HomeMy WebLinkAbout1 RDC Packet 10.13.22South Bend Redevelopment Commission
227 West Jefferson Boulevard, Room 1308, South Bend, Indiana
Agenda
Regular Meeting, October 13, 2022 – 9:30 a.m.
http://tiny.cc/RDC_ or BPW Conference Room 13th Floor
1.Roll Call
2.Approval of Minutes
A.Minutes of the Regular Meeting of Thursday, September 22, 2022
3.Approval of Claims
A.Claims Allowance Request 09.20.22
B.Claims Allowance Request 09.27.22
C.Claims Allowance Request 10.11.22
4.Old Business
5.New Business
A.River West Development Area
1.Development Agreement (MarMain)
2.Second Amendment to Development Agreement (Greenleaf Co.)
3.Termination and Release of Deed Covenants (SBCC Development Corp)
4.Authorizing Use of TIF Revenues and Approving Form of Loan Agreement
(Indiana Dinosaur Museum and SBCC Development Corp)
5.First Amendment to Development Agreement (SBCC Development Corp)
6. Updated Tree Nursery Agreement
B.River East Development Area
1.Budget Request (Angela Blvd. Roadway)
2.Budget Request (Downtown to ND Trail)
6.Progress Reports
A.Tax Abatement
B.Common Council
C.Other
7.Next Commission Meeting:
Thursday, October 20, 2022, 9:30 am
ITEM 1
South Be n d
Redevelopment Commission
227 West Jefferson Boulevard, Room 1308, South Bend, IN
SOUTH BEND REDEVELOPMENT COMMISSION
RE-SCHEDULED REGULAR MEETING
September 22, 2022 – 9:30 am
https://tinyurl.com/RDC or BPW Conference Room 13th Floor
Presiding: Marcia Jones, President
The meeting was called to order at 9:30 a.m.
1.ROLL CALL
Members Present: Marcia Jones, President – IP
Troy Warner, Secretary – IP
Eli Wax, Commissioner – IP
Leslie Wesley, Commissioner - V
IP = In Person V = Virtual
Members Absent: Donald Inks, Vice-President
Vivian Sallie, Commissioner
Legal Counsel: Sandra Kennedy, Esq.
Danielle Campbell-Weiss, Esq.
Redevelopment Staff: Mary Brazinsky, Board Secretary
Joseph Molnar, RDC Staff
Others Present: Erik Glavich
Laura Althoff
Chris Dressel
Finn Cavanaugh
Zach Hurst
Charlotte Brach
Conrad Damian
Anne Hayes
Leslie Biek
Rachel Boyles
DCI – IP
DCI – V
DCI – IP
DCI – IP
Engineering – IP
Engineering – V
Resident – V
Sibley Machine – V
Engineering – V
DCI - V
ITEM 2A
South Bend Redevelopment Commission Regular Meeting – September 22, 2022
2. Approval of Minutes
• Approval of Minutes of the Regular Meeting of Thursday, September 8, 2022
Upon a motion by Commissioner Wax, seconded by Secretary Warner, the
motion carried unanimously, the Commission approved the minutes of the
regular meeting of Thursday, September 8, 2022.
3. Approval of Claims
• Claims Submitted for September 6 and September 13, 2022
Upon a motion by Secretary Warner, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved the claims for
September 6 and September 13, 2022, submitted on Thursday, September 22,
2022.
4. Old Business
5. New Business
A. River West Development Area
1. Resolution No. 3558 (Disposition Offering Price 117/119 Lafayette)
Mr. Molnar presented Resolution No. 3558 (Disposition Offering Price 117/119
Lafayette). This Resolution sets the Disposition Offering Price for 117/119
Lafayette Building and the adjacent parking lot. The city acquired the Lafayette
building from delinquent taxes through the county in 2018. The city has put
approximately $1M into the building just to stabilize it which includes a brand-new
roof, repairing the skylight, brick, and masonry repair as well as an improved
drainage system so the building is watertight. There is a significant amount of
renovation that needs to be done inside. While the building sat vacant, there was
a lot of water damage, and it was vandalized several times. The inside needs a
complete overhaul, but the city believes it is a good place to see if there is interest
from private investors.
The RFP staff put together will be presented differently than in previous RFPs.
The appraisal for the building and parking lot is $392,010 which is the average
appraisal price. We will be doing various things to publicize the availability of the
property. On October 18, 2022, the building will be open for tours. Individuals will
have to sign a release for safety. We have extended the bid date to January 26,
2023, to hopefully receive some good bids as it is a beautiful building. In the past
we have done 30-to-60-day RFPs and the feedback received was that is not long
enough for investors to get a good look at properties.
Bids can be submitted in person at the 14th floor office of Community Investment,
mailed or emailed. We have set up a specific email address just for the RFPs.
The RFPs will be sealed until the meeting on January 26, 2023, in which they will
be opened in front of the Commission and read. Staff will then take the RFPs for
South Bend Redevelopment Commission Regular Meeting – September 22, 2022
review and return with a recommendation on March 9, 2023.
The RFP contains background on the building that provides project objectives
along with desired use. There are forms to fill out and we have included helpful
attachments including a full layout of the building from Kil architecture from when
the city purchased the building. We are open to any use as long it fits within
zoning. The city does ask that the RFP include preservation of the skylight. We
feel this is an exceptional feature of the building. The city has set up a specific
website for this and all future RFPs. Commission approval is requested.
Commissioner Wax asked what the city’s intentions were when they acquired the
building and put dollars into it.
Mr. Molnar stated that the city’s intention was to stabilize the building and put it out
to RFP for productive use. The private investor will have to put in a substantial
amount.
Commissioner Wax asked if the city was less focused on return of investment and
more on stabilization of the building.
Mr. Molnar replied yes, the building is a landmark that should be protected.
Secretary Warner noted in 2018 the focus was on stabilizing the building so it
would not have to be torn down.
Mr. Molnar stated that the building was the first dedicated office building (1901)
and we would like to preserve it instead of tearing it down. There is also significant
African American history in the building in which it housed the first African
American lawyer in the city; his name and information is on a monument outside of
the building. The building is historically designated both locally and nationally as
part of the National Washington district.
Commissioner Wax noted that he likes the skylight. He is wondering if there could
be any adjustment to the RFP amount.
Mr. Molnar noted that if the RFPs do not come in at the appraisal amount, the
board has the power to accept or reject any bids.
Secretary Warner asked will investors be able to ask about TIF dollars or tax
abatements?
Mr. Molnar stated that the city is asking investors to be up front about asking for
TIF or tax abatements during the RFP process.
President Jones opened questions to the public.
Matt Barrett, resident asked if the bids stay sealed.
Mr. Molnar stated the bids will be sealed until the January date and opened during
the commission meeting and will be read into the minutes. In March we will have
South Bend Redevelopment Commission Regular Meeting – September 22, 2022
a recommendation to the Commission.
Mr. Barrett asked once the bids are opened can an investor make a higher bid or
do they need to make their best bid.
Mr. Molnar states that yes, investors need to make their best bid by January 26,
2023. Mr. Molnar will be the point of contact to answer any questions from the
investors up until that date. The city will put out a press release and put into the
media casting out a wide net for possible investors. The information will be
available during South Bend’s hosting of the Historic convention.
Upon a motion by Secretary Warner, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved Resolution No. 3558
(Disposition Offering Price 117/119 Lafayette) submitted on Thursday,
September 22, 2022.
2.Approval of Bid Specifications (117/119 Lafayette)
Mr. Molnar presented Approval of Bid Specifications (117/119 Lafayette).
Commission approval is requested.
Upon a motion by Secretary Warner, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved Bid Specifications
(117/119 Lafayette) submitted on Thursday, September 22, 2022.
3.Request to Advertise (117/119 Lafayette)
Mr. Molnar presented a Request to Advertise (117/119 Lafayette). Upon approval,
staff will request the disposition posting in the South Bend Tribune on September
30, 2022, and October 7, 2022. Commission approval is requested.
Upon a motion by Secretary Warner, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved a Request to Advertise
(117/119 Lafayette) submitted on Thursday, September 22, 2022.
4.Temporary Access Agreement (VPA)
Mr. Molnar presented a Temporary Access Agreement (VPA). The Venue Parks
and Arts Department have requested a temporary access agreement to use the
parking lot outside of the old football hall of fame for Best Week Ever which is
happening September 28 through October 2, 2022. Commission approval is
requested.
Secretary Warner noted that the agreement mentions funding.
Mr. Molnar states that there is no money being exchanged for the use of the lot.
Any money for the event will come from VPA.
South Bend Redevelopment Commission Regular Meeting – September 22, 2022
Upon a motion by Secretary Warner, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved a Temporary Access
Agreement (VPA) submitted on Thursday, September 22, 2022.
5.First Amendment to Development Agreement (Sibley)
Mr. Hurst presented the First Amendment to the Development Agreement (Sibley).
There has been an unforeseen condition that necessitates the replacement of the
steel lentils above the existing windows. There is extra brick above the parapet
that is adding too much weight. The steel lentils need to be replaced with the
reduction of some brick. The construction budget had $17k left but the total cost is
$19,240. This amendment will update the funding amount the city will invest, and
the Sibley Center will reimburse the city the remaining balance of $2,240.
Commission approval is requested.
Upon a motion by Secretary Warner, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved the First Amendment to
Development Agreement (Sibley) submitted on Thursday, September 22, 2022.
6.Budget Request (Coal Line Multiuse Trail)
Mr. Dressel presented a Budget Request (Coal Line Multiuse Trail). This is a
budget request in the amount of $300k to build Phase II of the Coal Line Multiuse
project. The construction on Phase II would begin in Spring 2023. Mr. Dressel
presented a PowerPoint to the Commission showing a map of the trail and where
construction has been completed in Phase I. The presentation also showed the
Commission where Phase II would begin work and eventually connect to 933 and
the East Bank Trail. We have added branding and signage along with benches
and bike racks along the trail. Lighting has been integrated within the poles along
the bridgeway. Commission approval is requested.
Secretary Warner asked about security that was talked about on Phase I, will that
be included in Phase II?
Mr. Cavanaugh stated that they installed trail counters and lighting. There are no
cameras installed.
Secretary Warner asked about the safety of the pylons on the bridge.
Mr. Cavanaugh stated that there have been detailed inspections by our engineers
and these details have been passed on to the construction team.
Secretary Warner asked if there has been a discussion connecting the trail to flow
along the North Shore Drive that runs in front of the previous mayor’s home.
Mr. Cavanaugh stated that we have applied for state funding along that stretch,
but we do not have the funding for that yet.
South Bend Redevelopment Commission Regular Meeting – September 22, 2022
Matt Barrett, resident, stated the plan says to include a trail along Angela all the
way up to the old St Joe High School site. And what about the Leeper Park bridge
because that prevents the connection.
Mr. Dressel states that is part of Phase II. We are following the historic rail
corridor. The Leeper Park bridge will be repaired the contract just went through
BPW.
Commissioner Wax asked once completed, how long will the trail be?
Mr. Dressel states the trail will be 1.5.
Upon a motion by Secretary Warner, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved Budget Request (Coal
Line Multiuse Trail) submitted on Thursday, September 22, 2022.
B.Other Development Area
1.TIF Neutralization (2022 Baker Tilly)
Mr. Molnar gave the Commission an overview on the 2022 TIF Neutralization from
Baker Tilly. This item is just for information purposes. The estimated TIF capture
will depend on the 2023 tax rates and the 2023 circuit breaker losses that are
released by the state sometime between January to March of 2023.
