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HomeMy WebLinkAbout1992-06-26 Resolution 59RESOLUTION NO. 59 RESOLUTION OF THE SOUTH BEND REDEVELOPMENT AUTHORITY APPROVING A PROPOSED LEASE FOR CERTAIN LAND AND PUBLIC IMPROVEMENTB BETWEEN TH8 SOUTH BEND REDEVELOPMENT AUTHORITY, AS LESSOR, AND THE SOUTH BEND REDEVELOPMENT COMMISSION, AS LESSEE, APPROVING PRELIMINARY PLANS, SPECIFICATIONS AND COST ESTIMATES FOR THE PROJECTS AND OTHER RELATED MATTERS WHEREAS, the South Bend Redevelopment Authority (the "Authority") intends to issue its South Bend Redevelopment Authority Lease Rental Revenue Bonds (the "Bonds") to finance the construction of a golf course (the "Project"); and WHEREAS, the preliminary plans, specifications and cost estimates for the Project have been filed with the Authority and r the Authority desires to approve them; and WHEREAS, the Authority desires to enter into and adopt a proposed lease to be dated as of July 1, 1992, with the South Bend Redevelopment Commission (the "Commission") in the form presented at this meeting, a copy of which is attached hereto as Exhibit A, for the purpose of paying the principal and interest on its Bonds issued to finance the Project, pursuant to IC 36-7-14.5- 19; and WHEREAS, the Authority desires to enter into an Agency Agreement with City of South Bend by and through its Board of Public Works to provide for the construction of the Project by the Board of Public Works and other related matters, a copy of which is attached hereto as Exhibit B; NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT AUTHORITY AS FOLLOWS: 1. The Authority hereby approves the preliminary plans, specifications and cost estimates for the Project. 2. The Authority hereby approves the proposed lease between the Authority and the Commission to be dated as of July 1, 1992, in the form presented at this meeting and as attached hereto as Exhibit A. 3. The Secretary of the Authority is hereby directed to file a copy of the proposed lease, as approved, with the Commission. 4. The Authority hereby approves the execution of the Agency Agreement with the City of South Bend by and through its • Board of Public Works as attached hereto as Exhibit B and the Secretary is hereby directed to file a copy of the Agency Agreement with the Board of Public Works. 4. This resolution shall be in full force and effect after its adoption by the Authority. -2- ADOPTED at a meeting of the South Bend Redevelopment Authority held on June 26, 1992, at the office of the Authority, 1200 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana. SOUTH BEND REDEVELOPMENT AUTHORITY Donald Fewell, Secretary Treasurer ~i By: J eph roblewski, President ATT ST• rrrompol\sthbend\golfcour.se\lulease.59;tmg;6/24/92 -3- • E%HIBIT A LEASE Between SOUTH BEND REDEVELOPMENT AUTHORITY and SOUTH BEND REDEVELOPMENT COMMISSION DATED AS OF JULY 1, 1992 (Blackthorn Golf Course Project) INDEX Section 1. Definitions Section 2. Lease of Project Section 3. Rental Payments Section 4. Rental Payment Dates Section 5. Abatement of Rent Section 6. Net Lease Section 7. Nonliability of Authority Section 8. Alterations Section 9. Insurance Section 10. Use of Insurance and • Condemnation Proceeds Section 11. Liability Insurance Section 12. General Insurance Provisions Section 13. General Covenants Section 14. Option to Purchase Section 15. Defaults Section 16. Notices Section 17. Construction of Covenants Section 18. Successors or Assigns Exhibit A Permitted Encumbrances Exhibit B Project Description 1 2 3 3 4 5 5 5 5 6 6 6 7 7 8 8 8 8 -i- LEASE This Lease entered into as of the 1st day of July, 1992, between the SOUTH BEND REDEVELOPMENT AUTHORITY, a body corporate and politic organized and existing under Indiana Code 36-7-14.5 (the "Authority) and the SOUTH BEND REDEVELOPMENT COMMISSION, the governing body of the South Bend Department of Redevelopment and the Redevelopment District of the City of South Bend, Indiana (the "Lessee"), acting for and on behalf of the City of South Bend, Indiana. WITNESSETH: Section 1. Definitions. The terms defined in this Section 1 shall for all purposes of this Lease have the meanings herein specified unless the context otherwise requires. "Act".means Indiana Code 36-7-14.5, as the same from time to time may be amended or supplemented. "Authority" means the South Bend Redevelopment Authority, a body corporate and politic organized and existing under the Act, or if said Authority shall be abolished, the authority, board, body, instrumentality or agency succeeding to the principal • functions thereof. "Bonds" means South Bend Redevelopment Authority Lease Rental Revenue Bonds (Blackthorn Golf Course Project). "Lease" means this Lease as the same may be amended, modified or supplemented by any amendments or modifications hereof or supplements hereto entered into in accordance with the provisions hereof. "Lessee" means the South Bend Redevelopment Commission, the governing body of the South Bend Department of Redevelopment and the Redevelopment District of the City of South Bend, Indiana,. or if said Commission shall be abolished, the commission, board, body or~agency succeeding to the principal functions thereof. "Lease Resolution" means the resolution of the Commission passed on 1992, establishing funds for the payment of lease rentals. "Blackthorn Golf Course Principal and Interest Account" means the account by that name created in the Redevelopment District Bond Fund by the Lease Resolution. "Permitted Encumbrances" means those items listed in Exhibit • A hereto and any future (a) liens for taxes not then delinquent, (b) this .Lease and the Trust Agreement, leases, subleases and other agreements permitted pursuant to Section 13 hereof, (c) utility, access and other easements and rights-of-way, restrictions and i exceptions that Lessee certifies will not interfere with or impair the Project, (d) any mechanics', laborers', materialmen's, suppliers' or vendors' lien or right in respect thereof if payment is not yet due and payable and (e) such minor defects, irregularities, encumbrances, easements, rights-of-way and clouds on title as do not, in the opinion of the Trustee, materially impair the Authority's title or Lessee's use of the Project. "Project" means the real estate (including all right-of-way easements contained therein) in St. Joseph County, Indiana, and improvements to be constructed thereon by the Authority or its agent according to the plans and specifications prepared by Hurdzan Golf Design, Inc., Cole Associates and Eckenhoff Saunders Architects, project architects and engineers, all as described in Exhibit B hereto. The above mentioned plans and specifications may be changed and additional construction work may be performed and improvements may be purchased by the Authority, but only .with the approval of the Lessee, and only if such changes or modifications or additional construction work or improvements do not alter the character of the Project or reduce the value thereof. Any such additional construction work or additional improvements shall be part of the property covered by this Lease. The above-mentioned plans and specifications have been filed with and approved by the Lessee. "Redevelopment District Bond Fund" means the Redevelopment District Bond Fund of Lessee authorized by Indiana Code 36-7-14-27 and the Lease Resolution. "Trust Agreement" means the Trust Agreement dated as of 1992, between the Authority and the Trustee, securing the Bonds. "Trustee" means the financial institution selected to serve as trustee pursuant to the Trust Agreement, and any successor trustee. Any term not defined herein, which is defined in the Lease Resolution or in the Trust Agreement, shall have the meaning as defined in such resolution or agreement. Section 2. Lease of Project. In .consideration of the rentals and other terms and conditions herein specified the Authority does hereby lease, demise and let to the Lessee the Project: TO HAVE AND TO HOLD the same with all rights, privileges, easements and appurtenances thereunto belonging, unto the Lessee for a term not to exceed twenty (20) years, beginning on the date the Project is complete and ready for use, and ending on the day prior to such date at most twenty (20) years thereafter. However, the term of this Lease shall terminate at the earlier of (a) the exercise of the option to purchase by Lessee and payment of the . option price, or (b) the payment or defeasance of all obligations -2- of Lessor incurred (i) to finance the cost of the leased property, (ii) to refund such obligations, (iii) to refund such refunding obligations.. The date the Project is complete and ready for use shall be endorsed on this Lease at the end hereof by the parties hereto as soon as the same can be done after such completion date and such endorsement shall be recorded as an addendum to this Lease. The Authority hereby represents-that it is possessed of, or will acquire, a good and indefeasible estate in fee simple or an insurable right-of-way easement subject only to Permitted Encumbrances, to the above-described real estate, and the Authority warrants and will defend the same against all claims whatsoever not suffered or caused by the acts or omissions of the Lessee. Section 3. Rental Payments. (a) During the term of this Lease, the Lessee agrees to pay rental for said premises as set forth in Section 4 hereof. Such rental shall be paid from the Blackthorn Golf Course Principal and Interest Account. of the Redevelopment District Bond Fund. All rentals payable under the terms of this Lease shall be paid to the Trustee or to such other bank or trust company as may from time to time succeed the Trustee under the Trust Agreement. All payments so made shall be considered as payments to the Authority of the rentals payable hereunder. The Lessee shall receive credit for any Bond maturing within seven (7) days of the date of the lease rental payment, at the face value thereof, which the Lessee acquires and delivers to the Trustee as a part of its lease rental payment; (b) as . additional rental the Lessee agrees to pay all fees, charges and reimbursement of expenses of the Trustee under the Trust Agreement and all prudent charges and expenses of the Authority incurred in the performance of its obligations hereunder. Section 4. Rental Payment Dates and Amounts. The first semiannual rental installment in the amount of Four Hundred Forty- Seven Thousand Five Hundred Dollars ($447,500) shall be due on the day that the Project is completed and ready for use or February 25, 1996, whichever is later. If completion is later than February 25, 1996, the first installment shall be in an amount which provides for rental at the rate of $447,500 for the semiannual period in which the Project is completed and ready for use, prorated from the date__ of completion until the first February 25 or August 25 following such date of completion. Thereafter such rentals shall be payable in advance in semiannual installments of $447,500 on February 25 and August 25 of each year. The last semiannual rental payment due before the expiration of this Lease shall be adjusted to provide for rental at the amount specified above for the applicable semiannual period prorated from the date such installment is due to the date of the expiration of this Lease (without taking into account any subsequent early termination of this Lease pursuant to Section 2 hereof). After the sale of the Bonds issued by the Authority to pay the cost of the acquisition of the property therefor and other -3- • expenses incidental thereto, the sum of the first and second semiannual rental installments and the sum of the third and fourth semiannual rental: installments, and so on, shall be reduced to an amount equal to the multiple of One Thousand Dollars ($1,000) next highest to the highest sum of principal and interest due in any year ending on a Bond maturity date on such Bonds plus Two Thousand Dollars ($2,000), payable in equal semiannual installments. Such amount of reduced annual rental shall be endorsed on this Lease at the end hereof by the parties hereto as soon as the same can be done after the sale of said Bonds, and such endorsement shall be recorded as an addendum to this Lease. The Lessee will not take any action or fail to take any action that would result in the loss of the exclusion from gross income for federal tax purposes of interest on the Bonds pursuant to Section 103(a) of the Internal Revenue Code of 1986, as amended (the "Code"), as in effect on the date of delivery of the Bonds, nor will the Lessee act in any manner which would adversely affect such exclusion. The Lessee further covenants that it will not make any investment or do any other act or thing during the period that any Bond is outstanding hereunder which would cause any Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and the regulations thereunder as in effect on the date of delivery of the Bonds. All officers, members, employees and agents of the Lessee are authorized and directed to provide certifications of facts and estimates that are material to the reasonable • expectations of the Lessee as of the date the Bonds are issued and to enter into covenants on behalf of the Lessee evidencing the Lessee's commitments made herein. Section 5. Abatement of Rent. In the event that all or a portion of the Project shall be damaged or destroyed so as to render the damaged or destroyed portion of the Project unfit for its intended use, it shall then be the obligation of the Authority to restore and reconstruct the damaged or destroyed portion of the Project as promptly as may be done, unavoidable strikes and other causes beyond the control of the Authority excepted, if, in .the opinion of an independent registered architect, registered engineer, construction manager or contractor selected by the Lessee and .acceptable to the Trustee, (i) the cost of such restoration or reconstruction does not exceed the amount of the proceeds received by the Authority from the insurance provided for in Section 9 hereof plus other moneys available therefor and (ii) such restoration or reconstruction can be completed within the period of time covered by the rental value insurance provided for in Section 9 hereof. If either or both conditions shall not exist, the proceeds received from the insurance provided for in Section 9 hereof shall be applied to the option to purchase price provided for in Section 14 hereof. The rental shall be abated pro rata for the period during which the damaged or destroyed portion of the Project is unfit for its intended use. -4- • Section 6. Net Lease. It is expressly understood and agreed that this Lease shall be what is known as a net lease (i.e., the rent being absolutely net to the Authority and that all other expenses in connection with the Project of any nature whatsoever shall be those of the Lessee) and that during the lease term the Lessee shall be obligated to pay as its expenses without reimbursement from the Authority all costs of taxes and assessments, if any, and maintenance., operation and use in connection with or relating to the Project, including but not limited to all costs and expenses of all services, repair or replacement of all parts of the Project or improvements of the Project . Section 7. Nonliability of Authority. The Authority shall not be liable for damage caused by hidden defects or failure to keep the Project in repair and shall not be liable for any damage done or occasioned by or from plumbing, gas, water, or other pipes or the bursting or leaking of plumbing or heating. fixtures in connection with said premises, nor for damage occasioned by water, snow or ice. The Authority shall not be liable for any injury to the Lessee or any sublessee of the Lessee or any other person which injury occurs on, in or about the Project howsoever arising. The Authority shall not be liable for damage to the Lessee's property or to the property of any sublessee of the Lessee or of any other person which may be located in, upon or about the Project . Section 8. Alterations. Lessee shall have the right, without the consent of the Authority, to make all alterations, modifications and additions and to do all improvements it deems necessary or desirable to the Project, which do not reduce the rental value of the Project. Section 9. Insurance. The Lessee, at its own expense, will, during the full term of the Lease, keep the Project insured against physical .loss or damage, however caused, with such exceptions as are ordinarily required by insurers of properties of a similar type, in good and responsible insurance companies acceptable to the Authority. Such insurance shall be in an amount at least equal to the greater of (i) the option to purchase price or~(ii) one hundred percent (100$) of the full replacement cost of such Project as certified by a registered architect, a registered engineer, or professional appraisal engineer, selected by the Authority with the approval of the Trustee, on the effective date of this Lease and on or before the first day of April of each year thereafter; provided that such certification shall not be required so long as the amount of such insurance shall be in an amount at least equal to the option to purchase price. Such appraisal may be based upon a recognized index of conversion factors. In no event shall the insurance be in an amount which causes the Lessee to be a co-insurer for the Project. Such insurance may contain a provision for a deductible in an amount not exceeding $25,000. -5- • Lessee agrees to pay the deductible amount of any loss to the Authority. A blanket public institutional property insurance form may be used if: (a) the. insurance on the Project is not less than the amount required by this Section, (b) the Lessee subordinates its claim for damage or destruction to other buildings or improvements to claims for damage or destruction of the Project, and (c) the insurance proceeds related to damage to or destruction of the Project are payable to the Trustee. During the full term of this Lease, the Lessee will also, at its own expense, maintain rental or rental value insurance in an amount at least equal to the full rental specified in Section 4 for a period of two (2) years against physical loss or damage of the type insured against pursuant to the preceding requirements of this Section. Such policies shall be for the benefit of and shall be made payable to the Trustee. Section 10. Use of Insurance and Condemnation Proceeds. Proceeds of insurance against damage to or destruction of the Project or proceeds of any condemnation of the Project shall be paid to and held by the Trustee and used to pay for reconstruction or replacement of the Project in accordance with plans approved by the Authority and the Lessee, unless the Lessee elects to exercise its option to purchase. South Bend. Section 11. Liability Insurance. The Lessee shall, at all times during the full term of this Lease, keep in effect, public liability and property damage insurance, insuring the Lessee, the Authority and the Trustee in amounts customarily carried for similar properties. Such insurance may be provided under the public liability self insurance program of the City of Section 12. General Insurance Provisions. All insurance policies required by Sections 9 and 11, other than insurance provided under the public .liability self insurance program of the City of South Bend., shall be with insurance. companies rated B+ or better by A.M. Best Company (or a comparable rating service if A.M. Best company ceases to exist or rate insurance companies), and shall be countersigned by an agent of the insurer who is a resident of the State of Indiana, and such policies,. or copies thereof, and the certificate of the architect or engineer referred to in Section 9 shall be deposited-with the Authority and the Trustee. If, at any time, the Lessee fails to maintain insurance in accordance with Sections 9 and 11, such insurance may be obtained by the Authority, or may be obtained by the Trustee, and the amount paid for such insurance shall be added to the amount of rental payable by the -6- • Lessee under this Lease; provided, however, that neither the Authority nor the Trustee shall be under any obligation to obtain such insurance, and any action or non-action of the Authority or Trustee in this regard shall not relieve the Lessee of any consequences of a default in failing to obtain such insurance. Section 13. General Covenants. The Lessee shall not assign this Lease. The Lessee covenants that, except for Permitted Encumbrances, it will not encumber the Project, or permit any encumbrance to exist thereon, and that it shall use and maintain the Project in accordance with the laws and ordinances of the United States of America, the State of Indiana, and all other proper governmental authorities. The Authority agrees that it will, at the request of the Lessee, execute and deliver to or upon the order of the Lessee such instrument or instruments as may be reasonably required by the Lessee in order to subject the Project, or the Authority's interest therein, to such encumbrances as shall be specified in such request and as shall be permitted by the provisions of this Section 13 or otherwise by the definition of "Permitted Encumbrances". Section 14. Option to Purchase. The Authority hereby grants Lessee the right and option, on-any rental payment date, upon thirty days' written notice to the Authority, to purchase the Project at a price equal to the amount