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HomeMy WebLinkAboutDemolition Agreement - Demo of Housing Units at Monroe Circle – Housing Authority of SBDEMOLITION AGREEMENT This Demolition Agreement (this "Agreement"), is effective as of May 9, 2023 (the "Effective Date"), by and between the City of South Bend, Indiana (the "City") acting by and through its Board of Public Works ("BPW"), and the Housing Authority of South Bend ("HASB") (each, a "Party," and collectively the "Parties"). WHEREAS, HASB owns certain real property described in Exhibit A, together with all improvements thereon and all easements, rights, licenses, and other interests appurtenant thereto (collectively, the "Property"); and WHEREAS, the City has been working in coordination with HASB as HASB explores redevelopment options for the Property, which has reached its end -of -life in its current arrangement and poses significant maintenance challenges for HASB (the "Project"); and WHEREAS, as part of the Project, HASB desires to demolish the structures comprising the Property and would like assistance from the City in effectuating the demolition; and WHEREAS, the South Bend Redevelopment Commission (the "Commission") exists and operates under the provisions of the Redevelopment of Cities and Towns Act of 1953, as amended (I.C. 36-7-14 et seq., the "Act"); and WHEREAS, the Act provides that the clearance, replanning, and redevelopment of redevelopment areas are public uses and purposes for which public money may be spent; and WHEREAS, the Property is located within the corporate boundaries of the City, within the River West Development Area (the "Area"); and WHEREAS, HASB will continue to use the Property for residential housing purposes, including, but not limited to, low-income housing after the demolition work is completed; and WHEREAS, the Commission believes that the demolition work as described herein is in the best interests of the health, safety, and welfare of the City and its residents; and WHEREAS, on April 13, 2023, the Commission approved funding from the Area to facilitate and assist the Project by undertaking the local public improvements stated in Exhibit B (the "Local Public Improvements"), which includes the demolition work contemplated herein, and the financing thereof, subject to the terms and conditions of this Agreement and in accordance with the Act; and WHEREAS, pursuant to I.C. 36-9-6, BPW may design, order, contract for, and execute the erection or removal of buildings and other structures needed for any public purpose and, acting as the agent of the Commission, is the appropriate body to perform the terms set forth herein. NOW, THEREFORE, in consideration of the mutual promises and obligations stated in this Agreement, the adequacy of which is hereby acknowledged, the Parties agree as follows: 1. Term, Termination. Unless earlier terminated in accordance with its terms, this Agreement will commence upon execution and end upon City's completion of the Local Public Improvements. Notwithstanding the foregoing, effective immediately upon delivery of a written termination notice to the HASB, the City may terminate this Agreement, in whole or in part, for any reason, if the City determines that such termination is in the best interest of the City. In addition, in accordance with Ind. Code 6-1.1-18, funding of the Local Public Improvements is subject to appropriation by the City. If the City makes a written determination that funds are not appropriated or are otherwise unavailable to support the continuation of this Agreement, it shall be cancelled. A determination by the City that funds are not appropriated or are otherwise unavailable to support the continuation of performance shall be final and conclusive. 2. Funding Amount. "Funding Amount" means an amount not to exceed One Million Six Hundred Thousand Dollars ($1,600,000.00) of tax incremental finance reserves to be used for paying the costs associated with the performance of the Local Public Improvements. 