall determine. The Commission hereby authorizes the publication of a notice of the public hearing on the Lease pursuant to applicable Indiana law and in the form authorized by any Officer of the Commission. SECTION 2. This Resolution shall take effect, and be in full force and effect, upon passage and approval by the Commission, in conformance with applicable law. ADOPTED at a meeting of the South Bend Redevelopment Commission held on November 8, 2021, in Room 1308, County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana, 46601. SOUTH BEND REDEVELOPMENT COMMISSION By: Marcia I. Jones, President ATTEST: Troy Warner, Secretary DMS 21235680v1 LEASE AGREEMENT between SOUTH BEND REDEVELOPMENT AUTHORITY LESSOR and SOUTH BEND REDEVELOPMENT COMMISSION LESSEE Dated as of December 1, 2021 (Morris Performing Arts Center Project) LEASE AGREEMENT THIS LEASE AGREEMENT, made and dated as of this 1st day of December, 2021, by and between the SOUTH BEND REDEVELOPMENT AUTHORITY (the “Lessor”), a separate body corporate and politic organized and existing under the provisions of I.C. 36-7-14.5 as an instrumentality of the City of South Bend, Indiana (the “City”), and the CITY OF SOUTH BEND REDEVELOPMENT COMMISSION (the “Lessee”), the governing body of the City of South Bend, Department of Redevelopment, acting for and on behalf of the City. WITNESSETH: WHEREAS, the City has created the Lessor under and in pursuance of the provisions of I.C. 36-7-14, I.C. 36-7-14.5 and I.C. 36-7-25 (collectively, the “Act”), for the purpose of financing, constructing, acquiring and leasing to the Lessee certain local public improvements and redevelopment and economic development projects; and WHEREAS, the City has created the Lessee to undertake redevelopment and economic development in the City in accordance with the Act; and WHEREAS, the Lessee is the governing body of the South Bend Department of Redevelopment and the Redevelopment District of the City (the “District”) which District is coterminous with the boundaries of the City; and WHEREAS, in accordance with prior resolutions adopted by the Lessee, the Lessee has designated a certain area of the City known as the “River West Development Area” (the “Area”) as an economic development area under the Act and approved an economic development plan for the Area; and WHEREAS, the City has determined to undertake certain renovations and improvements to the Morris Performing Arts Center consisting of certain energy savings improvements, renovations of the floor and seating, and certain other improvements (collectively, the “Project”); and WHEREAS, the Project will foster further economic development and redevelopment throughout the District, including the Area; and WHEREAS, the City, the Lessor, and the Lessee seek to provide a means to finance the Project; and WHEREAS, the Act authorizes the Lessor to issue bonds for the purpose of obtaining money to pay the cost of acquiring property or constructing, improving, reconstructing or renovating local public improvements; and WHEREAS, the costs related to acquiring and completing the Project will be paid from proceeds of bonds to be issued by the Lessor in one (1) or more series; and WHEREAS, the annual rentals to be paid under this Lease by the Lessee will be pledged by the Lessor to pay debt service on and other necessary incidental expenses of the Authority ITEM: 5A1i 2 relating to the Bonds to be issued by the Lessor to finance the acquisition and completion of the Project; and WHEREAS, the Lessor has acquired or will acquire an interest in the real estate on which the Project will be located (the “Leased Premises”) described on Exhibit A hereto and such interest shall be for a term no less than the term of this Lease; and WHEREAS, the Lessee has determined, after a public hearing held pursuant to the Act after notice given pursuant to I.C. § 5-3-1, that the lease rentals provided for in this Lease are fair and reasonable, that the execution of this Lease is necessary and that the service provided by the Project will serve the public purpose of the City and is in the best interests of its residents, and the Common Council of the City (the “Common Council”) has, by resolution, approved this Lease in accordance with the provisions of Section 25.2 of the Act, and the Resolution has been entered in the official records of the Common Council; and WHEREAS, the Lessor has determined that the lease rentals provided for in this Lease are fair and reasonable, that the execution of this Lease is necessary, that the service provided by the Project will serve the public purpose of the City and is in the best interests of its residents, and the Lessor has duly authorized the execution of this Lease by Resolution, and the Resolution has been entered in the official records of the Lessor. THIS AGREEMENT WITNESSETH THAT: 1.Premises, Term and Warranty. The Lessor does hereby lease, demise and let to Lessee all of the Lessor’s right, title and interests in and to the Leased Premises. TO HAVE AND TO HOLD the Leased Premises with all rights, privileges, easements and appurtenances thereunto belonging, unto the Lessee, beginning on the date the Lessor acquires an interest in any of the Leased Premises and ending on the day prior to a date not later than twenty- five (25) years after such date of acquisition by the Lessor. Notwithstanding the foregoing, the term of this Lease will terminate at the earlier of (a) the exercise by the Lessee of the option to purchase all of the Leased Premises pursuant to Section 11 hereof and the payment of the option price, or (b) the payment or defeasance of all obligations issued by the Lessor and secured by this Lease or any portion thereof; provided that no bonds or other obligations of the Lessor issued to finance the Leased Premises remain outstanding at the time of such payment or defeasance. The Lessor hereby represents that it is possessed of, or will acquire, the Leased Premises and the Lessor warrants and will defend the Leased Premises against all claims whatsoever not suffered or caused by the acts or omissions of the Lessee or its assigns. Notwithstanding the foregoing, the Leased Premises may be amended to add additional property to the Leased Premises or remove any portion of the Leased Premises, including, but not limited to the Leased Premises, provided however, following such amendment, the rental payable under this Lease shall be based on the value of the portion of the Leased Premises which is available for use, and the rental payments due under this Lease shall be in amounts sufficient to pay when due all principal of and interest on all outstanding Bonds. 2.Lease Rental. (a) Fixed Rental Payments. The Lessee agrees to pay rental for the Leased Premises at an annual rate per year during the term of the Lease not to exceed Four Hundred Twenty Thousand Dollars ($420,000), payable in semi-annual installments. Each such 3 semi-annual installment, payable as hereinafter described, shall be based on the value of the Leased Premises, together with that portion of the Leased Premises which is complete and ready for use by the Lessee at the time such semi-annual installment is made. Such rental shall be payable in advance in semi-annual installments on January 15 and July 15 of each year, with the first rental installment due no earlier than July 15, 2022. The last semi-annual rental payment due before the expiration of this Lease shall be adjusted to provide for rental at the yearly rate so specified from the date such installment is due to the date of the expiration of this Lease. After the sale of the Bonds, the annual rental shall be reduced to an amount sufficient to pay principal and interest due in each twelve (12) month period commencing each year on August 1, rounded up to the next One Thousand Dollars ($1,000), together with incidental costs in each year in an amount to be determined at the time the Bonds are sold for the purpose of paying annual trustee fees and related costs, payable in advance in semi-annual installments. In addition, each such reduced semi-annual installment shall be based on the value of the Leased Premises at the time such semi-annual installment is made. Such amount of adjusted rental shall be endorsed on this Lease at the end hereof in the form of Exhibit B attached hereto by the parties hereto as soon as the same can be done after the sale of the Bonds, and such endorsement shall be recorded as an addendum to this Lease. (b) Additional Rental Payments. (i) The Lessee shall pay as further rental in addition to the rentals paid under Section 2(a) for the Leased Premises (“Additional Rentals”) the amount of all taxes and assessments levied against or on account of the Leased Premises or the receipt of lease rental payments and the amount required to reimburse the Lessor for any insurance payments made by it under Section 6. The Lessee shall pay as additional rental all