6.Progress Reports
A.Tax Abatement
1.Mr. Glavich noted on September 12, 2022, the Common Council approved
a declaratory resolution for a personal property tax abatement to Steel
Warehouse. The facility is located on Tucker Drive. They will be
purchasing new machinery in the amount of $3.7M. This will allow them to
hire 12 new positions and to train existing employees on the new
machinery. Steel Warehouse will be spending $200k to expand their
facility to house the new equipment.
B.Common Council
C.Other
1.Mr. Molnar noted that the Ready Grants were announced including the
expanded Memorial Lifestyle Center for the two blocks South of the
campus received, a little over $11M, the Morris Performing Arts Center
expansion also received funding as well as the Ward Bakery Building
project.
2.Mr. Matt Barrett asked if there were any updates on the Matthews
situation?
3.Mr. Molnar states that he has heard nothing new.
South Bend Redevelopment Commission Regular Meeting – September 22, 2022
4.Mr. Barrett noted that there is another development in Warsaw that was in
the Warsaw Times. There are reports of a failed project involving Mr.
Matthews. It was noted in the Warsaw Redevelopment Commission as
well as the Northeast Indiana Regional Development Authority. There is a
pattern with Mr. Matthews. Mr. Matthews did attend the South Streetscape
public meeting. He chooses not to attend the other meetings he is
requested at which is not a good reflection. Mr. Barrett also noted further
research indicates that on Sycamore Street there was a tax abatement
complete for 2 years, a partial for 5 years in addition there were tax
delinquencies in 2019 and 2020. He believes on behalf of the taxpayers in
the city of South Bend that is a call for action.
7.Next Commission Meeting:
Thursday, October 13, 2022
8.Adjournment
Thursday, September 22, 2022, 10:19 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:Tuesday, September 20, 2022
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-0044341 $61,501.31
GBLN-0000000 $0.00
GBLN-0000000 $0.00
Total:$61,501.31
_______________________________
Daniel Parker, City Controller
The attached claims described above were allowed in the following
total amount at a public meeting on the date stated below:61,501.31$
By:_______________________________
South Bend Redevelopment Commission
Name:
Date:
ITEM 3A
______________________________________________________________
Name:Name:
_______________________________
Name:_______________________________
Name:
_______________________________
Name:
City of South Bend
Department of Administration & Finance
Claims Allowance Request
To:South Bend Redevelopment Commission
From:Daniel Parker, City Controller
Date:Tuesday, September 27, 2022
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-0044661 $350,133.33
GBLN-0000000 $0.00
GBLN-0000000 $0.00
Total:$350,133.33
_______________________________
Daniel Parker, City Controller
The attached claims described above were allowed in the following
total amount at a public meeting on the date stated below:350,133.33$
By:_______________________________
South Bend Redevelopment Commission
Name:
Date:
ITEM 3B
______________________________________________________________
Name:Name:
_______________________________
Name:_______________________________
Name:
_______________________________
Name:
City of South Bend
Department of Administration & Finance
Claims Allowance Request
To:South Bend Redevelopment Commission
From:Daniel Parker, City Controller
Date:Tuesday, October 11, 2022
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-0045349 $19,739.55
GBLN-0000000 $0.00
GBLN-0000000 $0.00
Total:$19,739.55
_______________________________
Daniel Parker, City Controller
The attached claims described above were allowed in the following
total amount at a public meeting on the date stated below:19,739.55$
By:_______________________________
South Bend Redevelopment Commission
Name:
Date:
______________________________________________________________
Name:Name:
_______________________________
Name:_______________________________
Name:
_______________________________
Name:
ITEM 3C
Redevelopment Commission Agenda Item
DATE: 10/11/22
FROM: Erik Glavich
SUBJECT: MarMain (JV), LLC Development Agreement
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Development Agreement for property located at 125 West Marion Street, South
Bend, Indiana 46613
SPECIFICS: The Commission will consider a Development Agreement with MarMain, LLC, which
is the owner of an apartment building at the northeast corner of North Main and West Marion
Streets. MarMain will remodel the building, and this Agreement specifies that (1) the Funding
Amount provided by Redevelopment Commission will not exceed $550,000 and (2) the Private
Investment by the Developer will be no less than $4.5 million. The Developer also agrees to
complete the project by the end of 2024.
Through a Memorandum of Understanding with the South Bend Housing Authority on
September 15, 2022, MarMain agreed to set aside 40% of the units—at least 48 total units—for
use by qualified Section 8 Housing Choice Voucher Holders. This is double the commitment of
20% that MarMain had previously made in April 2022.
Staff recommends approval of this Development Agreement.
INTERNAL USE ONLY: Project Code: _______________________________________________;
Total Amount new/change (inc/dec) in budget: _______________; Break down:
Costs: Engineering Amt: ______________________; Other Prof Serv Amt_________________;
Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________;
Building Imp Amt_________; Sewers Amt_________; Other (specify) Amt: ________________
___________________________________________. Going to BPW for Contracting? Y/N
Is this item ready to encumber now? ____ Existing PO#__________ Inc/Dec $_____________
_________________________Pres/V-Pres
ATTEST: __________________Secretary
Date: ____________________
Approved Not Approved
SOUTH BEND REDEVELOPMENT COMMISSION
ITEM 5A1
September 13
Redevelopment Commission Agenda Item
DATE: 10/11/22
FROM: Erik Glavich
SUBJECT: MarMain (JV), LLC Development Agreement
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Development Agreement for property located at 125 West Marion Street, South
Bend, Indiana 46613
SPECIFICS: The Commission will consider a Development Agreement with MarMain, LLC, which
is the owner of an apartment building at the northeast corner of North Main and West Marion
Streets. MarMain will remodel the building, and this Agreement specifies that (1) the Funding
Amount provided by Redevelopment Commission will not exceed $550,000 and (2) the Private
Investment by the Developer will be no less than $4.5 million. The Developer also agrees to
complete the project by the end of 2024.
Through a Memorandum of Understanding with the South Bend Housing Authority on
September 15, 2022, MarMain agreed to set aside 40% of the units—at least 48 total units—for
use by qualified Section 8 Housing Choice Voucher Holders. This is double the commitment of
20% that MarMain had previously made in April 2022.
Staff recommends approval of this Development Agreement.
INTERNAL USE ONLY: Project Code: _______________________________________________;
Total Amount new/change (inc/dec) in budget: _______________; Break down:
Costs: Engineering Amt: ______________________; Other Prof Serv Amt_________________;
Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________;
Building Imp Amt_________; Sewers Amt_________; Other (specify) Amt: ________________
___________________________________________. Going to BPW for Contracting? Y/N
Is this item ready to encumber now? ____ Existing PO#__________ Inc/Dec $_____________
_________________________Pres/V-Pres
ATTEST: __________________Secretary
Date: ____________________
Approved Not Approved
SOUTH BEND REDEVELOPMENT COMMISSION
Redevelopment Commission Agenda Item
DATE: 10/11/22
FROM: Erik Glavich
SUBJECT: Greenleaf Holdco, LLC Development
Agreement
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Second Amendment to Development Agreement for property located at 3820
West Calvert Street, South Bend, Indiana 46613
SPECIFICS: The Commission will consider a Second Amendment to the Development
Agreement with Greenleaf Holdco, LLC. The Commission on October 22, 2020, entered into an
Agreement that specified that (1) the Funding Amount provided by Commission would be no
more than $500,000 and (2) the Private Investment by the Developer would be no less than
$15.5 million. On October 14, 2021, the agreement was amended to lengthen the Time of
Completion for the project to 24 months from 12 months.
This new Second Amendment would update the Agreement to specify that (1) the Funding
Amount provided by the Commission is increased to $657,000 from $500,000, (2) the
Developer is increasing its investment in the property to $25 million from $15.5 million, and (3)
the Time of Completion for the project is now 36 months.
Staff recommends approval of this Second Amendment.
INTERNAL USE ONLY: Project Code: _______________________________________________;
Total Amount new/change (inc/dec) in budget: _______________; Break down:
Costs: Engineering Amt: ______________________; Other Prof Serv Amt_________________;
Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________;
Building Imp Amt_________; Sewers Amt_________; Other (specify) Amt: ________________
___________________________________________. Going to BPW for Contracting? Y/N
Is this item ready to encumber now? ____ Existing PO#__________ Inc/Dec $_____________
_________________________Pres/V-Pres
ATTEST: __________________Secretary
Date: ____________________
Approved Not Approved
SOUTH BEND REDEVELOPMENT COMMISSION
ITEM 5A2
October 13, 2022
Cross References: Instrument No. 1718969
TERMINATION AND RELEASE
OF DEED COVENANTS
WHEREAS, the City of South Bend, Department of Development, by and through its
governing body, the South Bend Redevelopment Commission (“South Bend”), is the grantor of
certain real property subject to conditions, covenants and reversionary interests (the “Deed
Covenants”) set forth that certain Quit Claim Deed recorded on July 19, 2017 as Instrument
Number 1718969 in the Office of the Recorder of St. Joseph County, Indiana (“Deed”).
WHEREAS, South Bend is the benefitting party of the Deed Covenants.
THEREFORE, South Bend hereby terminates the Deed Covenants, releases all of the
Property described in the Deed from the Deed Covenants, and acknowledges and declares that
the Deed Covenants are of no further force and effect.
The undersigned person executing this Termination and Release of Deed Covenants
represents and certifies that s/he has been fully empowered to execute and deliver this
Termination and Release of Deed Covenants; and that all necessary corporate action for the
making of such release has been taken and done.
[SIGNATURE APPEARS ON FOLLOWING PAGE.]
4870-6470-9425
ITEM 5A3
IN WITNESS WHEREOF, Owner has caused this Termination and Release of Deed
Covenants to be executed this _____ day of ___________, 2022.
OWNER
City of South Bend,
Department of Redevelopment
By:
Name:
Title:
STATE OF INDIANA )
)
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared
, the of the City of South Bend, Department of
Redevelopment and acknowledged the execution of this Agreement for and on behalf of such
entity.
WITNESS my hand and Notarial Seal this _____ day of _______________, 2022.
Signature
Printed NOTARY PUBLIC
My Commission Expires: County of Residence:
____________________ _________________
This instrument was prepared by Annie R. Xie, Ice Miller LLP, One American Square, Suite
2900, Indianapolis, Indiana 46282.
I affirm, under penalties of perjury, that I have taken reasonable care to redact each Social
Security Number in this document, unless required by law. Annie R. Xie
4854-2813-5735.4
LOAN AGREEMENT
AMONG
THE SOUTH BEND CHOCOLATE COMPANY, INC.,
INDIANA DINOSAUR MUSEUM INC.,
AND
CITY OF SOUTH BEND, INDIANA
Dated as of November 1, 2022
ITEM 5A4
i
4854-2813-5735.4
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND EXHIBITS .......................................................................3
Section 1.1. Terms Defined. ....................................................................................................3
Section 1.2. Rules of Interpretation.........................................................................................5
Section 1.3. Exhibits.. .............................................................................................................6
ARTICLE II. REPRESENTATIONS; LOAN OF TIF REVENUES .......................................7
Section 2.1. Representations by City. .....................................................................................7
Section 2.2. Representations by Borrower. .............................................................................7
Section 2.3. Series 2022 Note.. ...............................................................................................9
ARTICLE III. PARTICULAR COVENANTS OF THE BORROWER ..................................10
Section 3.1. Forgiveness of Payment of Loan. .....................................................................10
Section 3.2. RESERVED. .....................................................................................................10
Section 3.3. Continuing Existence and Qualification. ..........................................................10
Section 3.4. Assignment, Sale or Other Disposition of Project. ...........................................10
Section 3.5. Indemnity. .........................................................................................................10
Section 3.6. Issuance of Substitute Notes. ............................................................................10
Section 3.7. Payment of Expenses of Loan. ..........................................................................11
Section 3.8. Reserved. ...........................................................................................................11
Section 3.9. Other Amounts Payable by the Redevelopment Commission. .........................11
Section 3.10. Completion of Project.. .....................................................................................11
Section 3.11. Sale, Substitution, or Lease of the Facilities; Assignment of Loan Agreement.