3. Access; Grant of Easement. HASB will grant to BPW a temporary, non-exclusive easement on, in, over, under and across any part(s) of the Property (the "Easement") in the form attached hereto as Exhibit C, to permit the City to fulfill its obligations under this Agreement, including the performance of the Local Public Improvements. The Easement shall (a) inure to the benefit of the City and BPW or any contractors acting on behalf of the City in connection with the performance of the Local Public Improvements; (b) shall bind HASB and its grantees, successors, and assigns; and (c) shall terminate no later than upon completion of the Local Public Improvements, as reasonably determined by the BPW. 4. HASB Obligations. The Parties acknowledge and agree that the BPW's agreement to perform and abide by the covenants and obligations set forth in this Agreement are material consideration for HASB's commitment to perform and abide by the covenants and obligations of HASB contained in this Agreement. HASB agrees to endorse and support the BPW's efforts to expedite the Local Public Improvements through any required planning, design, public bidding, construction, inspection, waiver, permitting, and related regulatory processes. HASB agrees to obtain any and all easements from any governmental entity and/or any other third parties that HASB or BPW deems necessary or advisable in order to complete the Local Public Improvements, and the obtaining of such easements is a condition precedent to BPW's obligations under this Agreement. HASB further agrees to provide any and all due diligence items with respect to the Project reasonably requested by BPW. After the Project is completed, HASB agrees that it shall continue to use the Property for residential housing purposes, including, but not limited to, low- income housing. 5. BPW Obligations. The Parties acknowledge and agree that HASB's agreement to perform and abide by the covenants and obligations set forth in this Agreement is material consideration for BPW's commitment to perform and abide by the covenants and obligations of BPW's contained in this Agreement. With regard to the Local Public Improvements, BPW hereby agrees to complete (or cause to be completed) the Local Public Improvements described in Exhibit B attached hereto on a schedule to be reasonably determined and agreed to by BPW and HASB, as may be modified due to unforeseen circumstances and delays. The Local Public Improvements will be completed in accordance with all applicable public bidding and contracting laws and will be subject to inspection by the Engineering Department or its designee. Notwithstanding anything contained herein to the contrary, in the event the costs associated with the Local Public Improvements are in excess of the Funding Amount, HASB, at its sole option, may determine to pay to BPW the amount of the excess costs to permit timely completion of the Local Public Improvements by the BPW, or an agent of the BPW, which amounts shall be applied for such purpose. If HASB chooses not to pay any such excess costs of the Local Public Improvements (above the Funding Amount), the BPW may reduce the scope of the Local Public Improvements to the amount which may be funded with the Funding Amount. In no event will BPW be required to spend more than the Funding Amount in connection with the Local Public Improvements. 6. No Agency, Joint Venture or Partnership. The Parties acknowledge and agree that none of the City, including Commission and BPW, or HASB has any interest or responsibilities for, or due to, third parties concerning any improvements until such time, and only until such time, that the Commission, the BPW, and/or HASB expressly accepts the same. The Parties hereby renounce the existence of any form of agency relationship, joint venture or partnership between the City and HASB and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between the City and HASB. 7. Indemnity. HASB agrees to indemnify, defend, and hold harmless the City from and against any third -party claims suffered by the City resulting from or incurred in connection with the Local Public Improvements or the Project. 8. Other Necessary Acts. Each Party shall execute and deliver to the other Parties all such other further instruments and documents as may be reasonably necessary to accomplish the the Local Public Improvements contemplated by this Agreement and to provide and secure to the other Parties the full and complete enjoyment of its rights and privileges hereunder. Notwithstanding the foregoing, the Parties understand and agree that certain actions contemplated by this Agreement may be required to be undertaken by persons, agencies, or entities that are not a parry to this Agreement, including, but not limited to certain permits, consents, and/or approvals (to the extent they have not yet been obtained and completed), and that any action by such third parties shall require independent approval by the respective person, agency, entity, or governing body thereof. 