administrative expenses of the Lessor, including ongoing trustee fees, relating to the Bonds. Any and all such payments shall be made and satisfactory evidence of such payments in the form of receipts shall be furnished to the Lessor by the Lessee, at least three (3) days before the last day upon which such payments must be paid to avoid delinquency. If the Lessee shall in good faith desire to contest the validity of any such tax or assessment, the Lessee shall so notify the Lessor and shall furnish bond with surety to the approval of the Lessor conditioned for the payment of the charges so desired to be contested and all damages or loss resulting to the Lessor from the nonpayment thereof when due, the Lessee shall not be obligated to pay the contested amounts until such contests shall have been determined. The Lessee shall also pay as Additional Rentals the amount calculated by or for the Lessor as the amount required to be rebated, or paid as a penalty, to the United States of America under Section 148(f) of the Internal Revenue Code of 1986, as amended and in effect on the date of issue of the Bonds (“Code”), after taking into account other available moneys, to prevent the Bonds from becoming arbitrage bonds under Section 148 of the Code. (ii) The Lessee may, by Resolution, pay Additional Rentals to enable the Lessor to redeem or purchase Bonds prior to maturity. Rental payments due under this Section 2 shall be reduced to the extent such payments are allocable to the Bonds redeemed or purchased by the Lessor with such Additional Rentals. The Lessee shall be considered as having an ownership interest in the Leased Premises valued at an amount equal to the amount of the Additional Rentals paid pursuant to this subsection (b)(ii). (c) Source of Payment of Rentals. The annual rentals set forth in Section 2(a) hereof and the Additional Rentals shall be payable solely from the Morris Performing Arts Center Principal and Interest Account of the Redevelopment District Bond Fund (the “Bond Fund”) 4 pursuant to Indiana Code 36-7-14-27. The Lessee may pay the annual rentals and the Additional Rentals, or any other amounts due hereunder, from any other revenues legally available to the Lessee; provided, however, the Lessee shall be under no obligation to pay any annual rentals or Additional Rentals or any other amounts due hereunder from any moneys or properties of the Lessee except the revenues deposited into said account in the Bond Fund. 3.Payment of Rentals. All rentals payable under the terms of this Lease shall be paid by the Lessee to the bank or trust company designated as Trustee (“Trustee”) under the Trust Indenture between it and the Lessor (“Indenture”), or to such other bank or trust company as may from time to time succeed such bank as Trustee under the Indenture securing the bonds to be issued by the Lessor to finance the acquisition and construction of the Leased Premises. Any successor trustee under the Indenture shall be endorsed on this Lease at the end hereof by the parties hereto as soon as possible after selection, and such endorsement shall be recorded as an addendum to this Lease. All payments so made by the Lessee shall be considered as payment to the Lessor of the rentals payable hereunder. 4.Abatement of Rent; Substitution. If any part of the Leased Premises is taken under the exercise of the power of eminent domain, so as to render it unfit, in whole or part, for use by the Lessee, it shall then be the obligation of the Lessor to restore and reconstruct that portion of the Leased Premises as promptly as may be done, unavoidable strikes and other causes beyond the control of the Lessor excepted; provided, however, that the Lessor shall not be obligated to expend on such restoration or reconstruction more than the condemnation proceeds received by the Lessor. If any part of the Leased Premises shall be partially or totally destroyed, or is taken under the exercise of the power of eminent domain, so as to render it unfit, in whole or part, for use or occupancy by the Lessee, the rent shall be abated for the period during which the Leased Premises or such part thereof is unfit or unavailable for use, and the abatement shall be in proportion to the percentage of the Leased Premises which is unfit or unavailable for use or occupancy. Notwithstanding the foregoing, the Leased Premises may be amended to add additional property to the Leased Premises or remove any portion of the Leased Premises, provided however, following such amendment, the rental payable under this Lease shall be based on the value of the portion of the Leased Premises which is available for use, and the rental payments due under this Lease shall be in amounts sufficient to pay when due all principal of and interest on all outstanding Bonds. In the event that all or a portion of the Leased Premises shall be unavailable for use by the Lessee, subject to the completion of any process required by law, the Lessor and the Lessee shall amend the Lease to add to and/or replace a portion of the Leased Premises to the extent necessary to provide for available Leased Premises with a value supporting rental payments under the Lease sufficient to pay when due all principal of and interest on outstanding Bonds. 5.Maintenance, Alterations and Repairs. The Lessee may enter into agreements with one (1) or more other parties for the operation, maintenance, repair and alterations of all or any portion of the Leased Premises. Such other parties may assume all responsibility for operation, maintenance, repairs and alterations to the Leased Premises. At the end of the term of this Lease, the Lessee shall deliver the Leased Premises to the Lessor in as good condition as at the beginning of the term, reasonable wear and tear only excepted. 5 6. Insurance. During the full term of this Lease, the Lessee shall, at its own expense, keep in effect public liability insurance in amounts customarily carried for similar properties. Such insurance may be provided under the public liability self-insurance program of the City. Additionally, notwithstanding anything in this Lease to the contrary, Lessee does not waive any governmental immunity or liability limitations available to it under Indiana law. The proceeds of the public liability insurance required herein (after payment of expenses incurred in the collection of such proceeds) shall be applied toward extinguishment or satisfaction of the liability with respect to which such insurance proceeds are paid. Such policies shall be for the benefit of persons having an insurable interest in the Leased Premises, and shall be made payable to the Lessor, the Lessee, and the Trustee and to such other person or persons as the Lessor may designate. Such policies shall be countersigned by an agent of the insurer who is a resident of the State of Indiana and deposited with the Lessor and the Trustee. If, at any time, the Lessee fails to maintain insurance in accordance with this Section, such insurance may be obtained by the Lessor and the amount paid therefor shall be added to the amount of rentals payable by the Lessee under this Lease; provided, however, that the Lessor shall be under no obligation to obtain such insurance and any action or non-action of the Lessor in this regard shall not relieve the Lessee of any consequence of its default in failing to obtain such insurance. The insurance policies described in this Section 6 may be acquired by another party and shall satisfy this Section as long as the Lessor, the Lessee and the Trustee are named as additional insureds under such policies. Such coverage may be provided by scheduling it under a blanket insurance policy or policies. 7. Eminent Domain. If title to or the temporary use of the Leased Premises, or any part thereof, shall be taken under the exercise or the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, any net proceeds received from any award made in such eminent domain proceedings (after payment of expenses incurred in such collection) shall be paid to and held by the Trustee under the Indenture. Such proceeds shall be applied in one (1) or more of the following ways: (a) The restoration of the Leased Premises to substantially the same condition as it existed prior to the exercise of that power of eminent domain, or (b) The acquisition, by construction or otherwise, of other improvements suitable for the Lessee’s operations on the Leased Premises and which are in furtherance of the purposes of the Act and the Plan (the improvements shall be deemed a part of the Leased Premises and available for use and occupancy by the Lessee without the payment of any rent other than as herein provided, to the same extent as if such other improvements were specifically described herein and demised hereby). Within ninety (90) days from the date of entry of a final order in any eminent domain proceedings granting condemnation, the Lessee shall direct the Lessor and the Trustee in writing as to which of the ways specified in this Section the Lessee elects to have the net proceeds of the condemnation award applied. Any balance of the net proceeds of the award in such eminent domain proceedings not required to be applied for the purposes specified in subsections (a) or (b) above shall be deposited in the sinking fund held by the Trustee under the Indenture and applied to the repayment of the Bonds. 