...........................................................................................................................11
ARTICLE IV. EVENTS OF DEFAULT AND REMEDIES THEREFOR ..............................13
Section 4.1. Events of Default...............................................................................................13
Section 4.2. Remedies Cumulative.. .....................................................................................13
Section 4.3. Delay or Omission Not a Waiver. .....................................................................14
Section 4.4. Waiver of Extension, Appraisement or Stay Laws.. .........................................14
Section 4.5. Remedies Subject to Provisions of Law............................................................14
Section 4.6. Rights of the City. .............................................................................................14
Section 4.7. Waiver of Events of Default.. ...........................................................................14
Section 4.8. Limitation of Liability. ......................................................................................15
Section 4.9. Force Majeure. ..................................................................................................15
ARTICLE V. IMMUNITY ......................................................................................................16
Section 5.1. Immunity. ..........................................................................................................16
ARTICLE VI. SUPPLEMENTS AND AMENDMENTS TO THIS LOAN AGREEMENT ..17
ii
4854-2813-5735.4
Section 6.1. Supplements and Amendments to this Loan Agreement. .................................17
ARTICLE VII. DEFEASANCE .................................................................................................18
Section 7.1. Defeasance. .......................................................................................................18
ARTICLE VIII. MISCELLANEOUS PROVISIONS .................................................................19
Section 8.1. Termination by Borrower.. ................................................................................19
Section 8.2. Dispute Resolution. ...........................................................................................19
Section 8.3. Confidentiality.. ................................................................................................19
Section 8.4. Information Security. ........................................................................................19
Section 8.5. Loan Agreement for Benefit of Parties Hereto. ................................................19
Section 8.6. Severability. ......................................................................................................19
Section 8.7. Limitation on Interest.. ......................................................................................20
Section 8.8. Addresses for Notice and Demands. .................................................................20
Section 8.9. Successors and Assigns. ....................................................................................21
Section 8.10. Counterparts. .....................................................................................................21
Section 8.11. Governing Law..................................................................................................21
Section 8.12. Third-Party Beneficiary. ...................................................................................21
4854-2813-5735.4
LOAN AGREEMENT
This is a LOAN AGREEMENT dated as of November 1, 2022 ("Loan Agreement") among
The South Bend Chocolate Company, Inc. an Indiana corporation duly organized and existing
under the laws of the State of Indiana ("SBCC"), Indiana Dinosaur Museum Inc., an Indiana
nonprofit corporation ("IDM" and jointly and severally with SBCC, the "Borrower"), and CITY
OF SOUTH BEND, INDIANA ("City"), a political subdivision and municipal corporation duly
organized and validly existing under the laws of the State of Indiana.
PRELIMINARY STATEMENT
Indiana Code, Title 36, Article 7, Chapters 11.9, 12 and 14, as in effect on the date the first
series of the Series 2022 Note is funded (collectively, "Act"), have been enacted by the General
Assembly of Indiana.
The Act provides that a political subdivision may make direct loans to users or developers
for the cost of acquisition, construction, or installation of economic development facilities,
including infrastructure improvements, with such loans to be secured by the pledge of secured or
unsecured debt obligations of the users or developers, for diversification of economic development
and promotion of job opportunities in or near the City.
The South Bend Redevelopment Commission ("Redevelopment Commission") adopted a
declaratory resolution on February 23, 1990 establishing the Airport Economic Development Area
and the Airport Economic Development Area Allocation Area No. 1 ("1990 Declaratory
Resolution"), which was effective as of that date and was confirmed by a confirmatory resolution
adopted on June 27, 1990 ("1990 Confirmatory Resolution"). The South Bend Redevelopment
Commission further adopted a declaratory resolution on April 16, 1993 establishing the Sample-
Ewing Development Area and the Sample-Ewing Allocation Area (South Bend Allocation Area
No. 8) ("1993 Declaratory Resolution"), which was effective as of that date and was confirmed by
a confirmatory resolution adopted on May 21, 1993 ("1993 Confirmatory Resolution" and
collectively with the 1990 Declaratory Resolution, the 1990 Confirmatory Resolution, the 1993
Declaratory Resolution and the 1993 Confirmatory Resolution hereinafter referred to as the
"Original Declaratory Resolution"). The Redevelopment Commission on June 19, 2007, adopted
an amending declaratory resolution, as further amended on August 28, 2014 and April 11, 2019
(collectively, as amended, "Amending Declaratory Resolution"), as confirmed by an amending
confirmatory resolution adopted on July 20, 2007, as further amended on November 10, 2014 and
June 13, 2019 (collectively, "Amending Confirmatory Resolution" and collectively with the
Original Declaratory Resolution, the Amending Declaratory Resolution and the Amending
Confirmatory Resolution hereinafter referred to as the "Area Resolution"), removing, transferring,
consolidating, expanding and renaming the consolidated and expanded area the River West
Development Area ("Area"), as an economic development area under IC 36-7-14 and IC 36-7-25;
The Area Resolution approved the economic development plan, as amended ("Plan") for
the Area which Plan contained specific recommendations for economic development in the Area,
and the Area Resolution removed, transferred, consolidated, expanded and renamed consolidated
and expanded allocation area the River West Development Area Allocation Area No. 1 in
accordance with IC 36-7-14-39 ("Allocation Area") for the purpose of capturing property taxes
2
4854-2813-5735.4
generated from the incremental assessed value of real and depreciable personal property located
in the Allocation Area ("Tax Increment").
The City, upon finding that the Facilities (as hereinafter defined) and the proposed
financing of the construction and reconstruction of the Project (as hereinafter defined) to support
the Facilities will create additional employment opportunities in the City; will benefit the health,
safety, morals, and general welfare of the citizens of the City and the State of Indiana; and will
comply with the purposes and provisions of the Act, adopted an ordinance approving the proposed
financing.
In order to encourage economic development and promote significant opportunities for
gainful employment, the City intends to fund a loan to the Borrower in an aggregate amount not
to exceed $2,700,000 ("Loan"), to be evidenced by a Borrower’s Taxable Economic Development
Revenue Note, Series 2022A and B pursuant to the provisions of this Loan Agreement, to finance
a portion of the cost of the Project to support the Facilities in or physically connected to the Area.
This Loan Agreement provides for the payment of the Series 2022 Note by the Borrower
and further provides for the Borrower's repayment obligation to be evidenced by a Series 2022
Note by each Borrower entity receiving funding to the extent of such funding received,
substantially in the form attached hereto as Exhibit A-1 and Exhibit A-2.
Subject to the further provisions of this Loan Agreement including Section 3.1, the Loan
will be payable solely out of the payments to be made by the Borrower on the Series 2022 Note.
In consideration of the premises, the Loan, the acceptance of the Series 2022 Note by the
City, and of other good and valuable consideration, the receipt whereof is hereby acknowledged,
the Borrower has executed and delivered this Loan Agreement.
This Loan Agreement is executed upon the express condition that if the Borrower shall pay
or cause to be paid all indebtedness hereunder (unless the Series 2022 Note is forgiven pursuant
to Section 3.1 hereof) and shall keep, perform and observe all and singular the covenants and
promises expressed in the Series 2022 Note, any other Notes (as hereinafter defined) and this Loan
Agreement to be kept, performed and observed by the Borrower, then this Loan Agreement and
the rights hereby granted shall cease, determine and be void; otherwise to remain in full force and
effect.
The Borrower and the City hereby covenant and agree as follows:
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4854-2813-5735.4
ARTICLE I.
DEFINITIONS AND EXHIBITS
Section 1.1. Terms Defined. As used in this Loan Agreement, the following terms shall
have the following meanings unless the context clearly otherwise requires:
"Act" means, collectively, Indiana Code 36-7-11.9, 12 and 14, as in effect on the date the
first series of the Series 2022 Note is funded.
"Allocation Area" means River West Development Area No. 1.
"Area" means the River West Development Area.
"Authorized Representative" means, with respect to the Borrower, Mark Tarner or any
other person certified by the President of the Borrower to be the Borrower's Authorized
Representative and, with respect to the City, the Executive Director of the Department of
Community Investment or any other person certified by the Mayor of the City to be the City’s
Authorized Representative.
"Authorizing Resolution" means Resolution No. __-__ adopted by the South Bend
Redevelopment Commission on October 13, 2022, authorizing the use of TIF Revenues on hand,
or to be on hand, to fund the Series 2022 Note.
"Borrower" means SBCC and IDM or any affiliates, successors and/or assigns thereto
permitted under Section 3.3 hereof.
"Business Day" means any day other than a Saturday, Sunday or holiday, on which
commercial banks in the City are open for conducting substantially all of their banking activities.
"City" means South Bend, Indiana, or any successor thereto or assign thereof.
"Commission" means the South Bend Economic Development Commission.
"Counsel" means an attorney duly admitted to practice law before the highest court of any
state, and, without limitation, may include legal counsel for either the City or the Borrower.
"Facilities" shall have the meaning set forth in the Project definition below.
"Loan" means the loan by the City to the Borrower.
"Note" or "Notes" means the Series 2022 Note, and any other note executed by the
Borrower in connection with the Series 2022 Note, and any notes issued in exchange therefor
pursuant (and subject) to Section 3.7 hereof.
"Note Counsel" means Ice Miller LLP or another a nationally recognized firm of municipal
bond attorneys acceptable to the City and the Borrower.
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4854-2813-5735.4
"Outstanding Bonds" means the Redevelopment Commission’s outstanding Indiana Bond
Bank Special Program Bonds, Series 2011A (TIF A), Indiana Bond Bank Special Program Bonds,
Series 2011A (TIF B), 2006 Main/Colfax Garage Lease, South Bend Redevelopment Authority
Lease Rental Revenue Bonds of 2015 (Refunding 2008), South Bend Redevelopment Authority
Lease Rental Revenue Refunding Bonds, Series 2013 (Refunding 2008), South Bend
Redevelopment Authority Lease Rental Revenue Bonds of 2015, Redevelopment District Bonds,
Series 2018, Taxable Economic Development Revenue Bonds, Series 2017 (Eddy Street Phase II),
South Bend Redevelopment Authority Lease Rental Revenue Bonds of 2019 (Double Tracking
Project), Taxable Economic Development Tax Increment Revenue Bonds, Series 2020
(Community Education Center Project), Building Corporation First Mortgage Revenue Refunding
Bonds, Series 2012 (Police and Fire Station Projects) and any bonds issued in the future on a parity
therewith.
"Project" means the development, construction, renovation, and equipping of three (3)
buildings totaling approximately 90,434 square feet of attraction, retail, restaurant, visitor center
and tour-able chocolate factory space ("Improvements") on real estate commonly known as 24762
and 24820 U.S. Highway 20, South Bend, Indiana 46628 ("Land" and together with the
Improvements, the "Facilities"), along with its surrounding acreage to create a year-around
attraction and destination for City residents and visitors and to support the development of
Continental Divide Trail, all on the City’s westside in or physically connected to the Area.