9. Dispute Resolution; Waiver of Jury Trial. Any action to enforce the terms or conditions of this Agreement or otherwise concerning a dispute under this Agreement will be commenced in the courts of St. Joseph County, Indiana, unless the Parties mutually agree to an alternative method of dispute resolution. The Parties acknowledge that disputes arising under this Agreement are likely to be complex and they desire to streamline and minimize the cost of resolving such disputes. In any legal proceeding, each Party irrevocably waives the right to trial by jury in any action, counterclaim, dispute, or proceeding based upon, or related to, the subject matter of this Agreement. This waiver applies to all claims against all parties to such actions and proceedings. This waiver is knowingly, intentionally, and voluntarily made by both Parties. 10. Attorneys' Fees. In the event of any litigation, mediation, or arbitration between the Parties regarding an alleged breach of this Agreement, none of the Parties shall be entitled to any award of attorney's fees. 11. Notices. Any notice required or permitted to be delivered hereunder shall be deemed to be delivered when deposited in the United States Postal Service, postage prepaid, registered or certified mail, return receipt requested, addressed to the City or HASB, as the case may be, at the address set forth below. HASB: Housing Authority of South Bend 501 Alonzo Watson Dr. South Bend, IN 46601 Attn: Executive Director Cw Department of Community Investment City of South Bend 227 W. Jefferson Boulevard, Suite 1400S South Bend, IN 46601 Attn: Executive Director 12. No Waiver. No failure or delay on the part of either Party in exercising any right under this Agreement will operate as a waiver of, or impair, any such right. No single or partial exercise of any such right will preclude any other or further exercise thereof or the exercise of any other right. No waiver of any such right will have effect unless given in a written document signed by the Party waiving such right. No waiver of any right will be deemed a waiver of any other right hereunder. 13. Severability. In the event any portion of this Agreement shall be held illegal, void, or ineffective, the remaining portions hereof shall remain in full force and effect. If any of the terms or conditions of this Agreement are in conflict with any applicable statute or rule of law, then such terms and conditions shall be deemed inoperative to the extent that they may conflict therewith and shall be deemed to be modified to conform to such law. 14. Force Majeure. Neither party be responsible for any failure or delay in the performance of any obligation hereunder, if such failure or delay is due to a cause beyond the party's reasonable control, including, but not limited to acts of God, nature, or government. 15. Entire Agreement; Amendment; Applicable Law. 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 understandings of any and every nature between them. This Agreement may be amended only by separate writing, signed by authorized representatives of both HASB and the City. This Agreement will be construed and interpreted according to the laws of the State of Indiana. IN WITNESS WHEREOF, the parties hereto, through their duly authorized representatives, have caused this 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. HOUSING AUTHORI' By: Printed: Catherine Its: 0611114' � —WIX CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Elizabeth A. Maradik, President Gary A. Gilot, Member Murray L. Miller, Member WON Joseph R. Molnar, Vice President Jordan V. Gathers, Member 414 Attest: Theresa M. Heffner, Clerk Date: May 9, 2023 EXHIBIT A Description of Property Tax ID No.: 018-3049-1859 Parcel Key No.: 71-08-11-426-001.000-026 Legal Description: Glass House Survey Of Lots 56 57 58 And Lots 5 To 10 Touhey And Hagerty Commonly known as: 628 West Western Avenue, South Bend, Indiana, 46601 EXHIBIT R Description of Local Public Improvements BPW will complete, or cause to be completed, the following work in accordance with the terms and conditions of this Agreement and in compliance with all applicable laws and regulations: Work to be performed shall include furnishing all labor, services, materials, insurance, and equipment to provide for the demolition of the Property, commonly known as Monroe Circle, which is comprised of 91 single family apartments situated within seventeen two-story apartment buildings. The work shall include the demolition and removal of buildings, basements, and foundations, as well as the demolition and removal of site improvements and asbestos abatement. EXHIBIT C Form of Easement GRANT OF TEMPORARY EASEMENT THIS INDENTURE, made as of the 9th day of May 2023 (the "Effective Date"), by and between Housing Authority of South Bend, an Indiana not -for -profit public corporation, with offices at 501 Alonzo Watson Drive, South Bend, Indiana 46601 (the "Grantor"), and the South Bend Board of Public Works, governing body of the City of South Bend, 1300 N. County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601 (the "Grantee"). WITNESSETH: For the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which Grantor hereby acknowledges, Grantor hereby grants, conveys, and warrants to Grantee a temporary, non- exclusive easement (the "Easement") on, in, over, under and across the real property described in attached Exhibit 1 (the "Property") for the construction, equipping, and delivery of certain improvements on the Property (the "Local Public Improvements"), together with the right of ingress to and egress from the Easement for said purposes, all pursuant to a certain Demolition Agreement by and between Grantor and Grantee, dated May 9 , 2023 (the "Demolition Agreement"). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Demolition Agreement. The Easement granted herein shall pertain to the air, surface, and subsurface rights and interests of Grantor, for the use and benefit of Grantee, and its successors and assigns, to the extent necessary to accomplish and carry out the construction, equipping, and delivery of the Local Improvements on the Property. The Easement hereby granted includes the right and privilege for Grantee at reasonable times to clean and remove from said Easement any debris or obstructions interfering with said Easement. The Easement granted herein, and its associated benefits and obligations, shall inure to the benefit of Grantee and Grantee's contractors acting on Grantee's behalf in connection with the Local Public Improvements. Notwithstanding anything contained herein to the contrary, unless extended in writing by Grantor, the Easement shall terminate and be of no further force and effect on the date (hereinafter, the "Construction Termination Date") of the earliest of the following: (a) completion of the Local Public Improvements; (b) expiration or earlier termination of the Demolition Agreement; or (c) such earlier date as Grantor and Grantee may agree to in writing. IN WITNESS WHEREOF, Grantor has executed this Grant of Temporary Easement on the date shown in the acknowledgment set forth below to be effective as of the Effective Date. GRANTOR: Its: �<cc,}; c e-c r STATE OF INDIANA ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for said State, personally appeared to me known to be the of the Grantor in the above Grant of Temporary Easement, and acknowledged the execution of the same as the Grantor's free and voluntary act and deed. r,., WITNESS my hand and Notarial Seal this 8 day of May, 2023. •d:.,� Pn Notary bmNc � No Notary Public 3an� Inrffin `'i►i!AAW�' Residing in L aKe- County, IN My Commission Expires:- filoa r This instrument was prepared by Danielle Campbell Weiss. I affirm, under the penalties for perjury, that 1 have taken reasonable care to redact each Social Security number in this document, unless required by law. Danielle Campbell Weiss. EXHIBIT 1 Description of Property Tax ID No.: 018-3049-1859 Parcel Key No.: 71-08-11-426-001.000-026 Legal Description: Glass House Survey Of Lots 56 57 58 And Lots 5 To 10 Touhey And Hagerty Commonly known as: 628 West Western Avenue, South Bend, Indiana, 46601 11 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 05/02/2023 Name Zach Hurst Department DPW BPW Date 05/09/2023 Phone Extension 3057 Review and Approval Required Prior to Submittal to Board Diversity Compliance ❑ and Inclusion Officer Officer Name BPW Attorney ® Attorney Name Michael Schmidt Dept. Attorney ❑ Attorney Name Purchasing ❑ Check the Appropriate Item Type — Re uired or All Submissions ❑ Professional Services Agreement ❑ Open Market Contract ❑ Bid Opening ❑ Quote Opening ❑ Proposal Opening ❑ Chg. Order, No. ® Other: Demolition Agreement ❑ Contract ❑ Proposal ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Award ❑ Reject Bids/Quotes ❑ C/O & PCA No. ❑ PCA ❑ Traffic Control ❑ Resolution ❑ Ease./Encroach Reauired Information Company or Vendor Name Housing Authority of South Bend New Vendor ❑ Yes[:] If Yes, Approved by Purchasing ❑ No MBE/WBE Contractor ❑ WBE Completed E-Verify Form Attached ❑ Yes No Project Name Monroe Circle Demolition Project Number 123-048 Funding Source Not Applicable Account No. Amount Terms of Contract Purpose/Description Demolition Agreement allowing Board of Public Works on to private propert, for demolition of housing _- units. nits. For Chance Orders Onl Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount $ Increase Current Percent of Change: Decrease New Amount $ Increase Total Percent of Change: Decrease Time Extension Amount: New Completion Date: