HomeMy WebLinkAboutBill No. 23-34 Declaratory Res.1405 Portage Ave., SB, IN 5 yr. Tax Abatement Correcting Scrivener's ErrorCITY OF SOUTH BEND
COMMU NITY INVESTMENT-F-il-ed_i_n_Cl-er-l<'_s_Oft-ic-e--,
August 23, 2023
Council Member Rachel Tomas Morgan
Chairperson
Community Investment Committee
South Bend Common Council
County-City Building, 4th Floor
South Bend, Indiana 46601
DAWN M, JONES CITY CLERK, SOUTH BENO, IN
RE: Resolution Correcting Scrivener's Error: Retail Development Real Property Tax
Abatement Petition for Peak Investment and Asset Management LLC
Dear Council Member Tomas Morgan:
Please find the enclosed resolution correcting a scrivener's error in Resolution No. 5031-23, a
Declaratory Resolution adopted by the Common Council on June 26, 2023, and Resolution No.
5040-23, the subsequent Confirming Resolution adopted by the Council on July 10, 2023.
Collectively, these two resolutions provide a real property tax abatement for a retail
development by Peak Investment and Asset Management LLC.
The development receiving the abatement will consist of two retail buildings and a parking lot
over three parcels at the corner of Portage Avenue and Elwood Avenue. Unfortunately, the
abatement resolutions adopted by the Council included only one of the parcels and
inadvertently and in error excluded the other two parcels. The new resolution to be presented to
Council for consideration will add the two parcels to the abatement and correct the error.
If you or any of the other Council members have questions concerning the report or need
additional information, please feel free to call me at (574) 235-5838.
Sincerely, � c:__) � ,_ __/
Erik Glavich
Director, Growth and Opportunity
EXCELLENCE ACCOUNTABILITY INNOVATION INCLUSION EMPOWERMENT
1400S County-City Building 227 W. Jefferson Blvd. South Bend. Indiana 46601 p 574.235.9371 www.southbend,n.gov
BILL NO. 23-34
Filed ir, Ck>rk's Office
AUG 2:h1123
BILL NO. 23-34
RESOLUTION NO. 5031-23 DAWCITYCLERK,
M .JSOUO'H BEND,IN
A RESOLUTION OF THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA, CORRECTING SCRIVENER'S
ERROR IN RESOLUTION NO. 5031-23 DESIGNATING CERTAIN AREAS
WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN
AS
1405 Portage Avenue, South Bend, IN 46616
AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A
FIVE-YEAR (5) REAL PROPERTY TAX ABATEMENT FOR
Peak Investment and Asset Management LLC
AND CORRECTING SCRIVENER'S ERROR IN RESOLUTION NO. 5040-
23 CONFIRMING THE ADOPTION OF RESOLUTION NO. 5031-23
WHEREAS, on June 26, 2023, the Common Council of the City of South Bend, Indiana,
adopted Resolution No. 5031-23 designating a certain area within the City as an Economic
Revitalization Area for the purpose of tax abatement consideration; and
WHEREAS, Resolution No. 5031-23 designated the area described as:
Key Number: 71-03-35-360-020.000-026
Commonly Known As: 1405 Portage Avenue
Legal Description: Lot C Victory Add& Vac Alley N&Adj& Ex Se
Tri Cor to City 20/21 Con w/018-2182-6830 Per
Assessors Req IC 6-1.1-5-16
an Economic Revitalization Area under the provisions of Indiana Code 6-1.1-12.1 et seq.
and South Bend Municipal Code Sections 2-76 et seq.; and
WHEREAS, on July 10, 2023, the Common Council adopted Resolution No. 5040-23
confirming Resolution No. 5031-23; and
WHEREAS, in addition to the area described in Resolution No. 5031-23 and Resolution
No. 5040-23, the area designated as an Economic Revitalization Area by Resolution No. 5031-23
and confirmed by Resolution No. 5040-23 should have also included the area described as:
Key Number: 71-03-35-360-017.000-026
Commonly Known As: 1301 Elwood Avenue
Legal Description: Lot 8 Victory Add
Key Number: 71-03-35-360-016.000-026
Commonly Known As: 1305 Elwood Avenue
Legal Description: Lot 7 Victory Add
and that this additional area was inadvertently excluded in error from Resolution No. 5031-
23 and Resolution No. 5040-23; and
WHEREAS, the Common Council desires to correct this scrivener's error appearing in
Resolution No. 5031-23 and in Resolution No. 5040-23.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South
Bend, Indiana, as follows:
SECTION I. The area designated as an Economic Revitalization Area by Resolution No. 5031-23
as adopted on June 26, 2023, and confirmed by Resolution No. 5040-23 as adopted on July 11,
2023,is deleted and in its place is inserted the area described as:
Key Number: 71-03-35-360-020.000-026
Commonly Known As: 1405 Portage Avenue
Legal Description: Lot C Victory Add& Vac Alley N&Adj& Ex Se
Tri Cor to City 20/21 Con w/018-2182-6830 Per
Assessors Req IC 6-1.1-5-16
Key Number: 71-03-35-360-017.000-026
Commonly Known As: 1301 Elwood Avenue
Legal Description: Lot 8 Victory Add
Key Number: 71-03-35-360-016.000-026
Commonly Known As: 1305 Elwood Avenue
Legal Description: Lot 7 Victory Add
SECTION II. Resolution No. 5040-23 is reaffirmed in all other respects and will continue in full
force and effect according to its terms.
SECTION III. This Resolution shall be in full force and effect from and after its adoption by the
Common Council and approved by the Mayor.
Sharon McBride, Council President
South Bend Common Council
Attest:
Dawn M. Jones, City Clerk
Office of the City Clerk
Presented by me, the undersigned Clerk of the City of South Bend, to the Mayor of the
City of South Bend, Indiana, on the day of 2023, at
o'clock m.
Dawn M. Jones, City Clerk
Office of the City Clerk
Approved and signed by me on the day of 2023,at o'clock
m.
James Mueller, Mayor
City of South Bend
Filed in Clerk's Office
AUG 2's lit3
DAWN M.JONES
CITY CLERK,SOUTH BEND,IN
Filed in Clerk's Office
AUG 2 3 ail
DAWN M.JONES
CITY CLERK,SOUTH BEND,IN
MEMORANDUM OF AGREEMENT
RETAIL DEVELOPMENT REAL PROPERTY TAX ABATEMENT)
This Memorandum of Agreement (Agreement) dated as of August 21, 2023, serves as
confirmation of a commitment by Peak Investment and Asset Management LLC(the"Applicant")
to comply with the project description, job creation and retention (and associated wage rates and
salaries)figures contained in its petition, Statement of Benefits,and attachments and this Agreement.
1. Property Associated with the Abatement and Responsibilities of the Applicant. At the time of
this Agreement,the property is located at 1405 Portage Avenue and 1301-1305 Elwood Avenue,South
Bend, Indiana 46616, and has Key Numbers 71-03-35-360-020.000-026,71-03-35-360-017.000-026,
and 71-03-35-360-016.000-026. Throughout the duration of the abatement, the Applicant shall
promptly report any changes in the addresses or Key Numbers of the property receiving the abatement
to the Department of Community Investment and to the Office of the City Clerk. Moreover, the
Applicant also shall report any material changes or improvements made to the property subject to the
abatement including changes as the result of subdividing, replatting, or otherwise. The Applicant
agrees that failure to promptly report changes can result in a finding of noncompliance on behalf of the
Applicant under the commitments of this Agreement.
2. Commitments of City and Applicant. Subject to the adoption of a resolution correcting a
scrivener's error in Resolution No. 5031-23 and Resolution No. 5040-23 by the South Bend Common
Council (the"SBCC"), the City of South Bend, Indiana, (the"City")commits to provide a five-year
5) retail development real property tax abatement for the Applicant, based on the Applicant's
commitment set forth in its Application. The Applicant commits to the following (the
Commitments"):
a)making total combined real property expenditures of no less than One Million Four Hundred
Thousand Dollars ($1,400,000.00) for the construction of two (2) new retail buildings totaling
approximately ten thousand three hundred (10,300) square feet at property identified in Section 1 of
this Agreement; and
b) acting in good faith to complete the project as described in its Application.
3. Applicant's Compliance with City and State Laws. During the term of the abatement, the
Applicant shall comply with Chapter 2, Article 6, of the South Bend Municipal Code, entitled "Tax
Abatement Procedures," and all governing provisions of the Indiana Code. During the term of this
abatement,the City may annually request information from the Applicant concerning the nature of the
Project, the approved capital expenditure of the Project, the number of full-time permanent positions
newly created by the Project,and the average wage rates and salaries(excluding benefits&overtime)
associated with the positions,and the Applicant shall provide the City with adequate written evidence
thereof within fifteen (15) days of such request (the "Annual Survey"). The City shall utilize this
information and the information required to be filed by the Applicant in the CF-1 Compliance with the
Statement of Benefits form to verify that the Applicant has at all times complied with the Commitments
after the Commitment Date and during the duration of the abatement and for no other purpose. The
Applicant further agrees to provide the City with such additional information as requested by the City
1
to determine Applicant's compliance with the Commitments and with local and state requirements
within twenty(20)days following any such request.Notwithstanding anything herein to the contrary,
the Applicant acknowledges that the City may be required to disclose certain documents provided by
the Applicant as required by a court order or applicable law.