"Project Costs" with respect to the Project shall mean any and all costs permitted by the
Act including, but not limited to:
(i)the "Note Issuance Costs," namely the reasonable third-party costs, fees and
expenses incurred or to be incurred by the City in connection with the Loan, the reasonable
fees of disbursements of the City's municipal advisor, application fees and expenses,
publication costs, the filing and recording fees in connection with any necessary filings or
recordings or to perfect the lien thereof, the out-of-pocket costs of the City, the reasonable
fees and disbursements of Counsel to the City, the reasonable fees and expenses of Note
Counsel, the costs of preparing or printing the Series 2022 Note and the documentation
supporting the Loan, the costs of reproducing documents and any other costs of a similar
nature reasonably incurred;
(ii)design costs and other expenses directly related to the construction and
equipping of the Project;
(iii)the cost of insurance of all kinds that may be required or necessary in
connection with the construction or equipping of the Project;
(iv)all costs and expenses which Borrower shall be required to pay, under the
terms of any contract or contracts (including the architectural and engineering,
development, and legal services with respect thereto), for the construction of the Project;
and
(v)any sums required to reimburse the Borrower for advances made subsequent
to the date the first series of the Series 2022 Note is funded for any of the above items or
5
4854-2813-5735.4
for any other costs previously incurred and for work done by Borrower which are properly
chargeable to the Project.
"Redevelopment Commission" means the South Bend Redevelopment Commission.
"Series 2022 Note" means the Series 2022A Note and Series 2022B Note of each Borrower
in the aggregate maturity amounts of $2,700,000 in substantially the forms attached hereto as
Exhibit A-1 and Exhibit A-2 which will be issued and delivered by the Borrower to the City to
evidence the Loan in the respective amounts due by IDM and SBCC and any Note issued in
exchange for the Series 2022 Note pursuant to Section 3.7 hereof. As set forth in Section 2.2(i)
hereof, the Series 2022 Note will be drawn in an aggregate amount not to exceed $2,700,000 as
set forth in Section 2.2(i).
"Series 2022 Note A" means the Series 2022 Note delivered by IDM in the form attached
hereto as Exhibit A-1 in the maximum amount of [$1,700,000].
"Series 2022 Note B" means the Series 2022 Note delivered by SBCC in the form attached
hereto as Exhibit A-2 in the maximum amount of [$1,000,000].
"State" means the State of Indiana.
"Tax Increment" has the meaning set forth in the Recitals.
"Written Request" means a request in writing from an authorized representative of the party
making the request.
Section 1.2. Rules of Interpretation. For all purposes of this Loan Agreement, except as
otherwise expressly provided, or unless the context otherwise requires:
(a)"This Loan Agreement" means this instrument as originally executed and as it may
from time to time be supplemented or amended pursuant to the applicable provisions hereof.
(b)All references in this instrument to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as
originally executed. The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Loan Agreement as a whole and not to any particular Article, Section or other
subdivision.
(c)The terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular and the singular as well as the plural.
(d)All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as consistently applied.
(e)The terms defined elsewhere in this Loan Agreement shall have the meanings
therein prescribed for them.
6
4854-2813-5735.4
Section 1.3. Exhibits. The following Exhibits are attached to and by reference made a
part of this Loan Agreement.
Exhibit A-1. Form of Series 2022A Note of IDM
Exhibit A-2. Form of Series 2022B Note of SBCC
(End of Article I)
7
4854-2813-5735.4
ARTICLE II.
REPRESENTATIONS; LOAN OF TIF REVENUES
Section 2.1. Representations by City. The City represents and warrants that:
(a) The City is a political subdivision duly organized and validly existing under the
laws of the State. Under the provisions of the Act, the City has been authorized by action of its
governing body to enter into the transactions contemplated by this Loan Agreement and to carry
out its obligations hereunder.
(b) The City agrees to make the Loan for the purpose of financing a portion of the
construction or reconstruction of the Project for the benefit of the Borrower, to benefit the health,
safety, morals and general welfare of the citizens of the City, increase economic well-being of the
State, promote job opportunities and attract major new businesses.
Section 2.2. Representations by Borrower. Borrower represents and warrants that:
(a) IDM is a nonprofit corporation duly incorporated under the laws of the State of
Indiana, validly exists and authorized to do business under the laws of the State, is not in violation
of any provision of its Articles of Incorporation and Bylaws, has not received notice and has no
reasonable grounds to believe that it is in violation of any laws in any manner material to its ability
to perform its obligations under this Loan Agreement and the Series 2022A Note, has the power
to enter into and to perform its obligations under this Loan Agreement and the Series 2022A Note,
and has duly authorized the execution and delivery of this Loan Agreement and the Series 2022A
Note by appropriate corporate action.
(b) SBCC is a corporation duly incorporated under the laws of the State of Indiana,
validly exists and authorized to do business under the laws of the State, is not in violation of any
provision of its Articles of Incorporation and Bylaws, has not received notice and has no reasonable
grounds to believe that it is in violation of any laws in any manner material to its ability to perform
its obligations under this Loan Agreement and the Series 2022B Note, has the power to enter into
and to perform its obligations under this Loan Agreement and the Series 2022B Note, and has duly
authorized the execution and delivery of this Loan Agreement and the Series 2022B Note by
appropriate corporate action.
(c) The Borrower anticipates creating up to approximately 144 new full time job
opportunities. The Borrower and its affiliates anticipate causing a total investment of up to
approximately $13,500,000 in real property (exclusive of land costs) and $1,900,000 in
depreciable personal property.
(d) All of the proceeds from the Series 2022 Note (including any income earned on the
investment of such proceeds) provided to the Borrower will be used solely for Project Costs.
(e) The Borrower intends to develop, construct and operate or cause the Facilities to
be developed, constructed and operated as an economic development facility under the Act until
the expiration or earlier termination of this Loan Agreement as provided herein, unless the
Borrower has sold or otherwise transferred the Facilities to a Surviving Corporation (as hereinafter
8
4854-2813-5735.4
defined) in accordance with Section 3.3 or assigned this Loan Agreement in accordance with
Section 3.11 of this Loan Agreement.
(f) Neither the execution and delivery of this Loan Agreement, the consummation of
the transactions contemplated hereby including execution and delivery of the Series 2022 Note nor
the fulfillment of or compliance with the terms and conditions of this Loan Agreement, will
contravene the Borrower's Articles of Incorporation or any law or any governmental rule,
regulation or order presently binding on the Borrower or conflicts with or results in a breach of the
terms, conditions or provisions of any agreement or instrument to which Borrower is now a party
or by which it is bound, or constitutes a default under any of the foregoing, or results in the creation
or imposition of any liens, charges, or encumbrances whatsoever upon any of the property or assets
of Borrower under the terms of any instrument or agreement.
(g) The execution, delivery and performance by the Borrower of this Loan Agreement
and the Series 2022 Note do not require the consent or approval of the giving of notice to, the
registration with, or the taking of any other action in respect of, any federal, state or other
governmental authority or agency, not previously obtained or performed.
(h) Assuming the due authorization, execution and delivery thereof by the other parties
thereto, this Loan Agreement and the Series 2022 Note have been duly executed and delivered by
the Borrower and constitute the legal, valid and binding agreements of the Borrower, enforceable
against the Borrower in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights in
general.
(i) No event has occurred and is continuing which with the lapse of time or the giving
of notice would constitute an event of default under this Loan Agreement or the Series 2022 Note.
(j) Upon receipt by the City of evidence from the lender of Borrower that Borrower
has secured and closed additional funding that when combined with the Loan is sufficient to
complete the construction of the Facilities, (1) IDM may draw, under the Series 2022A Note, up
to [$1,700,000], for the purpose of paying (or reimbursing IDM) for improvements, equipment,
exhibit or other site or infrastructure costs necessary or advisable for IDM to commence operations
and open at the Project site (“IDM Opening”) and (2) SBCC may draw, under the Series 2022B
Note, up to [$1,000,000], for the purpose of paying (or reimbursing SBCC) for tenant
improvements, equipment, and other site or infrastructure other costs necessary or advisable for
SBCC to commence operations at the Project site, including but not limited to the opening the
anticipated retail, restaurant, visitors and exhibit areas (“SBCC Opening”). Upon the written
request of an Authorized Representative of Borrower, funds under a Series 2022 Note shall be
disbursed from the City to the Borrower pursuant to payment applications that list the vendor, the
dollar amount and the description of the Project Costs (a “Pay Application”), which funds shall be
disbursed to Borrower within thirty (30) days of the City’s receipt of a complete Pay Application
in a form reasonably acceptable to the City and the availability of any supporting documentation
reasonably requested by the City to properly review the Pay Application and confirm the Project
Costs. In no event shall the aggregate draws exceed the actual cost of the Project. Upon (i) the
completion of the Facilities and (ii) the IDM Opening, as evidenced by an Affidavit of Completion
executed by IDM and accepted by the City, the Series 2022A Note shall be considered forgiven.
9
4854-2813-5735.4
Upon (i) the completion of the Facilities and (ii) the SBCC Opening, as evidenced by an Affidavit
of Completion executed by SBCC and accepted by the City, the Series 2022B Note shall be
considered forgiven.
Section 2.3. Series 2022 Note. Concurrently with the execution and delivery hereof, the
City is authorizing the Loan to the Borrower and will fund each series of the Loan at such time or
times as the representation in Section 2.2(j) has been met. The Loan is being evidenced by the
execution and delivery by the Borrower of the Series 2022 Note substantially in the form attached
hereto as Exhibit A-1 and Exhibit A-2.