6 The Lessor shall cooperate fully with the Lessee in the handling and conduct of any prospective or pending condemnation proceedings with respect to the Leased Premises or any part thereof and will to the extent it may lawfully do so permit the Lessee to litigate in any such proceedings in its own name or in the name and on behalf of the Lessor. In no event will the Lessor voluntarily settle or consent to the settlement of any prospective or pending condemnation proceedings with respect to the Leased Premises or any part thereof without the written consent of the Lessee, which consent shall not be unreasonably withheld. 8. General Covenant. The Lessee shall not assign this Lease or mortgage, pledge or sublet the Leased Premises herein described, without the written consent of the Lessor. The Lessee shall contract with the other parties to use and maintain the Leased Premises in accordance with the laws, regulations and ordinances of the United States of America, the State of Indiana, the City and all other proper governmental authorities. 9. Tax Covenants. In order to preserve the exclusion of interest on the Bonds from gross income for federal income tax purposes and as an inducement to purchasers of the Bonds, the Lessee and the Lessor represent, covenant and agree that neither the Lessor nor the Lessee will take any action or fail to take any action with respect to the Bonds, this Lease or the Leased Premises that will result in the loss of the exclusion from gross income for federal tax purposes of interest on the Bonds under Section 103 of the Code, nor will they act in any other manner which will adversely affect such exclusion; and it will not make any investment or do any other act or thing during the period that the Bonds are outstanding which will cause any of the Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code. The covenants in this Section are based solely on current law in effect and in existence on the date of issuance of the Bonds. It shall not be an event of default under this Lease if interest on any Bonds is not excludable from gross income pursuant to any provision of the Code which is not in existence and in effect on the issue date of the Bonds. All Officers, Members, Employees and Agents of the Lessor and the Lessee are authorized to provide certifications of facts and estimates that are material to the reasonable expectations of the Lessor and the Lessee as of the date the Bonds are issued and to enter into covenants on behalf of the Lessor and the Lessee evidencing the Lessor’s and the Lessee’s commitments made herein. In particular, all or any Members or Officers of the Lessor and the Lessee are authorized to certify and enter into covenants regarding the facts and circumstances and reasonable expectations of the Lessor and the Lessee on the date the Bonds are issued and the commitments made by the Lessor and the Lessee herein regarding the amount and use of the proceeds of the Bonds. Notwithstanding any other provisions hereof, the foregoing covenants and authorizations (the “Tax Sections”) which are designed to preserve the exclusion of interest on the Bonds from gross income under federal income tax law (the “Tax Exemption”) need not be complied with if the Lessee receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to preserve the Tax Exemption. 10. Option to Renew. The Lessor hereby grants to the Lessee the right and option to renew this Lease for a further like or lesser term upon the same or like conditions as herein contained, and applicable to the portion of the premises for which the renewal applies, and the Lessee shall exercise this option by written notice to the Lessor given upon any rental payment date prior to the expiration of this Lease. 7 11.Option to Purchase. The Lessor hereby grants to the Lessee the right and option, on any date, upon sixty (60) days’ written notice to the Lessor, to purchase the Leased Premises, or any portion thereof, at a price equal to the amount required to pay all indebtedness incurred on account of the Leased Premises, or such portion thereof (including indebtedness incurred for the refunding of any such indebtedness), including all premiums payable on the redemption thereof and accrued and unpaid interest, and including the proportionate share of the expenses and charges of liquidation, if the Lessor is to be then liquidated. In no event, however, shall such purchase price exceed the capital actually invested in such property by the Lessor represented by outstanding securities or existing indebtedness plus the cost of transferring the property and liquidating the Lessor. The phrase “capital actually invested” as used herein shall be construed to include, but not by way of limitation, the following amounts expended by the Lessor in connection with the acquisition and financing of the Leased Premises: organization expenses, financing costs, carry charges, legal fees, architects’ fees and reasonable costs and expenses incidental thereto. Upon request of the Lessee, the Lessor agrees to furnish an itemized statement setting forth the amount required to be paid by the Lessee in order to purchase the Leased Premises, or any portion thereof, including, but not limited to all indebtedness incurred on account of the Leased Premises in accordance with the preceding paragraph. Upon the exercise of the option to purchase granted herein, the Lessor will upon payment of the option price deliver, or cause to be delivered, to the Lessee documents conveying to the Lessee, or any entity (including the City) designated by the Lessee, all of the Lessor’s title to the property being purchased, as such property then exists, subject to the following: (i) those liens and encumbrances (if any) to which title to the property was subject when conveyed to the Lessor; (ii) those liens and encumbrances created by the Lessee and to the creation or suffering of which the Lessee consented, and liens for taxes or special assessments not then delinquent; and (iii) those liens and encumbrances on its part contained in this Lease. In the event of purchase of the Leased Premises, or any portion thereof as set forth above, by the Lessee or conveyance of the Leased Premises, or any portion thereof as set forth above, to the Lessee or the Lessee’s designee, the Lessee shall procure and pay for all surveys, title searches, abstracts, title policies and legal services that may be required, and shall furnish at the Lessee’s expense all documentary stamps or tax payments required for the transfer of title. Nothing contained herein shall be construed to provide that the Lessee shall be under any obligation to purchase the Leased Premises, or any portion thereof as set forth above, or under any obligation respecting the creditors, members or security holders of the Lessor. 12.Transfer to Lessee. If the Lessee has not exercised its option to renew in accordance with the provisions of Section 10, and has not exercised its option to purchase the Leased Premises, or any portion thereof, in accordance with the provisions of Section 11, and upon the full discharge and performance by the Lessee of its obligations under this Lease, the Leased Premises, or such portion thereof remaining, shall thereupon become the absolute property of the Lessee, subject to the limitations, if any, on the conveyance of the site for the Leased Premises to the Lessor and, upon the Lessee’s request the Lessor shall execute proper instruments conveying to the Lessee, or to any entity (including the City) designated by the Lessee, all of Lessor’s title to the Leased Premises, or such portion thereof. 8 13.Defaults. If the Lessee shall default (a) in the payment of any rentals or other sums payable to the Lessor hereunder, or in the payment of any other sum herein required to be paid for the Lessor; or (b) in the observance of any other covenant, agreement or condition hereof, and such default shall continue for ninety (90) days after written notice to correct such default; then, in any or either of such events, the Lessor may proceed to protect and enforce its rights by suit or suits in equity or at law in any court of competent jurisdiction, whether for specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy; or the Lessor, at its option, without further notice, may terminate the estate and interest of the Lessee hereunder, and it shall be lawful for the Lessor forthwith to resume possession of the Leased Premises and the Lessee covenants to surrender the same forthwith upon demand. The exercise by the Lessor of the above right to terminate this Lease shall not release the Lessee from the performance of any obligation hereof maturing prior to the Lessor’s actual entry into possession. No waiver by the Lessor of any right to terminate this Lease upon any default shall operate to waive such right upon the same or other default subsequently occurring. 