4. Substantial Compliance and Rights of Termination. The City, by and through the SBCC,
reserves the right to terminate the Economic Revitalization Area designation and associated property
tax abatement deductions if it reasonably determines that the Applicant has not made reasonable efforts
to substantially comply with all the Commitments, as defined in Section 2 of this Agreement,and the
Applicant's failure to substantially comply with the Commitments was not due to factors beyond its
reasonable control,as described in Section 5 below.
5. Factors Beyond Control. As used in this Agreement, factors beyond the control of the
Applicant shall only include factors not reasonably foreseeable at the time of designation application
and submission of Statement of Benefits which are not caused by any act or omission of the Applicant,
and which materially and adversely affect the ability of the Applicant to substantially comply with this
Agreement.Applicant has the burden to communicate to the City any such factors in which it believes
is beyond its control and impacting its ability to fulfill the terms of this Agreement or any tax abatement
benefit provided to the City. The City reserves the right to investigate the factors cited by Applicant
under this Section 5 to the fullest extent possible and may deny Applicant's request upon the
completion of the City's investigation.
6. Repayment of Tax Abatement Savings. If at any time during the term of this Agreement the
Applicant shall: (a)be delinquent or in default with respect to any tax payment in St. Joseph County,
Indiana;or(b)cease operations at the facility for which the tax abatement was granted;or(c)announce
the cessation of operations at such facility, then the City may immediately terminate the Economic
Revitalization Area designation and associated tax abatement deductions,and upon such termination,
require Applicant to repay all of the tax abatement savings received through the date of such
termination.
7. Notice/Hearing of Termination. In the event that the City determines that the Economic
Revitalization Area designation and associated tax abatement deductions should be terminated or that
all or a portion of the tax abatement savings should be repaid,it will give the Applicant notice of such
determination, including a written statement calculating the amount due from the Applicant, and will
provide the Applicant with an opportunity to meet with the City's designated representatives to show
cause why the abatement should not be terminated and/or the tax savings repaid. Such notice shall
state the names of the person with whom the Applicant may meet and will provide that the Applicant
shall have thirty (30) days from the date of such notice to arrange such meeting and to provide its
evidence concerning why the abatement termination and/or tax savings repayment should not occur.
If,after giving such notice and receiving such evidence,if any,the City determines that the abatement
termination and/or the tax repayment action is proper, the Applicant shall be provided with written
notice and a hearing before the SBCC before any final action shall be taken terminating the abatement
and/or requiring repayment of tax benefits. The Applicant shall be entitled to appeal that determination
to a St.Joseph County Superior or Circuit Court.
8. Repayment. In the event the City requires repayment of the tax abatement savings as provided
hereunder, it shall provide Applicant with a written statement calculating the amount due (the
Statement"),and Applicant shall make such repayment to the City within one hundred twenty(120)
days of the date of the Statement. If the Applicant does not make timely repayment,the City shall be
entitled to all reasonable costs and attorneys' fees incurred in the enforcement of this Agreement and
the collection of the tax abatement savings required to be repaid hereunder.
9. Voidance of Previous Agreement. This Agreement supersedes the Memorandum of
Agreement dated June 28,2023,as agreed to by the Applicant and the City.
10. Modification/Entire Agreement. This Agreement and the schedules attached hereto as Exhibit
A contain the entire understanding between the City and the Applicant with respect to the subject
matter hereof, and supersede all prior and contemporaneous agreements and understandings,
inducements, and conditions, expressed or implied,oral, or written, except as herein contained. This
Agreement may not be modified or amended other than by an agreement in writing signed by the City
and the Applicant. The Applicant understands that any and all filings required to be made or actions
required to be taken to initiate or maintain the abatement are solely the responsibility of the Applicant.
11. Waivers. Neither the failure nor any delay on the part of the City to exercise any right,remedy,
power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right,remedy,power,or privilege preclude any other or further exercise of the
same or of any other right,remedy,power,or privilege with respect to any occurrence or be construed
as a waiver of such right,remedy,power,or privilege with respect to any other occurrence. No waiver
shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
12. Governing Laws of Indiana. This Agreement and all questions relating to its validity,
interpretation,performance,and enforcement shall be governed by the laws and decisions of the courts
of the State of Indiana.
13. Applicant's Consent to Jurisdiction. The Applicant hereby irrevocably consents to the
jurisdiction of the Courts of the State of Indiana and of the St.Joseph County Circuit or Superior Court
in connection with any action or proceeding arising out of or relating to this Agreement or any
documents or instrument delivered with respect to any of the obligations hereunder, and any action
related to this Agreement shall be brought in such County and in such Court.
14. Notices. All notices, requests, demands, and other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been received when delivered by
hand or by facsimile (with confirmation by registered or certified mail) or on the third business day
following the mailing,by registered or certified mail,postage prepaid,return receipt requested,thereof,
addressed as set forth below:
3
If to Applicant: Peak Investment and Asset Management LLC
5199 Gardenia Court
West Lafayette,Indiana 47906
Attn: Praveen Gulati,Owner
If to the City: City of South Bend,Indiana
227 W.Jefferson Boulevard, Suite 1400S
South Bend,Indiana 46601
Attn: Executive Director of Community
Investment
15. Assignment and Transfer Prohibited. This Agreement shall be binding upon and inure to the
benefit of the City and the Applicant and their successors and assigns, except (a) that no party may
assign or transfer its rights or obligations under this Agreement without the prior written consent of
the other party hereto, in which consent shall not be unreasonably withheld, and (b) Applicant may
assign and transfer its rights under this Agreement to the Permitted Assign without prior written
consent. `Permitted Assign" means the affiliated single purpose entity created for purposes of
designing, constructing, owning, operating, and maintaining the project which is the subject of this
Agreement.
16. Valid and Binding- Agreement. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any party whose signature
appears thereon,and all of which shall together constitute one and the same instrument. By executing
this Agreement, each person so executing affirms that he has been duly authorized to execute this
Agreement on behalf of such party and that this Agreement constitutes a valid and binding obligation
of the party.
17. Severability. The provisions of this Agreement and of each section or other subdivision herein
are independent of and separable from each other,and no provision shall be affected or rendered invalid
or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or
unenforceable in whole or in part unless this Agreement is rendered totally unenforceable thereby.
18. No Personal Liability. No official, director, officer, employee, or agent of the City shall be
charged personally by the Applicant, its employees, or its agents with any liabilities or expenses of
defense or be held personally liable to the Applicant under any term or provision of this Agreement or
because of the execution by such party of this Agreement or because of any default by such party
hereunder.
Remainder of page intentionally blank.[
4
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day and year first
above written.
Applicant" City"
Peak Investment and Asset Management LLC City of South Bend, Indiana
By: By: -
Praveen Gulati Sharon McBride
Owner President, South Bend Common Council
Peak Investment and Asset
Management LLC
Approved as to Legal Adequacy and Form this
Rachel Tomas Morgan
day of 2023. Chairperson, Community Investment
Committee
Counsel, South Bend Common Council r2 / ))
By:
Erik Glavich
Department of Community Investment
Counsel for Applicant
By:
James Mueller
Mayor
5
EXHIBIT A
Abatement Schedule
Subject to the adoption by the SBCC of a resolution correcting a scrivener's error in Resolution No.
5031-23 and Resolution No. 5040-23, the property owner is qualified for and is granted a retail
development real property tax abatement for a period of five (5) years as shown by the schedule
outlined below.