(End of Article II)
4879-5512-6071.2
RESOLUTION NO. _____
RESOLUTION OF THE SOUTH BEND REDEVELOPMENT
COMMISSION AUTHORIZING USE OF TIF REVENUES AND
APPROVING FORM OF LOAN AGREEMENT
WHEREAS, the South Bend Redevelopment Commission (the “Redevelopment
Commission”), the governing body of the City of South Bend, Indiana (“City”), Department of
Redevelopment (the “Department”) exists and operates under the provisions of the
Redevelopment of Cities and Towns Act of 1953 which has been codified in Indiana Code 36-7-
14, as amended from time to time (the “Act”); and
WHEREAS, the Redevelopment Commission adopted a declaratory resolution on
February 23, 1990 establishing the Airport Economic Development Area and the Airport
Economic Development Area Allocation Area No. 1 ("1990 Declaratory Resolution"), which
was effective as of that date and was confirmed by a confirmatory resolution adopted on June 27,
1990 ("1990 Confirmatory Resolution");
WHEREAS, the Redevelopment Commission adopted a declaratory resolution on
April 16, 1993 establishing the Sample-Ewing Development Area and the Sample-Ewing
Allocation Area (South Bend Allocation Area No. 8) ("1993 Declaratory Resolution"), which
was effective as of that date and was confirmed by a confirmatory resolution adopted on May 21,
1993 ("1993 Confirmatory Resolution");
WHEREAS, the 1990 Declaratory Resolution, the 1990 Confirmatory Resolution, the
1993 Declaratory Resolution and the 1993 Confirmatory Resolution are hereinafter collectively
referred to as the "Original Declaratory Resolution";
WHEREAS, the Redevelopment Commission on June 19, 2007, adopted an amending
declaratory resolution, as further amended on August 28, 2014 and April 11, 2019 (collectively,
as amended, "Amending Declaratory Resolution"), as confirmed by an amending confirmatory
resolution adopted on July 20, 2007, as further amended on November 10, 2014 and June 13,
2019 (collectively, "Amending Confirmatory Resolution"), removing, transferring,
consolidating, expanding and renaming the consolidated and expanded area the River West
Development Area ("Area"), as an economic development area under IC 36-7-14 and IC 36-7-
25;
WHEREAS, the Original Declaratory Resolution, the Amending Declaratory Resolution
and the Amending Confirmatory Resolution are hereinafter collectively referred to as the "Area
Resolution";
WHEREAS, the Area Resolution approved the economic development plan, as amended
("Plan") for the Area which Plan contained specific recommendations for economic development
in the Area, and the Area Resolution removed, transferred, consolidated, expanded and renamed
consolidated and expanded allocation area the River West Development Area Allocation Area
No. 1 in accordance with IC 36-7-14-39 ("Allocation Area") for the purpose of capturing
4879-5512-6071.2 - 2 -
property taxes generated from the incremental assessed value of real and depreciable personal
property of designated taxpayers located in the Allocation Area ("Tax Increment");
WHEREAS, The South Bend Chocolate Company, Inc., an Indiana corporation
("SBCC"), the Indiana Dinosaur Museum Inc., an Indiana nonprofit corporation ("IDM") or an
affiliate thereof (IDM, SBCC and any applicable affiliate of either are together referred to
collectively as "Borrower") has proposed the development, construction, renovation, and
equipping of three (3) buildings totally approximately 90,434 square feet of attraction, retail,
restaurant, visitor center and tour-able chocolate factory space ("Improvements") on real estate
commonly known as 24762 and 24820 U.S. Highway 20, South Bend, Indiana 46628 ("Land"
and together with the Improvements, the "Facilities"), along with its surrounding acreage to
create a year-around attraction and destination for City residents and visitors and to support the
development of Continental Divide Trail, all on the City’s westside in or physically connected to
the Allocation Area (collectively, the "Project");
WHEREAS, the Commission has determined that the Project will: (i) assist in the
creation of significant business enterprises in the Area; (ii) bring additional capital investment to
the Area; (iii) be of public utility and benefit to the City and its citizens; (iv) strengthen the
economic well-being of the Area; and (v) encourage additional growth in the Area;
WHEREAS, the Commission has determined that the hereinafter defined Project is
included in the current Plan and the use of Tax Increment to finance the Project is appropriate
under the Plan;
WHEREAS, the Commission is authorized to enter into an agreement with the Borrower
to provide the incentives that will induce the Borrower to complete the Project and create
approximately 144 net new full-time jobs, thus strengthening the economic well-being of the
Area and encouraging additional growth;
WHEREAS, the City has the general corporate power to promote economic development
and to make direct loans to providers of economic development facilities, with the loans to be
secured by the pledge of secured or unsecured debt obligations of the users or developers;
WHEREAS, the Commission is a department of the City charged with the duties and
purposes of promoting the use of land in a manner that best serves the interests of the City,
promoting significant opportunities for gainful employment and creating significant businesses
enterprises in the City;
WHEREAS, funding a loan to the Borrower in the amount not to exceed $2,700,000
("Loan"), to be evidenced by the Borrower's Taxable Economic Development Revenue Note,
Series 2022 (South Bend Chocolate Destination Project) ("Series 2022 Note"), entering into the
hereinafter defined Loan Agreement and funding the Loan to induce the Borrower to construct
the Facilities in the Area fosters and encourages economic development, promotes the use of the
Project property in a manner that best serves the interest of the City and its citizens, promotes
significant opportunities for gainful employment and helps create significant business enterprises
in the City;
WHEREAS, the City is funding the Loan to the Borrower pursuant to a Loan Agreement,
dated as of the first day of the month in which the Series 2022 Note is issued ("Loan
4879-5512-6071.2 - 3 -
Agreement") between the Borrower and the City for the financing of the Project in or physically
connected to the Area;
WHEREAS, the Commission will use the Tax Increment on hand and to be on hand in
the allocation fund for the Allocation Area to fund the Loan, which obligation is junior and
subordinate to the payment of debt service on the Commission’s outstanding Indiana Bond Bank
Special Program Bonds, Series 2011A (TIF A), Indiana Bond Bank Special Program Bonds,
Series 2011A (TIF B), 2006 Main/Colfax Garage Lease, South Bend Redevelopment Authority
Lease Rental Revenue Bonds of 2015 (Refunding 2008), South Bend Redevelopment Authority
Lease Rental Revenue Refunding Bonds, Series 2013 (Refunding 2008), South Bend
Redevelopment Authority Lease Rental Revenue Bonds of 2015, Redevelopment District Bonds,
Series 2018, Taxable Economic Development Revenue Bonds, Series 2017 (Eddy Street Phase
II), South Bend Redevelopment Authority Lease Rental Revenue Bonds of 2019 (Double
Tracking Project), Taxable Economic Development Tax Increment Revenue Bonds, Series 2020
(Community Education Center Project), Building Corporation First Mortgage Revenue
Refunding Bonds, Series 2012 (Police and Fire Station Projects) and any bonds issued in the
future on a parity therewith (collectively, "Outstanding Bonds"); and
WHEREAS, in order to finance the Project, the Commission has determined that it is in
the best interest of the City and its residents to fund the Loan to the Borrower to enable the
Borrower to pay a portion of the costs of the Project;
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND
REDEVELOPMENT COMMISSION THAT:
Section 1. The Commission hereby finds that authorizing the use of Tax Increment in
an amount not to exceed $2,700,000 to fund the Loan to finance a portion of the costs of the
Project will help accomplish the Plan for the Area and will promote economic development of
the City.
Section 2. The Commission hereby irrevocably authorizes the use of Tax Increment
to fund the Loan evidenced by the Series 2022 Note in an amount not to exceed $2,700,000 for
the financing of a portion of the costs of the Project pursuant to the Loan Agreement and the
terms and conditions set forth therein with full funding and the construction of the Facilities,
expected to be completed no later than June 30, 2024.
Section 3. The Commission hereby approves the form of Loan Agreement and
authorizes the President or her designee to negotiate, finalize and execute, and the Secretary to
attest, the Loan Agreement and any and all financing documents that counsel determines is
required to effectuate the Loan as contemplated herein.
Section 4. This resolution shall be effective upon passage.
Signature Page Follows
Resolution No. _____________ adopted October 13, 2022.
4879-5512-6071.2
-4 -
SOUTH BEND REDEVELOPMENT COMMISSION
__________________________________________
Marcia Jones, President
Attest:
___________________________
Troy Warner, Secretary
10
4854-2813-5735.4
ARTICLE III.
PARTICULAR COVENANTS OF THE BORROWER
Section 3.1. Forgiveness of Payment of Loan. To the extent the applicable
representations and conditions in Section 2.2(j) are met, payment on the respective Series 2022
Note shall be forgiven immediately and the respective Series 2022 Note shall be considered paid
and of no further force or effect. If the representation in Section 2.2(j) is not met, the Loan shall
remain in effect and be payable upon the maturity date set forth in each Section 2022 Note.
Section 3.2. RESERVED.
Section 3.3. Continuing Existence and Qualification. The Borrower covenants that so
long as any Note is outstanding, it (a) will maintain in good standing its corporate existence and
qualification to do business in the State, and (b) will not (1) dissolve or otherwise dispose of all or
substantially all of its assets and (2) consolidate with or merge into another entity or permit one or
more other entities to consolidate with or merge into it; provided that the Borrower may, without
violating its agreement contained in this Section, consolidate with or merge into another
corporation or other entity, or permit one or more other corporations or other entities to consolidate
with or merge into it, or sell or otherwise transfer to another corporation or entity all or
substantially all of its assets as an entirety and thereafter dissolve, provided the surviving, resulting
or transferee entity (such corporation being hereinafter called the "Surviving Corporation") (if
other than the Borrower) expressly accepts, agrees and assumes in writing to pay and perform all
of the obligations of the Borrower herein and be bound by all of the agreements of the Borrower
contained in this Loan Agreement to the same extent as if the Surviving Corporation had originally
executed this Loan Agreement, and the Surviving Corporation is an Indiana corporation or is a
foreign corporation or partnership, trust or other person or entity organized under the laws of one
of the states of the United States and is qualified to do business in the State of Indiana as a foreign
corporation or partnership, trust or other person or entity.
Section 3.4. Assignment, Sale or Other Disposition of Project. Until the Loan is repaid
(or deemed forgiven) in full, any sale, lease or other disposition of the Facilities or any portion
thereof is subject to the conditions of Section 3.11 hereof.
Section 3.5. Indemnity. The Borrower will pay, protect, defend, indemnify and save the
City, the Commission and the Redevelopment Commission harmless from and against, all
liabilities, losses, damages, costs, expenses (including attorneys' fees and expenses of the City),
causes of actions, suits, claims, demands and judgments of any nature arising from or relating to
the Project, provided, that the liability of Borrower under this Section 3.5 shall be limited to the
amount of the Loan actually received by Borrower as of the date of the alleged breach of the terms
of this Loan Agreement. If any proceeding is instituted for which indemnity may be sought under
this Section 3.5, the party that may seek such indemnity shall notify the Borrower and the City in
writing in a timely manner to allow the Borrower to defend any action or claim in such proceeding.
Section 3.6. Issuance of Substitute Notes. Upon the surrender of any Note, the Borrower
will execute and deliver to the holder thereof a new Note dated the date of the Note being
surrendered but with appropriate notations thereon to reflect payments of principal already paid
11
4854-2813-5735.4
on such Note; provided, however, that there shall never be outstanding at any one time more than
one Note of any one series.
Section 3.7. Payment of Expenses of Loan. The Note Issuance Costs (as defined under
"Project Costs" in Article I hereof) will be paid by the Borrower on the date the first series of the
Loan is funded.
Section 3.8. Reserved.
Section 3.9. Other Amounts Payable by the Redevelopment Commission. The
Redevelopment Commission covenants and agrees to pay the following:
(a)All reasonable out-of-pocket costs incurred by the City incident to the payment of
the Series 2022 Note as the same become due and payable.
(b)An amount sufficient to reimburse the City and Commission for all expenses
reasonably incurred by the City under this Loan Agreement and in connection with the
performance of its obligations under this Loan Agreement.
(c)All reasonable expenses incurred in connection with the enforcement of any rights
under this Loan Agreement by the City.
Section 3.10. Completion of Project. The Borrower agrees that it will use reasonable
efforts to cause to be made, executed, acknowledged and delivered any contracts, orders, receipts,
writings and instructions with any other persons, firms, corporations or partnerships and in general
do all things which may be requisite or proper, all for constructing and completing the Project, to
the extent permitted by law, on or about June 30, 2024.
If the moneys comprising the Loan should not be sufficient to pay in full the costs of the
construction of the Project, the Borrower agrees, for the benefit of the City and to fulfill the
purposes of the Act, to use commercially reasonable efforts to cause the completion of the
construction of the Project and to pay or cause to be paid that portion of the costs therefor as may
be in excess of the moneys available therefor. The City does not make any warranty, either express
or implied, that the moneys will be available for payment of the costs of the construction of the
Project, will be sufficient to pay all the costs which will be incurred in that connection. The
Borrower shall not be entitled to any reimbursement therefor from the City, nor shall it be entitled
to any diminution in or abatement or postponement of the amounts payable hereunder or under the
Series 2022 Note.
Section 3.11. Sale, Substitution, or Lease of the Facilities; Assignment of Loan
Agreement. The Borrower, subject to the written consent of the City (which consent shall not be
unreasonably withheld, conditioned or delayed), may sell, lease or transfer or otherwise dispose of
the Facilities or any portion thereof only if the sale, lease or transfer or other disposition shall not
relieve the Borrower from liability from the performance of all of the obligations of this Loan
Agreement, except as permitted by Section 3.4 hereof, unless the transferee accepts, agrees and
assumes in writing to pay and perform all of the obligations of the Borrower herein and be bound
by all of the agreements of the Borrower contained in this Loan Agreement to the same extent as
if the transferee had originally executed this Loan Agreement. Notwithstanding the foregoing,
12
4854-2813-5735.4
Borrower may assign this Loan Agreement to an Affiliate (as defined below) or in connection with
any merger, reorganization, sale of all or substantially all of our assets or any similar transaction.