14.Notices. Whenever either party shall be required to give notice to the other under this Lease, it shall be sufficient service of such notice to deposit the same in the United States mail, in an envelope duly stamped, registered and addressed to the other party or parties at the following addresses: (a) to Lessor: South Bend Redevelopment Authority, Attention: President, c/o Department of Community Investment, 227 West Jefferson Blvd., Suite 1405, South Bend, Indiana; (b) to Lessee: South Bend Redevelopment Commission, Attention: President, c/o Department of Community Investment, 227 West Jefferson Blvd., Suite 1405, South Bend, Indiana. The Lessor, the Lessee and the Trustee may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent. 15.Successors or Assigns. All covenants of this Lease, whether by the Lessor or the Lessee, shall be binding upon the successors and assigns of the respective parties hereto. 16.Construction of Covenants. The Lessor was organized for the purpose of acquiring, constructing, equipping and renovating local public improvements and leasing the same to the Lessee under the provisions of the Act. All provisions herein contained shall be construed in accordance with the provisions of the Act, and to the extent of inconsistencies, if any, between the covenants and agreements in this Lease and the provisions of the Act, the Act shall be deemed to be controlling and binding upon the Lessor and the Lessee; provided, however, any amendment to the Act after the date hereof shall not have the effect of amending this Lease. 9 IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed for and on their behalf on the date first written above. LESSOR: LESSEE: SOUTH BEND REDEVELOPMENT AUTHORITY CITY OF SOUTH BEND, INDIANA, REDEVELOPMENT COMMISSION President President ATTEST: Secretary-Treasurer ATTEST: Secretary 10 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for this City and State, personally appeared ____________________________ and ___________________________, personally known to be the President and Secretary-Treasurer, respectively, of the South Bend Redevelopment Authority (the “Authority”), and acknowledged the execution of the foregoing Lease for and on behalf of the Authority. WITNESS my hand and notarial seal this ____day of _______________, 2021. (Written Signature) (Seal) (Printed Signature) Notary Public My Commission expires: My county of residence is: 11 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for this City and State, personally appeared ____________________________ and _____________________________, personally known to be the President and Secretary, respectively, of the South Bend Redevelopment Commission (the “Commission”), and acknowledged the execution of the foregoing Lease for and on behalf of the Commission. WITNESS my hand and notarial seal this ____day of ________, 2021. (Written Signature) (Seal) (Printed Signature) Notary Public My Commission expires: My county of residence is: I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social Security Number in this document, unless required by law. Randolph R. Rompola This instrument was prepared by Randolph R. Rompola, Barnes & Thornburg LLP, 100 North Michigan, Suite 700, South Bend, Indiana 46601. A-1 EXHIBIT A DESCRIPTION OF LEASED PREMISES All of the City’s interest in all or a portion of the Leased Premises which consists of existing Morris Performing Arts Center, as more particularly described as follows: [Legal Description for the Morris Performing Arts Center will be added prior to the Recording of the Lease.] B-1 EXHIBIT B ADDENDUM TO LEASE BETWEEN SOUTH BEND REDEVELOPMENT AUTHORITY, LESSOR AND SOUTH BEND REDEVELOPMENT COMMISSION, LESSEE THIS ADDENDUM (this “Addendum”), entered into as of this ____ day of _____________, 2021, by and between South Bend Redevelopment Authority (the “Lessor”), and South Bend Redevelopment Commission (the “Lessee”); WITNESSETH: WHEREAS, the Lessor entered into a lease with the Lessee dated as of December 1, 2021 (the “Lease”); and WHEREAS, it is provided in the Lease that there shall be endorsed thereon the adjusted rental. NOW, THEREFORE, IT IS HEREBY AGREED, CERTIFIED AND STIPULATED by the parties to the Lease that the adjusted rental is set forth on Appendix I attached hereto. IN WITNESS WHEREOF, the Parties hereto have caused this Addendum to be executed for and on their behalf as of the day and year first above written. LESSOR LESSEE SOUTH BEND REDEVELOPMENT AUTHORITY SOUTH BEND REDEVELOPMENT COMMISSION President President ATTEST: Secretary-Treasurer ATTEST: Secretary I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social Security Number in this document, unless required by law. Randolph R. Rompola This instrument was prepared by Randolph R. Rompola Barnes & Thornburg LLP, 100 North Michigan, Suite 700, South Bend, Indiana 46601. B-2 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for this City and State, personally appeared _________________ and ______________________, personally known to be the President and Secretary-Treasurer, respectively, of the South Bend Redevelopment Authority (the “Authority”), and acknowledged the execution of the foregoing Addendum to Lease for and on behalf of the Authority. WITNESS my hand and notarial seal this ______ day of ______, 2021. (Written Signature) (Seal) (Printed Signature) Notary Public My Commission expires: My county of residence is: B-3 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for this City and State, personally appeared _________________ and ______________________, personally known to be the President and Secretary, respectively, of the South Bend Redevelopment Commission (the “Commission”), and acknowledged the execution of the foregoing Addendum to Lease for and on behalf of the Commission. WITNESS my hand and notarial seal this ______ day of ______, 2021. (Written Signature) (Seal) (Printed Signature) Notary Public My Commission expires: My county of residence is: B-4 Appendix I to Addendum to Lease Adjusted Rental Schedule Payment Date Total Rental Payment DMS 21235139v1 RESOLUTION NO. 3539 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION APPROVING A PROPOSED LEASE WITH THE CITY OF SOUTH BEND BUILDING CORPORATION RELATING TO THE POTAWATOMI ZOO PROJECT, AUTHORIZING PUBLICATION OF NOTICE OF PUBLIC HEARING IN CONNECTION THEREWITH, AND ALL MATTERS RELATED THERETO WHEREAS, the South Bend Redevelopment Commission (the “Commission”), the governing body of the South Bend Department of Redevelopment and the Redevelopment District of the City of South Bend, Indiana (the “District”), exists and operates under the provisions of Indiana Code 36-7-14, as amended from time to time (the “Act”); and WHEREAS, the City of South Bend Building Corporation (the “Building Corporation”) has been incorporated as an Indiana nonprofit corporation operating pursuant to Indiana Code 23- 17 in order to finance buildings and other capital improvements in the City; and WHEREAS, the City has previously entered into a Lease and Management Agreement, dated as of January 1, 2019 with the Potawatomi Zoological Society, Inc. (“PZS”), an Indiana nonprofit corporation, to provide for PZS to operate the Potawatomi Zoo located in the City (the “Zoo”); and WHEREAS, PZS desires to undertake certain capital improvements at the Zoo (the “Project”); and WHEREAS, in order to foster continued economic development in the City, the Commission has given consideration to assisting the City with the financing the costs of all or a portion of the Project and expenses related thereto including without limitation funding a debt service reserve fund, if necessary in connection with the issuance of the Bonds (defined herein) and paying costs incurred in connection with the issuance of the Bonds; and WHEREAS, the Commission, being duly advised, now finds that it is in the best interests of the City and its citizens for the purpose of financing all or any portion of the Project to enter into negotiations with the Building Corporation to enter into a lease (the “Lease”) with the Building Corporation, as Lessor, for a portions of Greenlawn Avenue and Wall Street in the City as more fully described in the Lease in order to better serve the residents of the City; and WHEREAS, the form of the proposed Lease has been presented to the Commission at this public meeting; and WHEREAS, after the duly conducted public hearing, the Commission may adopt a Resolution pursuant to Section 25.2 of the Act authorizing the execution of the proposed Lease on behalf of the City if it finds that the service to be provided throughout the term of the proposed Lease will serve the public purpose of the City, is in the best interests of its residents, and that the Lease rentals provided for are fair and reasonable; and ITEM: 5A2 -2- WHEREAS, the Commission expects that the City will consider adoption of an ordinance authorizing the issuance its economic development revenue bonds (the “Bonds”) in one (1) or more series pursuant to Indiana Code 36-7-11.9 to provide for PZS to use the proceeds of the Bonds to pay all or a portion of the costs of the Project and costs related thereto; NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND, INDIANA, REDEVELOPMENT COMMISSION, AS FOLLOWS: SECTION 1. The Commission hereby preliminary approves the proposed Lease between the Building Corporation and the Commission in the form presented at this public meeting. The Commission hereby sets the public hearing on the Lease for Monday, November 22, 2021, at 9:30 a.m., Room 1308 of the County-City Building, located at 227 West Jefferson Boulevard, South Bend Indiana, or at such other time and/or place as any Officer of the Commission shall determine. The Commission hereby authorizes the publication of a notice of the public hearing on the Lease pursuant to applicable Indiana law and in the form authorized by any Officer of the Commission. SECTION 2. This Resolution shall take effect, and be in full force and effect, upon passage and approval by the Commission, in conformance with applicable law. ADOPTED at a meeting of the South Bend Redevelopment Commission held on November 8, 2021, in Room 1308, County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana, 46601. SOUTH BEND REDEVELOPMENT COMMISSION By: Marcia I. Jones, President ATTEST: Troy Warner, Secretary DMS 21249521v2 LEASE AGREEMENT between CITY OF SOUTH BEND BUILDING CORPORATION LESSOR and SOUTH BEND REDEVELOPMENT COMMISSION LESSEE Dated as of December 1, 2021 (Potawatomi Zoological Society, Inc. Project) ITEM: 5A2i LEASE AGREEMENT THIS LEASE AGREEMENT, made and dated as of this 1st day of December, 2021, by and between the CITY OF SOUTH BEND BUILDING CORPORATION (the “Lessor”), an Indiana nonprofit corporation, and the CITY OF SOUTH BEND REDEVELOPMENT COMMISSION (the “Lessee”), the governing body of the City of South Bend, Department of Redevelopment, acting for and on behalf of the City of South Bend, Indiana (the “City”). WITNESSETH: WHEREAS, the Lessor exists for the purpose, among others, of financing and leasing buildings and other capital improvements in the City; and WHEREAS, the City has created the Lessee to undertake redevelopment and economic development in the City in accordance with Indiana Code 36-7-14 and Indiana Code 36-7-25 (collectively, the “Redevelopment Act”); and WHEREAS, to foster continued economic development in the City, the City, the Lessor, and the Lessee desire to provide for the construction and equipping of certain capital improvements at the Potawatomi Zoo (the “Project”); and WHEREAS, a portion of the costs of the acquisition and construction of the Project will be financed by the proceeds of bonds to be issued by the City in a maximum original issued amount not to exceed Six Million Five Hundred Thousand Dollars ($6,500,000) (the “Bonds”), pursuant to Indiana Code 36-7-11.9 and 12 (the “EDC Act”) and a Trust Indenture, to be dated as of the first day of the month in which the Bonds are sold or issued (the “Indenture”), between the City and a financial institution selected to serve as bond trustee (the “Trustee”); and WHEREAS, the Potawatomi Zoological Society, Inc., an Indiana nonprofit corporation (the “Corporation”), shall use a portion of the proceeds of the Bonds to pay for the Project pursuant to a Financing Agreement to be dated as of the first day of the month in which the Bonds are sold or issued (the “Financing Agreement”), by and among the City, the Corporation and the Lessor; and WHEREAS, the Bonds will be payable by the Lessor pursuant to the Financing Agreement; WHEREAS, the Lessor’s obligations under the Financing Agreement will be payable solely from the annual rentals to be paid by the Commission under this lease, and such payments under this Lease will be assigned by the Lessor pursuant to the Financing Agreement to the Trustee to pay debt service on and other necessary incidental expenses related to the Bonds; and WHEREAS, the Lessor has acquired or will acquire an interest in the real estate which will serve as the leased premises (the “Leased Premises”) described on Exhibit A hereto and such interest shall be for a term no less than the term of this Lease; and WHEREAS, the Lessee has determined, after a public hearing held pursuant to the Redevelopment Act after notice given pursuant to I.C. § 5-3-1, that the lease rentals provided for 2 in this Lease are fair and reasonable, that the execution of this Lease is necessary and that the service provided by the Project will serve the public purpose of the City and is in the best interests of its residents, and the Common Council of the City (the “Common Council”) has, by resolution, approved this Lease in accordance with the provisions of Section 25.2 of the Redevelopment Act, and the Resolution has been entered in the official records of the Common Council; and WHEREAS, the Lessor has determined that the lease rentals provided for in this Lease are fair and reasonable, that the execution of this Lease is necessary, that the service provided by the Project will serve the public purpose of the City and is in the best interests of its residents, and the Lessor has duly authorized the execution of this Lease by Resolution, and the Resolution has been entered in the official records of the Lessor. THIS AGREEMENT WITNESSETH THAT: 1.Premises, Term and Warranty. The Lessor does hereby lease, demise and let to Lessee all of the Lessor’s right, title and interests in and to the Leased Premises. TO HAVE AND TO HOLD the Leased Premises with all rights, privileges, easements and appurtenances thereunto belonging, unto the Lessee, beginning on the date the Lessor acquires an interest in any of the Leased Premises and ending on the day prior to a date not later than twenty- two (22) years after such date of acquisition by the Lessor. Notwithstanding the foregoing, the term of this Lease will terminate at the earlier of (a) the exercise by the Lessee of the option to purchase all of the Leased Premises pursuant to Section 11 hereof and the payment of the option price, or (b) the payment or defeasance of all obligations issued by the Lessor and secured by this Lease or any portion thereof; provided that no bonds or other obligations of the Lessor issued to finance the Leased Premises remain outstanding at the time of such payment or defeasance. The Lessor hereby represents that it is possessed of, or will acquire, the Leased Premises and the Lessor warrants and will defend the Leased Premises against all claims whatsoever not suffered or caused by the acts or omissions of the Lessee or its assigns. Notwithstanding the foregoing, the Leased Premises may be amended to add additional property to the Leased Premises or remove any portion of the Leased Premises, including, but not limited to the Leased Premises, provided however, following such amendment, the rental payable under this Lease shall be based on the value of the portion of the Leased Premises which is available for use, and the rental payments due under this Lease shall be in amounts sufficient to pay when due all principal of and interest on all outstanding Bonds. 2.Lease Rental. (a) Fixed Rental Payments. The Lessee agrees to pay rental for the Leased Premises at an annual rate per year during the term of the Lease not to exceed Four Hundred Twenty Thousand Dollars ($420,000), payable in semi-annual installments. Each such semi-annual installment, payable as hereinafter described, shall be based on the value of the Leased Premises, together with that portion of the Project which is complete and ready for use by the Lessee at the time such semi-annual installment is made. Such rental shall be payable in advance in semi-annual installments on January 15 and July 15 of each year, with the first rental installment due no earlier than July 15, 2022. The last semi-annual rental payment due before the expiration of this Lease shall be adjusted to provide for rental at the yearly rate so specified from the date such installment is due to the date of the expiration of this Lease. 3 After the sale of the Bonds, the annual rental shall be reduced to an amount sufficient to pay principal and interest due in each twelve (12) month period commencing each year on August 1, rounded up to the next One Thousand Dollars ($1,000), together with incidental costs in each year in an amount to be determined at the time the Bonds are sold for the purpose of paying annual trustee fees and related costs, payable in advance in semi-annual installments. In addition, each such reduced semi-annual installment shall be based on the value of the Leased Premises at the time such semi-annual installment is made. Such amount of adjusted rental shall be endorsed on this Lease at the end hereof in the form of Exhibit B attached hereto by the parties hereto as soon as the same can be done after the sale of the Bonds, and such endorsement shall be recorded as an addendum to this Lease. (b) Additional Rental Payments. (i) The Lessee shall pay as further rental in addition to the rentals paid under Section 2(a) for the Leased Premises (“Additional Rentals”) the amount of all taxes and assessments levied against or on account of the Leased Premises or the receipt of lease rental payments and the amount required to reimburse the Lessor for any insurance payments made by it under Section 6. The Lessee shall pay as additional rental all administrative expenses of the Lessor, including ongoing trustee fees, relating to the Bonds. Any and all such payments shall be made and satisfactory evidence of such payments in the form of receipts shall be furnished to the Lessor by the Lessee, at least three (3) days before the last day upon which such payments must be paid to avoid delinquency. If the Lessee shall in good faith desire to contest the validity of any such tax or assessment, the Lessee shall so notify the Lessor and shall furnish bond with surety to the approval of the Lessor conditioned for the payment of the charges so desired to be contested and all damages or loss resulting to the Lessor from the nonpayment thereof when due, the Lessee shall not be obligated to pay the contested amounts until such contests shall have been determined. The Lessee shall also pay as Additional Rentals the amount calculated by or for the Lessor as the amount required to be rebated, or paid as a penalty, to the United States of America under Section 148(f) of the Internal Revenue Code of 1986, as amended and in effect on the date of issue of the Bonds (“Code”), after taking into account other available moneys, to prevent the Bonds from becoming arbitrage bonds under Section 148 of the Code. (ii) The Lessee may, by Resolution, pay Additional Rentals to enable the Lessor to redeem or purchase Bonds prior to maturity. Rental payments due under this Section 2 shall be reduced to the extent such payments are allocable to the Bonds redeemed or purchased by the Lessor with such Additional Rentals. The Lessee shall be considered as having an ownership interest in the Leased Premises valued at an amount equal to the amount of the Additional Rentals paid pursuant to this subsection (b)(ii). (c) Source of Payment of Rentals. The annual rentals set forth in Section 2(a) hereof and the Additional Rentals shall be payable solely from the Potawatomi Zoo Principal and Interest Account of the Redevelopment District Bond Fund (the “Bond Fund”) pursuant to Indiana Code 36-7-14-27. The Lessee may pay the annual rentals and the Additional Rentals, or any other amounts due hereunder, from any other revenues legally available to the Lessee; provided, however, the Lessee shall be under no obligation to pay any annual rentals or Additional Rentals or any other amounts due hereunder from any moneys or properties of the Lessee except the revenues deposited into said account in the Bond Fund. 3. Payment of Rentals. All rentals payable under the terms of this Lease shall be paid by the Lessee to the Trustee under the Indenture, or to such other bank or trust company as 4 may from time to time succeed the Trustee. Any successor trustee under the Indenture shall be endorsed on this Lease at the end hereof by the parties hereto as soon as possible after selection, and such endorsement shall be recorded as an addendum to this Lease. All payments so made by the Lessee shall be considered as payment to the Lessor of the rentals payable hereunder. 4.Abatement of Rent; Substitution. If any part of the Leased Premises is taken under the exercise of the power of eminent domain, so as to render it unfit, in whole or part, for use by the Lessee, it shall then be the obligation of the Lessor to restore and reconstruct that portion of the Leased Premises as promptly as may be done, unavoidable strikes and other causes beyond the control of the Lessor excepted; provided, however, that the Lessor shall not be obligated to expend on such restoration or reconstruction more than the condemnation proceeds received by the Lessor. If any part of the Leased Premises shall be partially or totally destroyed, or is taken under the exercise of the power of eminent domain, so as to render it unfit, in whole or part, for use or occupancy by the Lessee, the rent shall be abated for the period during which the Leased Premises or such part thereof is unfit or unavailable for use, and the abatement shall be in proportion to the percentage of the Leased Premises which is unfit or unavailable for use or occupancy. Notwithstanding the foregoing, the Leased Premises may be amended to add additional property to the Leased Premises or remove any portion of the Leased Premises, provided however, following such amendment, the rental payable under this Lease shall be based on the value of the portion of the Leased Premises which is available for use, and the rental payments due under this Lease shall be in amounts sufficient to pay when due all principal of and interest on all outstanding Bonds. In the event that all or a portion of the Leased Premises shall be unavailable for use by the Lessee, subject to the completion of any process required by law, the Lessor and the Lessee shall amend the Lease to add to and/or replace a portion of the Leased Premises to the extent necessary to provide for available Leased Premises with a value supporting rental payments under the Lease sufficient to pay when due all principal of and interest on outstanding Bonds. 5.Maintenance, Alterations and Repairs. The Lessee may enter into agreements with one (1) or more other parties for the operation, maintenance, repair and alterations of all or any portion of the Leased Premises. Such other parties may assume all responsibility for operation, maintenance, repairs and alterations to the Leased Premises. At the end of the term of this Lease, the Lessee shall deliver the Leased Premises to the Lessor in as good condition as at the beginning of the term, reasonable wear and tear only excepted. 6.Insurance. During the full term of this Lease, the Lessee shall, at its own expense, keep in effect public liability insurance in amounts customarily carried for similar properties. Such insurance may be provided under the public liability self-insurance program of the City. Additionally, notwithstanding anything in this Lease to the contrary, Lessee does not waive any governmental immunity or liability limitations available to it under Indiana law. The proceeds of the public liability insurance required herein (after payment of expenses incurred in the collection of such proceeds) shall be applied toward extinguishment or satisfaction of the liability with respect to which such insurance proceeds are paid. Such policies shall be for the benefit of persons having an insurable interest in the Leased Premises, and shall be made payable to the Lessor, the Lessee, and the Trustee and to such other person or persons as the Lessor may designate. Such policies shall be countersigned by an agent of the insurer who is a resident 5 of the State of Indiana and deposited with the Lessor and the Trustee. If, at any time, the Lessee fails to maintain insurance in accordance with this Section, such insurance may be obtained by the Lessor and the amount paid therefor shall be added to the amount of rentals payable by the Lessee under this Lease; provided, however, that the Lessor shall be under no obligation to obtain such insurance and any action or non-action of the Lessor in this regard shall not relieve the Lessee of any consequence of its default in failing to obtain such insurance. The insurance policies described in this Section 6 may be acquired by another party and shall satisfy this Section as long as the Lessor, the Lessee and the Trustee are named as additional insureds under such policies. Such coverage may be provided by scheduling it under a blanket insurance policy or policies. 