required to enable the Authority to provide for the redemption of all outstanding Bonds, • all premiums payable on the redemption thereof, and accrued and unpaid interest, and to pay the cost of redeeming the Bonds and liquidating the Authority if it is to be liquidated. Upon request of the Lessee, the Authority agrees to furnish an itemized statement setting forth the amounts required to be paid by the Lessee on the next rental payment date in order to purchase the Project in accordance with the preceding paragraph. If the Lessee exercises its option to purchase, the Lessee shall pay to the Trustee that portion of the purchase price which is required to provide for the payment of all the Bonds, including all premiums payable on the redemption thereof, accrued and unpaid interest thereon and the costs of redemption thereof. Such payment shall not be made until the Trustee gives to the Lessee a written statement that such amount will be sufficient to retire all Bonds including all premiums payable on the redemption thereof and accrued and unpaid interest. The remainder of such purchase price,. if any, shall be paid by the Lessee to the Authority. Nothing herein contained shall be construed to provide that the Lessee shall be under any obligation to purchase the Project, or under any obligation in respect to any creditors or bondholders of the Authority. -7- • If the Lessee has not exercised its option to purchase the Project at the expiration of the term of the Lease and upon the full discharge and performance by the Lessee of its obligations under this Lease, the Authority shall execute a deed of the Project to the Lessee conveying good and merchantable title thereto, subject only to Permitted Encumbrances. Section 15. Defaults. If the Lessee shall (a) default in the payment of any rentals or other sums payable to the Authority hereunder, or in the payment of any other sum herein required to be paid for the Authority, (b) fail to comply with the terms set forth in the Lease Resolution, or (c) default in the observance of any other covenant, agreement or condition hereof, and such default under (c) shall continue for ninety (90) days after written notice to correct the same, then, in any of such events, the Authority may proceed to protect and enforce its rights, either at law or in equity, by suit, action, mandamus or other proceedings, whether for specific performance of any covenant or agreement contained herein or for the enforcement of any other appropriate legal or equitable remedy. Section 16. Notices. Whenever either party shall be required to give notice to the other under this Lease, it shall be sufficient service of such notice to deposit the same in the United States mail, in an envelope duly stamped, registered and addressed to the other party at its last known place of business. A copy of any notice shall be mailed by first-class mail to the Trustee at • its last known place of business. Section 17. Construction of Covenants. All provisions contained herein shall be construed in accordance with the provisions of the Act and to the extent of inconsistencies, if any, between the covenants and agreements in this Lease and the provisions of the Act, the provisions of said Act shall be deemed to be controlling and binding upon the parties. Section 18. Successors or Assigns. All covenants of this Lease,. whether by the Authority or the Lessee, shall be binding upon the successors and assigns of the respective parties hereto. i• -8- i~ IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed for and on their behalf as of the day and year first hereinabove written. SOUTH BEND REDEVELOPMENT AUTHORITY By: ATTEST: Joseph W. Wroblewski, President Donald K. Fewell, Secretary SOUTH BEND REDEVELOPMENT COMMISSION i• i• By: ATTEST: Michael Donoho, Secretary Paula N. Auburn, President -9- • STATE OF INDIANA COUNTY OF ST. JOSEPH SS: Before me, the undersigned, a Notary Public in and for said State, personally appeared Joseph W. Wroblewski and Donald K. Fewell, personally known by me to be the President and Secretary, respectively, of the South Bend Redevelopment Authority, and acknowledged the execution of the foregoing Lease for and on behalf of said Authority. WITNESS my hand and Notarial Seal this day of 1992. (Written Signature) • [. (Printed Signature) (SEAL) My commission expires: I am a resident of 5t. Joseph County, Indiana -10- STATE OF INDIANA ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for said State, personally appeared Paula N. Auburn and Michael Donoho, personally known by me to be the President and Secretary, respectively, of the South Bend Redevelopment Commission, and acknowledged the execution of the foregoing Lease for and on behalf of said Commission. WITNESS my hand and Notarial Seal this day of _, 1992 . (Written Signature) (Printed Signature) (SEAL) My commission expires: I am a, resident of St. Joseph County, Indiana. This instrument was prepared by Randolph R. Rompola, BAKER & DANIELS, 205 West Jefferson Boulevard, South Bend, Indiana 46601. \rrrompol\sthbend\golfcour.se\lease;tmg;6/23/92 C -11- EXHIBIT A I• The encumbrances and exceptions to the title set forth on the Policy of Title Insurance covering the real estate and improvements thereon which are subject to the Leas the Bonds are delivered. \rrrompol\sthbend\golfcour.se\exhibit.a;June 25, 1992 e to be provided at the time I 1 ~J i• i• i• EXHIBIT B PROJECT DESCRIPTION The Project consists of the construction of a golf course consisting of the improving and construction of all land therefor, including the construction of a clubhouse and a maintenance building, all of such construction and related improvements to be made on the following described real estate acquired or to be acquired by the Authority: A part of the Southeast Quarter (SE ;) of Section 19, the Northwest Quarter (NW;) and the Southwest Quarter (SW ;) of Section 20, the Northwest Quarter (NW;) and the Southwest Quarter (SW;) of Section 29, and the Southeast Quarter (SE ;) and the Northeast Quarter (NE ;) of Section 30 all in Township 38 North, Range 2 East, German Township, St. Joseph County, Indiana, more particularly described as follows: Commencing at the South Quarter (S ;) corner of Section 20, also being the North Quarter (N;) corner of Section 29; thence South 00° 10' 44" East (this and all subsequent bearings being referenced to the east line of the Southwest Quarter (SW ;) of Section 20 which has a Grid Bearing of North 00° 19' 53" West) a distance of 970.00 feet along the East line of the Northwest Quarter (NW;) of Section 29, to the Point of .Beginning of this description; thence South 00° 10' 44" East a distance of 1677.30 feet along, the north/south quarter section line I• I• of Section 29 to the center of Section 29; thence continuing South 00° 10' 44" East a distance of 50.01 feet along said north/south quarter section line; thence North 89° 16' 09" West a distance of 2631.68 feet along a line parallel with the 50.00 feet south of the east/west quarter section line of Section 29; thence North 89° 41' 22" West a distance of 1642.29 feet along a line parallel with and 50.00 feet south. of the east/west quarter section line of Section 30, to a point on the east right of way line of the U.S. 31 Bypass, said point also being the point of curvature of a nontangent curve to the left having a radius of 21,675.92 feet, an internal angle of 00° 17' 49" and a long chord bearing North 00° 51' 32" East a length of 112.31 feet; thence northerly along said curve, also being along said east right of way line, a distance of 112.31 feet to the point of tangency of said curve; thence North 03° 07' 05" West a distance of 502.50 feet along said east right of way line of the U.S. 31 Bypass; thence North 00° 12' 37" East a distance of 1000.00 feet parallel with and 160.00 feet east of the centerline of the U.S. 31 Bypass, along said east right of way line; thence North 04° 01' 28" East a distance of 300.67 feet along said east right of way line; thence North 00° 12' 37" East a distance of 350.00 feet along said east right of way line; thence South 89° 47' 23" East a distance of 90.00 feet along said right -2- i• of way line; thence North 00° 12' 37" East a distance of 206.90 feet .along said east right of way line to the intersection of said east right of way .line of the U.S. 31 Bypass with the south right of way line of Nimtz Parkway (formerly known as Cleveland Road); thence South 89° 47' 23" East a distance of 329.80 feet parallel with and 215.00 feet south of the centerline of Nimtz Parkway, also being parallel with and 215.00 feet south of the north line of the Northeast Quarter (NE ;) of Section 30 and the south line of the Southeast (SE ;) of Section 19, along said south right of way line; thence North 86° 03' 24" East a distance of 897.43 feet along said south right of way line; thence North 00° 12' 37" East a distance of 80.00 feet; thence South 89° 47' 23" East a distance of 332.50 feet parallel with and 70.00 feet south of said centerline of Nimtz Parkway to the east line of the Northeast Quarter (NE ;) of Section 30; thence North 00° 08' S5" East a distance of 34.72 feet along said east line to the southerly right of way line of Nimtz Parkway, also being the point of curvature of a nontangent curve to the left having a .radius of 790.00 feet, an internal angle of 26° 13' 04" and a long chord bearing North 68° 35' 37" East a length of 358.35 feet; thence northeasterly a distance of 361.49 feet along said southerly right of way line of Nimtz Parkway, also along said curve to the point of tangency of said nontangent -3- C: i• curve; thence South 38 ° 45' 02" East a distance of 375.00 feet; thence. North 62° 49' S4" East a distance of 315.00 feet to a point which is 45 feet south of the north line of the Northwest Quarter (NW,) of Section 29, said line also being the centerline of Old Cleveland Road; thence North 00° 17' 19" East a distance of 325.68 feet; thence North 57° 33' 26" West a distance of 286.74 feet to the Easterly right of way line of Nimtz Parkway also being the point of curvature of a nontangent curve to the left having a radius of 790.00 feet, an internal angle of 21° 35' 14" and a long chord bearing North 13° 06' 23" East a length of 295.89 feet; thence northeasterly a distance of 297.65 feet along said easterly right of way line of Nimtz Parkway, also along said curve to the point of tangency of said nontangent curve; thence South 87° 41' 14" East a distance of 356.33 feet; thence North 00° 19' 53" West a distance of 830.00 feet; thence North 72° 09' 22" East a distance of 300.00 feet; thence North 06° 58' 14" East a distance of 450.00 feet to the south right of way line of Nimtz Parkway; thence North 89° 58' 14" East a distance of 340.52 .feet along said south right of way line of Nimtz Parkway; thence South 24° 07' 12" East a distance of 438.16 feet; thence South 10° 15' 27" East a distance of 406.08 feet; thence South 00° 10' 44" East a distance of 700.00 feet; thence South 48° 59' 18" West a distance of 856.51 feet to the north. right of way line -4- • of Old Cleveland Road; thence South 00° 10' 44" East a distance of .580.00 feet; thence South 52° 59' 49" East a distance of 689.95 feet; thence South 89° 27' 09" East a distance of 750.00 feet to the Point of Beginning, containing 269.867 acres more or less. Said parcel of ground is subject to a 25 foot easement in favor of the City of South Bend for I/N Kote Sanitary Sewer force main. • \rrrompol\sthbend\Sol£cour.se\lease.exb;tmg;6/24/92 C -5- ' EBHIBIT B AGENCY AGREEMENT This Agency Agreement ("Agency Agreement"), made and entered into as of the day of , 1992, by the South Bend Redevelopment Authority (the "Authority") and the City of South Bend, Indiana, a municipal corporation duly organized and existing pursuant to the laws of the State of Indiana acting by and through its Board of Public Works (the "Board of Public Works"), for purposes of the Authority designating the Board of Public Works to act as its agent for purposes of constructing an eighteen (18) hole golf course consisting of the improving and construction of all land therefor, including the construction of a clubhouse and maintenance building (the "Project") and other matters related • thereto. W I T N E S S E T H: WHEREAS, the Authority at a meeting on June 26, 1992, adopted Resolution No. 59 approving a proposed Lease for the Project (the "Lease"), a copy of which Lease is attached hereto as "Exhibit A", between the Authority and the South Bend Redevelopment Commission (the "Commission") to be dated as of July 1, 1992, and plans, specifications and cost estimates for the Project, and directing the Secretary of the Authority to file a copy of said Lease with the Commission; and WHEREAS, the Commission at a meeting on June 26, 1992, adopted Resolution No. 1070 approving said Lease and plans, • specifications and cost estimates for the Project, .scheduling a public hearing on said Lease to be held on July 10, 1992, and • 1 1 authorizing the publication of a notice of public hearing on said Lease, pursuant to IC 5-3-1; and WHEREAS, the Lease provides that the Authority shall lease the real property upon which the Project will be built to the Commission and that the Authority shall additionally lease to the Commission the improvements to be constructed in accord with the drawings, plans, specifications and estimates prepared for the Authority (the "Plans"), as approved by the Commission pursuant to IC 36-7-14.5-16 and to be filed with the Board of Public Works; and WHEREAS, the Authority at a meeting on June 26, 1992, adopted a resolution approving the execution of an Agency Agreement with the Board of Public Works; and WHEREAS, the Authority and the Board of Public Works • desire to enter into this Agency Agreement to permit the construction of the Project pursuant to the terms hereof; and WHEREAS, the Board of Public Works desires to act as the agent of the Authority for the purposes of constructing the Project in accord with the Plans; NOW, THEREFORE, in consideration of the mutual covenants and promises herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: • -2- i• • 1. The Authority hereby empowers and appoints the Board of Public Works to act as its agent for the limited purpose of con- tracting for the construction, purchase and installation of the Project in accordance with the Plans as approved by the Commission and the Authority and filed with the Board of Public Works, which Plans may be supplemented and amended from time to time as provided for herein. The Board of Public Works will select the type, quantity, suppliers, construction contractors and subcontractors, materialmen and installers of the improvements and appurtenances on behalf of the Authority. 2. This limited agency shall immediately terminate upon commencement of the Lease or upon breach by the Authority or the Board of Public Works of this Agency Agreement or any other agreement between the Authority and the Board of Public Works after written notice of termination is given by the Authority or the Board of Public Works at least seven (7) days in advance of the date of termination of agency. The authority and appointment herein contained is limited to a total construction cost for the Project, as established by the receipt and award of construction contracts by the Board of Public Works pursuant to the Agency Agreement. 3. The Board of Public Works hereby accepts the appointment of agency by the Authority as described in Paragraph 1 of this Agency Agreement, and acknowledges the terms and conditions of the Lease. 4. The Board of Public Works shall construct the -3- i• ~, Project pursuant to IC 36-1-12, and shall execute all contracts pursuant to said chapter on behalf of the Authority. 