This Loan Agreement will be binding upon, inure to the benefit of, and be enforceable by the
parties and their respective successors and assigns. ‘Affiliate’ as used herein means (i) any entity
that directly or indirectly controls, is controlled by, or is under common control with Borrower or
(ii) in which SBCC Development Corp. is the owner of 51% or more of the direct or indirect
beneficial interests and/or is directly or indirectly controlled, controlling or under common control
with Mark Tarner. By way of clarification, notwithstanding any provision in this Agreement to
the contrary the making of the Loan (and the forgiveness of the Note) under the provisions of this
Agreement shall not be contingent upon the Borrower having commenced or completed any
particular portions of Facilities by the date of the Loan (or the date of forgiveness of the Note)
provided Borrower has otherwise performed its applicable obligations with respect to the Project.
(End of Article III)
13
4854-2813-5735.4
ARTICLE IV.
EVENTS OF DEFAULT AND REMEDIES THEREFOR
Section 4.1. Events of Default. (a) The occurrence and continuance of any of the
following events shall constitute an "event of default" hereunder:
(i)Failure of the Borrower to observe and perform any covenant, condition or
provision of this Loan Agreement for a period of one-hundred twenty (120) days after
written notice, specifying such failure and requesting that it be remedied, given to the
Borrower by the City, unless (i) the nature of the default is such that it cannot be remedied
within the one-hundred twenty (120) day period, (ii) the Borrower institutes corrective
action within the one-hundred twenty (120) day period and (iii) the Borrower diligently
pursues such action until the default is remedied.
(ii)Failure of the City to fund all or any series of the Loan in accordance with
this Loan Agreement for a period of thirty (30) days after the dates set forth herein and
receipt of written notice, specifying such failure and requesting that it be remedied, given
to the City by the Borrower, unless (i) the City institutes corrective action within the thirty
(30) day period and (ii) the City diligently pursues such action until the default is remedied
provided such remedy shall occur no less than sixty (60) days after notice is received.
(b)Subject to the further provisions of this Article IV, during the occurrence and
continuance of any event of default hereunder, the City or Borrower, as the case may be, shall have
the rights and remedies hereinafter set forth in addition to any other remedies herein or by law
provided:
(i)Right to Bring Suit, Etc. The City or Borrower, with or without entry,
personally or by attorney, may proceed to protect and enforce its rights by a suit or suits in
equity or at law, whether for damages or for the specific performance of any covenant or
agreement contained in the Series 2022 Note or this Loan Agreement, or in aid of the
execution of any power herein granted, or for the enforcement of any other appropriate
legal or equitable remedy, as the City or Borrower shall deem most effectual to protect and
enforce any of its rights or duties hereunder; provided, however that all reasonable costs
incurred by the City or Borrower under this Article shall be paid to the City or Borrower
by the Borrower or City, respectively, on demand.
(ii)Waiver of Events of Default. If after any event of default occurs and prior
to the City or Borrower exercising any of the remedies provided in this Loan Agreement,
the Borrower or City, as the case may be, will have completely cured such default or the
City or Borrower has waived such default, then in every case such default will be waived,
rescinded and annulled by the City or Borrower by written notice given to the Borrower or
City. No such waiver, annulment or rescission will affect any subsequent default or impair
any right or remedy consequent thereon.
Section 4.2. Remedies Cumulative. No remedy herein conferred upon or reserved to the
City or Borrower is intended to be exclusive of any other remedy or remedies provided herein. The
14
4854-2813-5735.4
remedies set forth in this Section are the sole and exclusive remedies of the City against Borrower
under this Loan Agreement.
Section 4.3. Delay or Omission Not a Waiver. No delay or omission of the City or
Borrower to exercise any right or power accruing upon any event of default shall impair any such
right or power, or shall be construed to be a waiver of any such event of default or an acquiescence
therein.
Section 4.4. Waiver of Extension, Appraisement or Stay Laws. To the extent permitted
by law, neither the Borrower nor the City will during the continuance of any event of default
hereunder insist upon, or plead, or in any manner whatever claim or take any benefit or advantage
of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants and terms of performance of this Loan Agreement; and the Borrower and City
hereby expressly waive all benefits or advantage of any such law or laws and covenants not to
hinder, delay or impede the execution of any power herein granted to the City or Borrower,
respectively, but to suffer and permit the execution of every power as though no such law or laws
had been made or enacted.
Section 4.5. Remedies Subject to Provisions of Law. All rights, remedies and powers
provided by this Article may be exercised only to the extent that the exercise thereof does not
violate any applicable provision of law in the premises, and all the provisions of this Article are
intended to be subject to all applicable mandatory provisions of law which may be controlling in
the premises and to be limited to the extent necessary so that they will not render this Loan
Agreement invalid or unenforceable under the provisions of any applicable law.
Section 4.6. Rights of the City. If there shall be pending proceedings for the bankruptcy
or for the reorganization of the Borrower under the United States Bankruptcy Code or any other
applicable law, or in case a receiver, trustee, or custodian shall have been appointed for the
property of the Borrower, or in the case of any other similar judicial proceedings relative to the
Borrower, or to the creditors or property of the Borrower, the City shall be entitled and empowered,
by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount owing and unpaid pursuant to the Loan Agreement and, in case of any judicial proceedings,
to file such proofs of claim and other papers or documents as may be necessary or advisable in
order to have the claims of the City allowed in such judicial proceedings relative to the Borrower,
its creditors, or its property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized to make such payments to the City, and to pay to the City any amount due it for
compensation and expenses, including reasonable counsel fees and expenses incurred by it to the
date of such distribution.
Section 4.7. Waiver of Events of Default. If after any event of default shall have
occurred under this Loan Agreement and prior to the City or Borrower exercising any of the
remedies provided in this Article, the Borrower or City, as the case may be, shall have completely
cured such default, such default may be waived at the discretion of the City or Borrower and, if so
waived, shall be rescinded and annulled by the City or Borrower by written notice given to the
Borrower or City, respectively.
15
4854-2813-5735.4
Section 4.8. Limitation of Liability. The City agrees and acknowledges that Borrower’s
representations, warranties, covenants, agreements and performance obligations under this Loan
Agreement are limited to and apply exclusively to the operations of Borrower at the Project site
and any determination as to whether Borrower is in default of this Loan Agreement will be limited
to Borrower’s operations at the Project site.
Section 4.9. Force Majeure. A party will not be deemed to be in default or otherwise in
violation of any term of this Loan Agreement to the extent such party’s action, inaction or omission
is the result of Force Majeure Event (as defined below). The City and Borrower agree to use
commercially reasonable efforts to promptly resolve any Force Majeure Event that adversely and
materially impacts their performance under this Loan Agreement. A force majeure event pauses a
party’s performance obligation for the duration of the event but does not excuse it. "Force Majeure
Event" means any event or occurrence that is not within the control of such party or its affiliates
and prevents a party from performing its obligations under this Loan Agreement, including without
limitation, any act of God; pandemic; act of a public enemy; war; riot; sabotage; blockage;
embargo; failure or inability to secure materials, supplies or labor through ordinary sources by
reason of shortages or priority; labor strike, lockout or other labor or industrial disturbance
(whether or not on the part of agents or employees of either party); civil disturbance; terrorist act;
power outage; fire, flood, windstorm, hurricane, earthquake or other casualty; any law, order,
regulation or other action of any governing authority; any action, inaction, order, ruling
moratorium, regulation, statute, condition or other decision of any governmental agency having
jurisdiction over the party hereto, over the Project or over a party’s operations.
(End of Article IV)
16
4854-2813-5735.4
ARTICLE V.
IMMUNITY
Section 5.1. Immunity. No covenant or agreement contained in this Loan Agreement
shall be deemed to be a covenant or agreement of any member of the City, the Commission or the
Redevelopment Commission or of any officer or employee of the City, the Commission, the
Redevelopment Commission or their legislative and fiscal bodies in his or her individual capacity,
and neither the members of the City, the Commission, the Redevelopment Commission nor any
officer or employee of the City executing the Loan Agreement shall be liable personally on the
Loan or be subject to any personal liability or accountability by reason of the Loan.
(End of Article V)
17
4854-2813-5735.4
ARTICLE VI.
SUPPLEMENTS AND AMENDMENTS TO THIS LOAN AGREEMENT
Section 6.1. Supplements and Amendments to this Loan Agreement. The Borrower and
the City may from time to time enter into such supplements and amendments to this Loan
Agreement as to them may seem necessary or desirable to effectuate the purposes or intent hereof.
(End of Article VI)
18
4854-2813-5735.4
ARTICLE VII.
DEFEASANCE
Section 7.1. Defeasance. If the Loan is funded and repayment of the Series 2022 Note
is forgiven pursuant to the terms of this Loan Agreement, then and in that case, all property, rights
and interest hereby conveyed or assigned or pledged shall revert to the Borrower, and the estate,
right, title and interest of the City therein shall thereupon cease, terminate and become void; and
this Loan Agreement, and the covenants of the Borrower contained herein, shall be discharged and
the City in such case on demand of the Borrower and at its cost and expense, shall execute and
deliver to the Borrower a proper instrument or proper instruments acknowledging the satisfaction
and termination of this Loan Agreement, and shall convey, assign and transfer or cause to be
conveyed, assigned or transferred, and shall deliver or cause to be delivered, to the Borrower, all
property, including money, then held by the City together with the Series 2022 Note marked paid
or cancelled.
(End of Article VII)
19
4854-2813-5735.4
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
Section 8.1. Termination by Borrower. Borrower has the right to terminate this Loan
Agreement for any reason or no reason by delivering notice to the City at least 5 business days
prior to the desired termination date.
Section 8.2. Dispute Resolution. The Borrower and the City ("Parties") shall use their
best efforts to resolve quickly and informally any disputes that could impede performance of the
Parties’ obligations under this Loan Agreement. If the Parties are not able to resolve a dispute
through such informal efforts, the dispute shall be resolved by mediation in accordance with the
Indiana Rules of Dispute Resolution. Such mediation shall be a condition precedent to a Party
commencing litigation against the other Party. This Agreement shall be governed and construed
in accordance with the laws of the State of Indiana, without giving effect to its conflict of law
rules. Any litigation commenced by a Party related to or arising out of this Agreement must be
filed in the state courts of St. Joseph County, Indiana. The Parties further consent to the personal
jurisdiction by said courts over it and hereby expressly waive, in the case of any such action, any
defenses thereto based on jurisdictions, venue or forum non conveniens.
Section 8.3. Confidentiality. Borrower acknowledges that portions of this Loan
Agreement and the materials, communications, data and information related to this Loan
Agreement may constitute public records subject to disclosure under the State’s public records
laws and agrees that the City may disclose such portions of this Loan Agreement and the materials,
communications, data and information related to this Loan Agreement as required by law, provided
that the City gives Borrower prior written notice sufficient (in no event less than 7 calendar days)
to allow Borrower to review any request for public record and make a recommendation to the City
concerning its response to any request for public records related to this Loan Agreement.
Section 8.4. Information Security. The City agrees to use reasonable physical and
technical measures to maintain the security of all electronic and tangible records relating to this
Loan Agreement.
Section 8.5. Loan Agreement for Benefit of Parties Hereto. Nothing in this Loan
Agreement, express or implied, is intended or shall be construed to confer upon, or to give to, any
person other than the parties hereto, their successors and assigns and the holder of the Series 2022
Note, any right, remedy or claim under or by reason of this Loan Agreement or any covenant,
condition or stipulation hereof; and the covenants, stipulations and agreements in this Loan
Agreement contained are and shall be for the sole and exclusive benefit of the parties hereto, their
successors and assigns and the holder of the Series 2022 Note.
Section 8.6. Severability. If any one or more of the provisions contained in this Loan
Agreement or in the Series 2022 Note shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained herein and therein, shall
not in any way be affected or impaired thereby.