Year 1 - 100%
Year 2 -90%
Year 3 -80%
Year 4-70%
Year 5 -60%
Filed in Clerk's Office
1
AUG l :1
DAWN M,JONES
CITY CLERK,SOUTH BEND,IN
F)
RESOLUTION
No. 5031-23
Passed by the Common Council of the City of South Bend, Indiana
June 26, 20 23
Attest: /(-1"6/ttest:
67:2( City Clerk
Dawn M. Jones
C\
Attest haA(:l / 1 ( President of Common Council
V
Presented by me to the Mayor of the City of South Bend, Indiana
June 27, 23
20
4/1/AC) i City Clerk
Dawn M. Jones
Approved and signed by me
1
I
20
2
Mayor
BILL NO. 23-34
RESOLUTION NO. 5031-23
A RESOLUTION OF THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND DESIGNATING CERTAIN AREAS WITHIN
THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS
1405 Portage Avenue, South Bend, IN 46616
AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A
FIVE-YEAR (5) REAL PROPERTY TAX ABATEMENT FOR
Peak Investment and Asset Management LLC
WHEREAS, a petition for real property tax abatement consideration has been filed with
the City Clerk for consideration by the Common Council of the City of South Bend, Indiana,
requesting that the area described as:
Key Number: 71-03-35-360-020.000-026
Commonly Known As: 1405 Portage Avenue
Legal Description: Lot C Victory Add& Vac Alley N&Adj& Ex Se
Tri Cor to City 20/21 Con w/018-2182-6830 Per
Assessors Req IC 6-1.1-5-16
be designated as an Economic Revitalization Area under the provisions of Indiana Code 6-1.1-
12.1 et seq. and South Bend Municipal Code Sections 2-76 et seq.; and
WHEREAS,petitioner has agreed to and has accepted responsibility to report any changes
in the Key Number and legal description to the Department of Community Investment and to the
Office of the City Clerk; and
WHEREAS,the Department of Community Investment has concluded an investigation and
prepared a report with information sufficient for the Common Council to determine that the area
qualifies as an Economic Revitalization Area under Indiana Code 6-1.1-12.1 et seq. and South
Bend Municipal Code Sections 2-76 et seq., and has further prepared maps and plats showing the
boundaries and such other information regarding the area in question as required by law; and
WHEREAS,the Community Investment Committee of the Common Council has reviewed
said report and recommended to the Common Council that the area qualifies as an Economic
Revitalization Area.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South
Bend, Indiana, as follows:
SECTION I. The Common Council hereby determines and finds that the Petition for Real Property
Tax Abatement and the Statement of Benefits form completed by the Petitioner meet the
requirements of Indiana Code 6-1.1-12.1 et seq. for tax abatement.
SECTION II. The Common Council hereby determines and finds the following:
A. That the description of the proposed redevelopment or rehabilitation meets the
applicable standards for such development;
B. That the estimate of the value of the redevelopment or rehabilitation is reasonable
for projects of this nature;
C. That the estimate of the number of individuals who will be employed or whose
employment will be retained by the Petitioner can reasonably be expected to result from the
proposed described redevelopment or rehabilitation;
D. That the estimate of the annual salaries of those individuals who will be employed
or whose employment will be retained by the Petitioner can be reasonably expected to result from
the proposed redevelopment or rehabilitation;
E. That the other benefits about which information was requested are benefits that can
be reasonably expected to result from the proposed described redevelopment or rehabilitation; and
F. That the totality of benefits is sufficient to justify the requested deduction, all of
which satisfy the requirements of Indiana Code 6-1.1-12.1-3.
SECTION III. The Common Council hereby determines and finds that the proposed described
redevelopment or rehabilitation can be reasonably expected to yield benefits identified in the
Statement of Benefits, Sections 1 through 3 of the Petition for Real Property Tax Abatement
Consideration and the Memorandum of Agreement between the Petitioner and the City of South
Bend, and that the Statement of Benefits form completed by the petitioner, said form being
prescribed by the State Board of Accounts, is sufficient to justify the deduction granted under
Indiana Code 6-1.1-12.1-3.
SECTION IV. The Common Council hereby accepts the report and recommendation of the
Community Investment Committee that the area herein described be designated as an Economic
Revitalization Area and hereby adopts a Resolution designating the area as an Economic
Revitalization Area for purposes of real property tax abatement.
SECTION V. The designation as an Economic Revitalization Area shall expire on December 31,
2026.
SECTION VI. The Common Council hereby determines that the property owner is qualified for
and is granted property tax deduction for a period of five (5) years as shown by the schedule
outlined below as well as the attachment pursuant to Indiana Code 6-1.1-12.1-17.
Year 1 - 100%
Year 2 - 90%
Year 3 - 80%
Year 4 - 70%
Year 5 - 60%
SECTION VII. The Common Council directs the City Clerk to cause notice of the adoption of
this Declaratory Resolution for Real Property Tax Abatement to be published pursuant to Indiana
Code 5-3-1 and Indiana Code 6-1.1-12.1-2.5, said publication providing notice of the public
hearing before the Common Council on the proposed confirming of said declaration.
SECTION VIII. This Resolution shall be in full force and effect from and after its adoption by the
Common Council and approval by the Mayor.
Afitite.yt hl t_
Sheh McBride, Council President
South Bend Common Council
Attest:
bid,Ctei. '7"% , V*6"..41
Dawn M. Jones, City Clerk
Office of the City Clerk
Presented by me, the undersigned Clerk of the City of South Bend, to the Mayor of the
City of South Bend, Indiana, on the 02, day of 2023, at 02
o'clock p .m.
4,:et, c ' (' . /
Dawn M. Jones, City Clerk
Office of the City Clerk
Approved and signed by me on the 1' day of 117y 2023, at o'clock
m.
Js Mueller, Mayor
Ci of South Bend