5. The Board of Public Works, in the bidding of the contracts pursuant to said chapter, shall adopt specifications pertaining to the work to be performed, the timetable for the performance of the work, require performance, payment, and maintenance bonds, and such other matters as may be required by statute and/or the prevailing conditions in the South Bend community for public construction, provided such conditions, specifications, and matters are in accordance with the Plans and all supplements and amendments thereto. The Board of Public Works may make such modifications and amendments to the Plans as required for construction of the Project consistent with the overall design set forth in the Plans, as approved by the Commission and the Authority, and may adopt such special conditions as may be required in its opinion to satisfactorily complete the construction of the Project, provided that such modifications, amendments or special conditions do not alter the character of the Project or reduce the value thereof. 6. The Authority hereby empowers the Board of Public Works to assume full responsibility for obtaining all necessary licenses, inspections, zoning approvals, building permits and any and all acts necessary to comply with any applicable statutory and regulatory requirements regarding the construction, zoning and leasing of the Project. -4- i• i• • 7. The sole responsibility for construction and purchase of items constituting the Project shall be that of the Board of Public Works, which has the sole responsibility of dealing with contractors and subcontractors in the construction of the Project. The Board of Public Works shall ensure that all components. of the Project are properly invoiced to and titled in the Authority prior to the commencement of the Lease. 8. The Board of Public Works shall have sole responsibility to inspect,. on behalf of the Authority, the construction of improvements and the appurtenances and their installation although the Authority reserves the right, at any time, to conduct such independent inspection as it deems appropriate. If the improvements or appurtenances are not properly constructed or installed in accord with specifications, do not operate or hold up as represented or warranted by any supplier or contractor, or are unsatisfactory for any reason, the Board of Public Works, during the term of this Agency Agreement, shall make any claim on account thereof solely against said supplier or contractor. 9. The Authority hereby assigns to the Board of Public Works, during the term of this Agency Agreement, all its rights and benefits pursuant to any warranties, duties, or obligations of any manufacturer, wholesaler, retailer, installer, contractor, or subcontractor who provides any labor or materials for or in the Project. -5- . 10. The Board of Public Works, on behalf of the Authority, shall be responsible for processing all contractor claims for payment, consistent with the following procedure. The Board of Public Works shall: (a) obtain a completed Application and Certificate for a Payment (AIA G702) executed by the project architect or engineer; and (b) certify, in a Certificate for Payment signed by its authorized officers, that the work represented by the re- quest for payment has been satisfactorily completed and there are no facts or conditions existing that would re- quire the delay in payment to the contractor; and (c) submit, on behalf of the Authority, the completed Application and Certificate for a Payment and the Certi- ficate for Payment of the Board of Public Works to the Trustee named in the Trust Agreement between such Trustee and the South Bend Redevelopment Authority pursuant to the terms of the Trust Agreement. 11. The parties acknowledge that it is the • responsibility of the Authority to carry, or cause others to carry, builder's risk insurance and bodily injury and property damage insurance and the Board of Public Works shall have no responsibility to obtain such insurance coverage. 12. The Board of Public Works shall accept the completed Project on behalf of the Authority, which acceptance shall be evidenced by: (a) the execution of a Certificate of Completion by the project architect or engineer and, if applicable, a Certificate of Occupancy issued by the Building Commissioner of the City of South Bend; and (b) the execution of a Certificate of Acceptance by the Board of Public Works, accepting the Project as completed on behalf of the Authority. -6- 13. The terms and conditions of the Agency Agreement shall inure to the benefit of and bind the respective parties hereto and their successors in interest and assigns, and no portion of this Agency Agreement may be assigned by any party without the prior written consent of all other parties. 14. The agency provisions herein contained apply only as stated and shall not be deemed to create any partnership, joint venture or other enterprise of any type or nature between the Authority and the Board of Public Works. 15. No amendment, modification or alteration of the terms of this Agency Agreement shall be binding unless duly executed by the parties hereto in writing, dated subsequent to the date hereof. • -7- . IN WITNESS WHEREOF, the undersigned hereto execute this Agency Agreement to be effective as of the day and year first written above. THE SOUTH BEND REDEVELOPMENT AUTHORITY By: Joseph Wroblewski, President THE BOARD OF PUBLIC WORKS Bv: John E. Leszczynski Bv- James R. Caldwell Bv• ATTEST: • Donald Fewell, Secretary Dated: Mary H. Mueller ATTEST: Sandra M. Parmerlee, Clerk Dated: This instrument was prepared by Randolph R. Rompola, BAKER & DANIELS, 205 West Jefferson Boulevard, South Bend, Indiana 46601. \rrrompol\sthbend\8olfcour.se\agency.agr;tmg;6/24/92 .8.