20
4854-2813-5735.4
Section 8.7. Limitation on Interest. No provisions of this Loan Agreement or of the
Series 2022 Note shall require the payment or permit the collection of interest in excess of the
maximum permitted by law. If any excess of interest in such respect is herein or in the Series 2022
Note provided for, or shall be adjudicated to be so provided for herein or in the Series 2022 Note,
neither the Borrower nor its successors or assigns shall be obligated to pay such interest in excess
of the amount permitted by law, and the right to demand the payment of any such excess shall be
and hereby is waived, and this provision shall control any provisions of this Loan Agreement and
the Note inconsistent with this provision.
Section 8.8. Addresses for Notice and Demands. All notices, demands, certificates or
other communications hereunder shall be sufficiently given and shall be deemed given when
mailed by registered or certified mail, postage prepaid, with proper address as indicated below.
The City and the Borrower may, by written notice given by each to the others, designate any
address or addresses to which notices, demands, certificates or other communications to them shall
be sent when required as contemplated by this Loan Agreement. Until otherwise provided by the
respective parties, all notices, demands certificates and communications to each of them shall be
addressed as follows:
To the City: City of South Bend, Indiana
227 W. Jefferson Blvd, Suite 1400
South Bend, IN 46601
Attention: Executive Director of Community Investment
With a copy to: City of South Bend, Indiana
227 W. Jefferson Blvd, Suite 1400
South Bend, IN 46601
Attention: Corporation Counsel
To the Redevelopment South Bend Redevelopment Commission
Commission: 227 W. Jefferson Blvd, Suite 1400
South Bend, IN 46601
Attention: President
To the Borrower: The South Bend Chocolate Company, Inc.
3300 W. Sample Street
South Bend, IN 46619
Attention: President
Indiana Dinosaur Museum Inc.
24820 U.S. Highway 20
South Bend, IN 46628
Attention: Executive Director
With a copy to: Ice Miller LLP
One American Square, Suite 2900
Indianapolis, IN 46282
Attention: Lisa Lee
21
4854-2813-5735.4
Section 8.9. Successors and Assigns. Whenever in this Loan Agreement any of the
parties hereto is named or referred to, the successors and assigns of such party shall be deemed to
be included and all the covenants, promises and agreements in this Loan Agreement contained by
or on behalf of the Borrower, or by or on behalf of the City, shall bind and inure to the benefit of
the respective successors and assigns, whether so expressed or not.
Section 8.10. Counterparts. This Loan Agreement is being executed in any number of
counterparts, each of which is an original and all of which are identical. Each counterpart of this
Loan Agreement is to be deemed an original hereof and all counterparts collectively are to be
deemed but one instrument.
Section 8.11. Governing Law. It is the intention of the parties hereto that this Loan
Agreement and the rights and obligations of the parties hereunder and the Series 2022 Note and
the rights and obligations of the parties thereunder, shall be governed by and construed and
enforced in accordance with, the laws of the State.
Section 8.12. Third-Party Beneficiary. The parties hereto acknowledge and agree that the
terms of this Loan Agreement may be enforced by the Redevelopment Commission. The
Redevelopment Commission shall be deemed to be a third-party beneficiary of this Loan
Agreement. Except as provided in the foregoing sentence and as specifically set forth herein,
nothing in this Loan Agreement is intended to confer any rights or remedies under or by reason of
this Loan Agreement on any person or entity other than the parties hereto and their successors and
permitted assigns.
(End of Article VIII)
22
4854-2813-5735.4
IN WITNESS WHEREOF, the City has caused this Loan Agreement to be executed in its
name by its authorized officers and has caused its corporate seal to be hereunto affixed, and the
Borrower has caused this Loan Agreement to be executed in their names, all as of the date first
above written.
THE SOUTH BEND CHOCOLATE COMPANY,
INC., an Indiana corporation
Mark Tarner, President
INDIANA DINOSAUR MUSEUM INC.,
an Indiana nonprofit
By:
Printed:
Title:
23
4854-2813-5735.4
CITY OF SOUTH BEND, INDIANA
By:
James Mueller, Mayor
ATTEST:
By: ___________________________
Dawn Jones, Clerk
ACKNOWLEDGED BY THE SOUTH BEND
REDEVELOPMENT COMMISSION, as Third-
Party Beneficiary
By:
Marcia Jones, President
Attest:
By: _________________________________
Troy Warner, Secretary
This instrument prepared by Lisa A. Lee, Ice Miller LLP, One American Square, Suite 2900,
Indianapolis, Indiana 46282.
4854-2813-5735.4
EXHIBIT A-1
FORM OF INDIANA DINOSAUR MUSEUM INC.
TAXABLE ECONOMIC DEVELOPMENT REVENUE NOTE
SERIES 2022A NOTE
Issue Date: November ___, 2022
Original Principal: Up to [$1,700,000]
Maturity Date: [November __, 2030
Interest Rate: [3.28]%
FOR VALUE RECEIVED, the undersigned, Indiana Dinosaur Museum Inc. ("Borrower"),
a nonprofit corporation incorporated and existing under the laws of the State of Indiana and
authorized to do business under the laws of the State of Indiana, hereby promises to pay to the
order of City of South Bend, Indiana ("City"), in immediately available funds, the interest and
principal due under the Loan Agreement, dated as of November 1, 2022, between the City and
Borrower ("Loan Agreement"), upon maturity, to extent all or a portion of the principal and interest
payable under this Series 2022A Note is not forgiven pursuant to the Loan Agreement, at such
place as the City may direct, in immediately available funds based upon the outstanding principal
amount drawn on this Note, which shall not to exceed [$1,700,000].
In certain events and in the manner set forth in the Loan Agreement, payments due under
this Series 2022 Note are entitled to forgiveness.
This Series 2022A Note is issued pursuant to the Loan Agreement, and is entitled to the
benefits, and is subject to the conditions thereof. The Borrower's obligations under this Series
2022A Note are subject in all respects to the further provisions of the Loan Agreement.
This Note is the Note referred to in the Loan Agreement and is subject to, and is executed
in accordance with, all of the terms, conditions and provisions thereof, including those respecting
prepayments.
In any case where the date of payment hereunder shall not be on a Business Day (as defined
in the Loan Agreement), then such payment shall be made on the next succeeding Business Day
with the same force and effect as if made on the date of payment hereunder.
All terms used in this Note which are defined in the Loan Agreement shall have the
meanings assigned to them in the Loan Agreement.
[Remainder of page intentionally left blank.]
4854-2813-5735.4
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and
attested by its duly authorized officers or representatives.
Dated the Issue Date set forth above.
INDIANA DINOSAUR MUSEUM INC., an
Indiana nonprofit corporation
By:
Printed:
Title:
4854-2813-5735.4
EXHIBIT A-2
FORM OF THE SOUTH BEND CHOCOLATE COMPANY, INC.
TAXABLE ECONOMIC DEVELOPMENT REVENUE NOTE
SERIES 2022B NOTE
Issue Date: November ___, 2022
Original Principal: [$1,000,000]
Maturity Date: November _, 2030
Interest Rate: [3.28]%
FOR VALUE RECEIVED, the undersigned, The South Bend Chocolate Company, Inc.
("Borrower"), an Indiana corporation incorporated and existing under the laws of the State of
Indiana and authorized to do business under the laws of the State of Indiana, hereby promises to
pay to the order of City of South Bend, Indiana ("City"), in immediately available funds the interest
and principal due under the Loan Agreement, dated as of November 1, 2022, between the City and
Borrower ("Loan Agreement"), upon maturity, to extent all or a portion of the principal and interest
payable under this Series 2022B Note is not forgiven pursuant to the Loan Agreement, at such
place as the City may direct, in immediately available funds based upon the outstanding principal
amount drawn on this Note, which shall not to exceed [$1,000,000].
In certain events and in the manner set forth in the Loan Agreement, payments due under
this Series 2022B Note are entitled to forgiveness.
This Series 2022B Note is issued pursuant to the Loan Agreement, and is entitled to the
benefits, and is subject to the conditions thereof. The Borrower's obligations under this Series
2022 Note are subject in all respects to the further provisions of the Loan Agreement.
This Note is the Note referred to in the Loan Agreement and is subject to, and is executed
in accordance with, all of the terms, conditions and provisions thereof, including those respecting
prepayments.
In any case where the date of payment hereunder shall not be on a Business Day (as defined
in the Loan Agreement), then such payment shall be made on the next succeeding Business Day
with the same force and effect as if made on the date of payment hereunder.
All terms used in this Note which are defined in the Loan Agreement shall have the
meanings assigned to them in the Loan Agreement.
[Remainder of page intentionally left blank.]
4854-2813-5735.4
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and
attested by its duly authorized officers or representatives.
Dated the Issue Date set forth above.
THE SOUTH BEND CHOCOLATE COMPANY,
INC., an Indiana nonprofit corporation
By:
Printed:
Title:
1
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “First
Amendment”) is made on October 13, 2022, by and between the South Bend Redevelopment
Commission, the governing body of the City of South Bend Department of Redevelopment (the
“Commission”), and SBCC Development Corp. (the “Developer”) (each a “Party,” and
collectively the “Parties”).
RECITALS
A.The Commission and the Developer entered into a Development Agreement dated
effective December 19, 2019 (the “Development Agreement”), pertaining to certain local public
improvements ("LPI") for the improvement of the Developer Property, which is located in the
River West Development Area (the "Project").
B.As set forth in the Development Agreement, the Mandatory Project Completion
Date is December 21, 2023.
C.Developer has requested additional time to complete the Project.
NOW, THEREFORE, in consideration of the mutual promises and obligations stated in the
Development Agreement and this First Amendment, the adequacy of which is hereby
acknowledged, the Parties agree as follows:
1.Section 4.5, entitled “Timeframe for Completion,” shall be modified to delete the
phrase “December 31, 2023” and replace it with “June 30, 2024.”
2.The Developer hereby expressly reaffirms its obligations under the Development
Agreement, and, unless expressly modified by this First Amendment, the terms and provisions of
the Development Agreement remain in full force and effect.
3.Capitalized terms used in this First Amendment will have the meanings set forth in
the Development Agreement unless otherwise stated herein.
4.The recitals set forth above are hereby incorporated into the operative provisions of
this First Amendment.
5.This First Amendment will be governed and construed in accordance with the laws
of the State of Indiana.
6.This First Amendment may be executed in separate counterparts, each of which
when so executed shall be an original, but all of which together shall constitute one and the same
instrument. Any electronically transmitted version of a manually executed original shall be deemed
a manually executed original.
Signature Page Follows
ITEM 5A5
2
IN WITNESS WHEREOF, the Parties hereby execute this First Amendment to
Development Agreement as of the first date stated above.
SOUTH BEND REDEVELOPMENT
COMMISSION
By:____________________________________
Marcia I. Jones, President
ATTEST:
By:____________________________________
Troy D. Warner, Secretary
SBCC DEVELOPMENT CORP.
By: _____________________________________
Mark A. Tarner, President
Redevelopment Commission Agenda Item
DATE:
FROM:
SUBJECT:
10/7/2022
Joseph Molnar
Update Tree Nursery Agreement
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Update of the Tree Nursery Agreement with BPW and Park Board
Specifics: The parties originally established a dispersed urban native tree nursery program
in April of 2017 as a way to temporarily re-purpose City owned vacant lots. This updated
agreement adds additional lots, incorporates additional City partners, and affirms ownership
of the trees. Included in the updated agreement is a schedule of the program properties.
Staff recommends approval of the updated agreement.