7.Eminent Domain. If title to or the temporary use of the Leased Premises, or any part thereof, shall be taken under the exercise or the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, any net proceeds received from any award made in such eminent domain proceedings (after payment of expenses incurred in such collection) shall be paid to and held by the Trustee under the Indenture. Such proceeds shall be applied in one (1) or more of the following ways: (a)The restoration of the Leased Premises to substantially the same condition as it existed prior to the exercise of that power of eminent domain, or (b)The acquisition, by construction or otherwise, of other improvements suitable for the Lessee’s operations on the Leased Premises and which are in furtherance of the purposes of the Redevelopment Act (the improvements shall be deemed a part of the Leased Premises and available for use and occupancy by the Lessee without the payment of any rent other than as herein provided, to the same extent as if such other improvements were specifically described herein and demised hereby). Within ninety (90) days from the date of entry of a final order in any eminent domain proceedings granting condemnation, the Lessee shall direct the Lessor and the Trustee in writing as to which of the ways specified in this Section the Lessee elects to have the net proceeds of the condemnation award applied. Any balance of the net proceeds of the award in such eminent domain proceedings not required to be applied for the purposes specified in subsections (a) or (b) above shall be deposited in the sinking fund held by the Trustee under the Indenture and applied to the repayment of the Bonds. The Lessor shall cooperate fully with the Lessee in the handling and conduct of any prospective or pending condemnation proceedings with respect to the Leased Premises or any part thereof and will to the extent it may lawfully do so permit the Lessee to litigate in any such proceedings in its own name or in the name and on behalf of the Lessor. In no event will the Lessor voluntarily settle or consent to the settlement of any prospective or pending condemnation proceedings with respect to the Leased Premises or any part thereof without the written consent of the Lessee, which consent shall not be unreasonably withheld. 8.General Covenant. The Lessee shall not assign this Lease or mortgage, pledge or sublet the Leased Premises herein described, without the written consent of the Lessor. The Lessee shall contract with the other parties to use and maintain the Leased Premises in accordance with 6 the laws, regulations and ordinances of the United States of America, the State of Indiana, the City and all other proper governmental authorities. 9.Tax Covenants. In order to preserve the exclusion of interest on the Bonds from gross income for federal income tax purposes and as an inducement to purchasers of the Bonds, the Lessee and the Lessor represent, covenant and agree that neither the Lessor nor the Lessee will take any action or fail to take any action with respect to the Bonds, this Lease or the Leased Premises that will result in the loss of the exclusion from gross income for federal tax purposes of interest on the Bonds under Section 103 of the Code, nor will they act in any other manner which will adversely affect such exclusion; and it will not make any investment or do any other act or thing during the period that the Bonds are outstanding which will cause any of the Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code. The covenants in this Section are based solely on current law in effect and in existence on the date of issuance of the Bonds. It shall not be an event of default under this Lease if interest on any Bonds is not excludable from gross income pursuant to any provision of the Code which is not in existence and in effect on the issue date of the Bonds. All Officers, Members, Employees and Agents of the Lessor and the Lessee are authorized to provide certifications of facts and estimates that are material to the reasonable expectations of the Lessor and the Lessee as of the date the Bonds are issued and to enter into covenants on behalf of the Lessor and the Lessee evidencing the Lessor’s and the Lessee’s commitments made herein. In particular, all or any Members or Officers of the Lessor and the Lessee are authorized to certify and enter into covenants regarding the facts and circumstances and reasonable expectations of the Lessor and the Lessee on the date the Bonds are issued and the commitments made by the Lessor and the Lessee herein regarding the amount and use of the proceeds of the Bonds. Notwithstanding any other provisions hereof, the foregoing covenants and authorizations (the “Tax Sections”) which are designed to preserve the exclusion of interest on the Bonds from gross income under federal income tax law (the “Tax Exemption”) need not be complied with if the Lessee receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to preserve the Tax Exemption. 10.Option to Renew. The Lessor hereby grants to the Lessee the right and option to renew this Lease for a further like or lesser term upon the same or like conditions as herein contained, and applicable to the portion of the premises for which the renewal applies, and the Lessee shall exercise this option by written notice to the Lessor given upon any rental payment date prior to the expiration of this Lease. 11.Option to Purchase. The Lessor hereby grants to the Lessee the right and option, on any date, upon sixty (60) days’ written notice to the Lessor, to purchase the Leased Premises, or any portion thereof, at a price equal to the amount required to pay all indebtedness incurred on account of the Leased Premises, or such portion thereof (including indebtedness incurred for the refunding of any such indebtedness), including all premiums payable on the redemption thereof and accrued and unpaid interest, and including the proportionate share of the expenses and charges of liquidation, if the Lessor is to be then liquidated. In no event, however, shall such purchase price exceed the capital actually invested in such property by the Lessor represented by outstanding securities or existing indebtedness plus the cost of transferring the property and liquidating the Lessor. The phrase “capital actually invested” as used herein shall be construed to include, but 7 not by way of limitation, the following amounts expended by the Lessor in connection with the acquisition and financing of the Leased Premises: organization expenses, financing costs, carry charges, legal fees, architects’ fees and reasonable costs and expenses incidental thereto. Upon request of the Lessee, the Lessor agrees to furnish an itemized statement setting forth the amount required to be paid by the Lessee in order to purchase the Leased Premises, or any portion thereof, including, but not limited to all indebtedness incurred on account of the Leased Premises in accordance with the preceding paragraph. Upon the exercise of the option to purchase granted herein, the Lessor will upon payment of the option price deliver, or cause to be delivered, to the Lessee documents conveying to the Lessee, or any entity (including the City) designated by the Lessee, all of the Lessor’s title to the property being purchased, as such property then exists, subject to the following: (i) those liens and encumbrances (if any) to which title to the property was subject when conveyed to the Lessor; (ii) those liens and encumbrances created by the Lessee and to the creation or suffering of which the Lessee consented, and liens for taxes or special assessments not then delinquent; and (iii) those liens and encumbrances on its part contained in this Lease. In the event of purchase of the Leased Premises, or any portion thereof as set forth above, by the Lessee or conveyance of the Leased Premises, or any portion thereof as set forth above, to the Lessee or the Lessee’s designee, the Lessee shall procure and pay for all surveys, title searches, abstracts, title policies and legal services that may be required, and shall furnish at the Lessee’s expense all documentary stamps or tax payments required for the transfer of title. Nothing contained herein shall be construed to provide that the Lessee shall be under any obligation to purchase the Leased Premises, or any portion thereof as set forth above, or under any obligation respecting the creditors, members or security holders of the Lessor. 12.Transfer to Lessee. If the Lessee has not exercised its option to renew in accordance with the provisions of Section 10, and has not exercised its option to purchase the Leased Premises, or any portion thereof, in accordance with the provisions of Section 11, and upon the full discharge and performance by the Lessee of its obligations under this Lease, the Leased Premises, or such portion thereof remaining, shall thereupon become the absolute property of the Lessee, subject to the limitations, if any, on the conveyance of the site for the Leased Premises to the Lessor and, upon the Lessee’s request the Lessor shall execute proper instruments conveying to the Lessee, or to any entity (including the City) designated by the Lessee, all of Lessor’s title to the Leased Premises, or such portion thereof. 13.Defaults. If the Lessee shall default (a) in the payment of any rentals or other sums payable to the Lessor hereunder, or in the payment of any other sum herein required to be paid for the Lessor; or (b) in the observance of any other covenant, agreement or condition hereof, and such default shall continue for ninety (90) days after written notice to correct such default; then, in any or either of such events, the Lessor may proceed to protect and enforce its rights by suit or suits in equity or at law in any court of competent jurisdiction, whether for specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy; or the Lessor, at its option, without further notice, may terminate the estate and interest of the Lessee hereunder, and it shall be lawful for the Lessor forthwith to resume possession of the Leased Premises and the Lessee covenants to surrender the same forthwith upon demand. 8 The exercise by the Lessor of the above right to terminate this Lease shall not release the Lessee from the performance of any obligation hereof maturing prior to the Lessor’s actual entry into possession. No waiver by the Lessor of any right to terminate this Lease upon any default shall operate to waive such right upon the same or other default subsequently occurring. 14.Notices. Whenever either party shall be required to give notice to the other under this Lease, it shall be sufficient service of such notice to deposit the same in the United States mail, in an envelope duly stamped, registered and addressed to the other party or parties at the following addresses: (a) to Lessor: City of South Bend Building Corporation, Attention: President, c/o City Controller, 227 West Jefferson Blvd., Suite 1200, South Bend, Indiana; (b) to Lessee: South Bend Redevelopment Commission, Attention: President, c/o Department of Community Investment, 227 West Jefferson Blvd., Suite 1405, South Bend, Indiana. The Lessor, the Lessee and the Trustee may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent. 15.Successors or Assigns. All covenants of this Lease, whether by the Lessor or the Lessee, shall be binding upon the successors and assigns of the respective parties hereto. 16.Construction of Covenants. All provisions herein contained shall be construed in accordance with the EDC Act and the Redevelopment Act (collectively, the “Act”), and to the extent of inconsistencies, if any, between the covenants and agreements in this Lease and the provisions of the Act, the Act shall be deemed to be controlling and binding upon the Lessor and the Lessee; provided, however, any amendment to the Act after the date hereof shall not have the effect of amending this Lease. 9 IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed for and on their behalf on the date first written above. LESSOR: LESSEE: CITY OF SOUTH BEND BUILDING CORPORATION CITY OF SOUTH BEND, INDIANA, REDEVELOPMENT COMMISSION President President ATTEST: Secretary ATTEST: Secretary 10 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for this City and State, personally appeared ____________________________ and ___________________________, personally known to be the President and Secretary, respectively, of the City of South Bend Building Corporation (the “Building Corporation”), and acknowledged the execution of the foregoing Lease for and on behalf of the Building Corporation. WITNESS my hand and notarial seal this ____day of _______________, 2021. (Written Signature) (Seal) (Printed Signature) Notary Public My Commission expires: My county of residence is: 11 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for this City and State, personally appeared ____________________________ and _____________________________, personally known to be the President and Secretary, respectively, of the South Bend Redevelopment Commission (the “Commission”), and acknowledged the execution of the foregoing Lease for and on behalf of the Commission. WITNESS my hand and notarial seal this ____day of ________, 2021. (Written Signature) (Seal) (Printed Signature) Notary Public My Commission expires: My county of residence is: I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social Security Number in this document, unless required by law. Randolph R. Rompola This instrument was prepared by Randolph R. Rompola, Barnes & Thornburg LLP, 100 North Michigan, Suite 700, South Bend, Indiana 46601. A-1 EXHIBIT A DESCRIPTION OF LEASED PREMISES All of the Building Corporation’s interest in all or a portion of the Leased Premises which consists of (i) a portion of Greenlawn Avenue in the City from its intersection with McKinley Avenue to its intersection with Wall Street, (ii) a portion of Wall Street in the City from its intersection with Twyckenham Drive to its intersection with Greenlawn Avenue, and (iii) a portion of Wall Street in the City from its intersection with Greenlawn Avenue to its intersection with Ironwood Drive, as more particularly described as follows: [Legal Description for the Leased Premises will be added prior to the Recording of the Lease.] B-1 EXHIBIT B ADDENDUM TO LEASE BETWEEN CITY OF SOUTH BEND BUILDING CORPORATION, LESSOR AND SOUTH BEND REDEVELOPMENT COMMISSION, LESSEE THIS ADDENDUM (this “Addendum”), entered into as of this ____ day of _____________, 202__, by and between City of South Bend Building Corporation (the “Lessor”), and South Bend Redevelopment Commission (the “Lessee”); WITNESSETH: WHEREAS, the Lessor entered into a lease with the Lessee dated as of December 1, 2021 (the “Lease”); and WHEREAS, it is provided in the Lease that there shall be endorsed thereon the adjusted rental. NOW, THEREFORE, IT IS HEREBY AGREED, CERTIFIED AND STIPULATED by the parties to the Lease that the adjusted rental is set forth on Appendix I attached hereto. IN WITNESS WHEREOF, the Parties hereto have caused this Addendum to be executed for and on their behalf as of the day and year first above written. LESSOR LESSEE CITY OF SOUTH BEND BUILDING CORPORATION SOUTH BEND REDEVELOPMENT COMMISSION President President ATTEST: Secretary ATTEST: Secretary I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social Security Number in this document, unless required by law. Randolph R. Rompola This instrument was prepared by Randolph R. Rompola Barnes & Thornburg LLP, 100 North Michigan, Suite 700, South Bend, Indiana 46601. B-2 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for this City and State, personally appeared _________________ and ______________________, personally known to be the President and Secretary, respectively, of the City of South Bend Building Corporation (the “Building Corporation”), and acknowledged the execution of the foregoing Addendum to Lease for and on behalf of the Building Corporation. WITNESS my hand and notarial seal this ______ day of ______, 2021. (Written Signature) (Seal) (Printed Signature) Notary Public My Commission expires: My county of residence is: B-3 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for this City and State, personally appeared _________________ and ______________________, personally known to be the President and Secretary, respectively, of the South Bend Redevelopment Commission (the “Commission”), and acknowledged the execution of the foregoing Addendum to Lease for and on behalf of the Commission. WITNESS my hand and notarial seal this ______ day of ______, 2021. (Written Signature) (Seal) (Printed Signature) Notary Public My Commission expires: My county of residence is: B-4 Appendix I to Addendum to Lease Adjusted Rental Schedule Payment Date Total Rental Payment DMS 21245224v2 Redevelopment Commission Agenda Item DATE: November 8, 2021 FROM: Kyle Silveus, Assistant City Engineer SUBJECT: Mishawaka Ave. Survey Funding Source* (circle one) River West; River East; South Side; Douglas Road; West Washington; RDC General *Funds are subject to the City Controller's determination of availability; if funds are unavailable, as solely determined by the City Controller, then the authorization of the expenditure of such funds shall be void and of no effect. Purpose of Request: The request for $62,000 would provide funding for topographic survey for Mishawaka Ave., from the Eddy St. ramps to Emerson Dr. to support upcoming proposed streetscape improvements. The overall project aims to calm traffic by road diet, beautify the corridor, support growth, and set up for future improvements to the roadway interaction between Mishawaka Ave./Sample/Eddy St./Northside Blvd. INTERNAL USE ONLY: Project ID: PROJ 121-072 ; Total Amount – New Project Budget Appropriation $62,000; Total Amount – Existing Project Budget Change (increase or decrease) $62,000; Funding Limits: Engineering: $_____________________; Other Prof Serv Amt $_______________; Acquisition of Land/Bldg (circle one) Amt: $___________; Street Const Amt $________________; Building Imp Amt $_________; Sewers Amt $_________; Other (specify) Amt $ ________________ _________________________Pres/V-Pres ATTEST: __________________Secretary Date: ____________________ APPROVED Not Approved SOUTH BEND REDEVELOPMENT COMMISSION ITEM: 5B1 Page | 2