INTERNAL USE ONLY: Project Code: _______________________________________________;
Total Amount new/change (inc/dec) in budget: _______________; Break down:
Costs: Engineering Amt: ______________________; Other Prof Serv Amt_________________;
Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________;
Building Imp Amt_________; Sewers Amt_________; Other (specify) Amt: ________________
___________________________________________. Going to BPW for Contracting? Y/N
Is this item ready to encumber now? ____ Existing PO#__________ Inc/Dec $_____________
_________________________Pres/V-Pres
ATTEST: __________________Secretary
Date: ____________________
APPROVED Not Approved
SOUTH BEND REDEVELOPMENT COMMISSION
ITEM 5A6
COMMUNITY TREE NURSERY COLLABORATION
AMENDED AND RESTATED AGREEMENT
____________________________________________________________________________
THIS COMMUNITY TREE NURSERY COLLABORATION AMENDED AND
RESTATED AGREEMENT ("Agreement") is made effective this 13 day of October, 2022 (the
“Effective Date”) by and between the City of South Bend, Indiana Venues, Parks, and Arts
Department (“VPA”), acting through its Board of Park Commissioners (“Parks Board”); South
Bend Redevelopment Commission (“Redevelopment Commission”); and the City of South
Bend, Indiana, acting by and through its Board of Public Works ("Public Works").
RECITALS
WHEREAS, The parties originally established a dispersed urban native tree nursery
program in April of 2017 as positive repurposing of specifically listed vacant lots owned by the
City. The parties now desire to amend and restate the Agreement to the add additional lots to the
program, incorporate additional City partners, and affirm ownership of the trees. For ease of
administration, a schedule of the program properties (the “Properties”) is hereby incorporated by
reference and attachment to the Agreement (Exhibit A); and
WHEREAS, Public Works and Redevelopment Commission, on behalf of the City of
South Bend ("City"), each own some of the Properties; and
WHEREAS, Public Works and Redevelopment Commission each desire to let VPA
utilize their respective Properties as prototypes of positive adaptive repurposing of vacant lots as
urban neighborhood innovation as distributed urban native tree nurseries; and
WHEREAS, VPA will provide ongoing volunteer services to the Properties to help
create and maintain the planned pilot distributed urban native tree nurseries on the Properties;
and
WHEREAS, the parties desire to memorialize the terms of their agreement herein.
NOW THEREFORE, for and in consideration of the mutual covenants and promises
contained herein, the parties hereby agree as follows:
Section 1. Public Works Duties. Public Works agrees to grant VPA access to its
Properties for the planting of distributed urban native tree nurseries.
Section 2. Redevelopment Commission Duties. Redevelopment Commission agrees to
grant VPA access to its Properties for the planting of distributed urban native tree nurseries.
Section 3. VPA Duties. VPA agrees to plant and provide ongoing maintenance and care
to the distributed urban native tree nurseries described herein. VPA shall assume all expenses
related to such ongoing maintenance, including any fees as set forth in the Municipal Code of the
City of South Bend, Indiana Section 17-79 et al. related to water fees. VPA owns all the trees
planted in the native tree nurseries and has the right to transplant any mature trees to other City
locations, in its sole discretion.
Section 5. Term. The Properties shall be subject to the terms of this Agreement until the
expiry dates set forth in their respective schedules as set forth on Exhibit A. The parties may
agree to extend the applicability of this Agreement to the Properties contained in any schedule by
a signed written amendment to this Agreement for up to three (3) additional five (5)-year periods
from the date of termination for that schedule. This Agreement shall terminate on a date that is
five (5) years from the Effective Date or upon the expiration date of the last renewal, whichever
is later.
a.Access to Properties listed under Schedule I of Exhibit A will terminate on December 31,
2027.
b. Access to Properties listed under Schedule II of Exhibit A will terminate on December
31, 2028.
c.Access to Properties listed under Schedule III of Exhibit A will terminate on December
31, 2024.
d.Access to Properties listed under Schedule IV of Exhibit A will terminate on December
31, 2027.
Section 6. Assignment; Subcontractors. The parties shall not assign or subcontract the
whole or any part of this Agreement without the prior written consent of the other parties.
Section 7. Changes in Scope of Services. The parties understand and agree that the
scope of services delineated in this Agreement are limited to the Properties and the establishment
of a tree nursery. Any changes thereto must be authorized in writing by all parties hereto.
Section 8. Governing Law; Compliance with Laws. This Agreement shall be construed
and interpreted according to the laws of the State of Indiana. The parties hereto agree to comply
with all applicable federal, state and local laws, rules, regulations and ordinances, and all
provisions required thereby are hereby incorporated herein by reference.
Section 9. Relationship/Independent Contractor. All parties, in the performance of this
Agreement, shall act in an individual capacity and not as agents, employees, partners, joint
venturers or associates of one another. The employee(s) or agent(s) of one party shall not be
deemed or construed to be the employee(s) or agent(s) of any other party for any purpose
whatsoever.
Section 10. Waiver. One or more waivers of any condition herein shall not be construed
as a waiver of a subsequent breach of the same condition.
Section 11. Authority. Each undersigned person signing on behalf of his/her respective
party certifies that he/she is duly authorized to bind his/her respective party to the terms of this
Agreement.
Section 12. Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof, and merges and supersedes all
prior discussions, agreements, and understanding of any and every nature between them.
****SIGNATURE PAGE FOLLOWS****
IN WITNESS WHEREOF, the parties hereto, through their duly authorized
representatives, have caused this Community Tree Nursery Collaboration Amended and Restated
Agreement to be executed as of the day and year first written above. The parties have read and
understand the foregoing terms of this Agreement and do, by their respective signatures hereby
agree to its terms.
BOARD OF PARK CITY OF SOUTH BEND, INDIANA
COMMISSIONERS: BOARD OF PUBLIC WORKS:
______________________________ ______________________________
Mark Neal, President Elizabeth A Maradik, President
______________________________ ______________________________
Consuela Hopkins, Vice President Gary A. Gilot, Member
______________________________ ______________________________
_______________ , Member Jordan V. Gathers, Member
______________________________ ______________________________
_______________ Member Joseph R. Molnar, Member
ATTEST: ______________________________
Murray L. Miller, Member
______________________________
Jessica Williams, Clerk ATTEST:
______________________________ ______________________________
Date Approved Clerk
Date: _________________________
__________________________________________
REDEVELOPMENT COMMISSION OF
SOUTH BEND:
______________________________
Marcia Jones, President
______________________________
Troy Warner, Secretary
______________________________
Date Approved
EXHIBIT A.
SCHEDULE OF PARCELS
Schedule I
(Coverage under this Agreement Terminates on December 31, 2027)
Address Parcel No. Legal Desc.
625 East Dayton St. 018-7029-1141 LOT 93 HENRY STUDEBAKERS 2ND
1414 High St. 018-7010-0415 LOT 101 WENGER & KRIEGHBAUM 2ND ADD
Vacant lot east of
1414 High St.
018-7012-0473 LOT 100 WENGER & KRIEGHBAUM 2ND ADD
Schedule II
(Coverage under this Agreement Terminates on December 31, 2023)
Address Parcel No. Legal Desc.
529 N. Allen St. 018-1035-1524 LOT 25 J N LEDERERS ADD
525 N. Allen St. 018-1035-1523 LOT 24 J N LEDERERS ADD
521 N. Allen St. 018-1035-1522 LOT 23 LEDERERS SUB OF OUTLOT A
Schedule III
(Coverage under this Agreement Terminates on December 31, 2024)
Address Parcel No. Legal Desc.
435 N. Allen St. 018-1032-1400 LOTS 29 & 30 34.8 FT N END BIRNER PLACE
ADD
431 N. Allen St. 018-1032-1401 LOTS 29 & 30 34.8 FT MID PT BIRNER PLACE
ADD
429 N. Allen St. 018-1032-1402 LOTS 29 & 30 34.8 FT SLY END BIRNER PLACE
ADD
442 S. Brookfield St. 018-4013-0449 LOT 123 SUMMIT PL 2ND ADD
516 N. Allen St. 018-1035-1534 LOT 16 J N LEDERERS ADD
520 N. Allen St. 018-1035-1533 LOT 15 J N LEDERERS ADD
606 N. Blaine Ave. 018-1035-1513 LOT 29 W 1/2 J N LEDERERS ADDITION
608 N. Blaine Ave. 018-1035-1514 LOT 29 E 1/2 J N LEDERER
1110 W. Harvey St. 018-1032-1399 LOT 28 BIRNER PL ADD
1117 W. Harvey St. 018-1032-1387 LOT 15 BIRNER PLACE
1121 W. Harvey St. 018-1032-1386 LOT 16 BIRNER PL ADD
Schedule IV
(Coverage under this Agreement Terminates on December 31, 2027)
Address Parcel No. Legal Desc.
404 Allen St. 018-1033-1441 Lot 51 Birner Place Add
610 Euclid Ave. 018-1037-1621 Lot 12 Orchard Hts 1st
614 Euclid Ave. 018-1037-1620 Lot 11 Orchard Heights 1st
618 Euclid Ave. 018-1037-1619 Lot 10 Orchard Hts 1st Add
622 Euclid Ave. 018-1037-1618 Lot 9 Orchard Hts 1st
1102 Birner St. 018-1033-1440 Lot 50 Birner Place Add.
1231 W. Colfax Ave. 018-1044-1882 Lot 82 Comm Sub Of Bol 79
1235 W. Colfax Ave. 018-1044-1881 Lot 83 Commissioner's Sub Of Bol 79
1237 W. Colfax Ave. 018-1044-1880 Lot 84 Comm Sub Of Bol 79
Section IV Continued
Address Parcel No. Legal Desc.
318 Walnut St. 018-1050-2173 Lot 75 Swygarts 1st Add
322 Walnut St. 018-1050-2172 Lot 74 Swygarts 1st
326 Walnut St. 018-1050-2171 Lot 73 Swygarts 1st
418 Walnut St. 018-1050-2164 Lot 66 Swygarts 1st Add
420 Walnut St. 018-1050-2163 Lot 65 Swygarts 1st
502 Walnut St. 018-1051-2223 Lot 96 Swygarts 2nd Add
506 Walnut St. 018-1051-2222 Lot 97 Swygarts 2nd
510 Walnut St. 018-1051-2221 Lot 98 Swygarts 2nd
Redevelopment Commission Agenda Item
DATE: 10/13/2022
FROM: Leslie Biek, PE, Assistant City Engineer
SUBJECT: Angela Blvd Roadway Modification PSA
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Design of Angela Blvd Road Modification from SR 933 to SR 23
Specifics: Roadway modification on Angela Blvd to accommodate bicycle lanes, improved
pedestrian accessibility and lane reduction between SR 933 and SR 23.
INTERNAL USE ONLY: Project Code: __122-059 ____________ _________________________;
Total Amount new/change ( inc/dec) in budget: _$159,900__; Break down:
Costs: Engineering Amt: __159,900______________; Other Prof Serv Amt____________________;
Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt ________________;
Building Imp Amt_________; Sewers Amt_________; Other (specify) Amt: ________________
___________________________________________. Going to BPW for Contracting? Y/N
Is this item ready to encumber now? ____ Existing PO#__________ Inc/Dec $_____________
_________________________Pres/V-Pres
ATTEST: __________________Secretary
Date: ____________________
APPROVED Not Approved
SOUTH BEND REDEVELOPMENT COMMISSION
ITEM 5B1
Redevelopment Commission Agenda Item
DATE: 10/11/2022
FROM: Jitin Kain, Deputy Director, PW
SUBJECT: Budget Request – Trail from downtown to ND
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: This budget request is for $78,325 to develop a conceptual plan for a
bicycle and pedestrian trail connecting downtown South Bend to the University of Notre Dame
campus. A comfortable path for people walking or biking does not exist between the two
destinations and much of the current sidewalk infrastructure is deteriorated and feels unsafe to
residents and visitors alike. The plan will explore options to enhance the connectivity between
the two and make the route appealing to its users through branding, lighting and other
landscaping amenities.
INTERNAL USE ONLY: Project ID:
Total Amount – New Project Budget Appropriation $_______________;
Total Amount – Existing Project Budget Change (increase or decrease) $_______________;
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 5B2