HomeMy WebLinkAbout1 RDC Packet 9.28.23South Bend Redevelopment Commission
227 West Jefferson Boulevard, Room 1308, South Bend, Indiana
Agenda
Regular Meeting, September 28, 2023 – 9:30 a.m.
https://tinyurl.com/RedevelopmentCommission or BPW Conference Room 13th Floor
1.Roll Call
2.Approval of Minutes
A.Minutes of the Regular Meeting of Thursday, September 14,
2023
3.Approval of Claims
A.Claims Allowance 9.19.23
4.Old Business
A.None
5.New Business
A.River West Development Area
1.Purchase Agreement (Lafayette Building)
2.Development Agreement (Lafayette Building)
3.Temporary Use Agreement (Lafayette Building)
4.Resolution No. 3580 (Adopting Riverfront District Criteria)
B.River East Development Area
1.Budget Request (East Race Walkway)
2.Budget Request (LaSalle Streetscape)
6.Progress Reports
A.Tax Abatement
B.Common Council
C.Other
7.Next Commission Meeting:
Thursday, October 12, 2023, 9:30 am
South Be n d
Redevelopment Commission
227 West Jefferson Boulevard, Room 1308, South Bend, IN
SOUTH BEND REDEVELOPMENT COMMISSION
SCHEDULED REGULAR MEETING
September 14, 2023 – 9:30 am
https://tinyurl.com/RedevelopmentCommission or BPW 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, Vice-President – V
Vivian Sallie, Secretary – IP
Eli Wax, Commissioner - IP
David Relos, Commissioner – IP
Leslie Wesley, Commissioner - V
IP = In Person V = Virtual
Members Absent:
Legal Counsel: Sandra Kennedy, Esq.
Danielle Campbell, Asst. City Attorney
Redevelopment
Staff:
Mary Brazinsky Sears, Board Secretary
Joseph Molnar, RDC Staff
Others Present: Caleb Bauer
Erik Glavich
Antonius Northern
Kara Boyles
Charlotte Brach
Zach Hurst
Leslie Biek
Jordan
Mark Peterson
Tyler Woods
Desmond Upchurch
Matt Barrett
M Mazurek
Annie Kate
Scott Kreger
John H.
Allison G.
DCI
DCI
DCI
Engineering
Engineering
Engineering
Engineering
SB Tribune
WNDU
WNDU
327 S Frances St
110 S Niles Ave
2424 California Road
ABC57
Property Brothers, LLC
Online
Online
ITEM 2A
South Bend Redevelopment Commission Regular Meeting – September 14, 2023
2.Approval of Minutes
A.Approval of Minutes of the Executive Session of Thursday, August 24, 2023
Upon a motion by Commissioner Relos, seconded by Commissioner Wax, the
motion carried with Vivian Sallie abstaining as she was not present, the
Commission approved the minutes of the regular meeting of Thursday, August 24,
2023.
B.Approval of Minutes of the Regular Meeting of Thursday, August 24, 2023
Upon a motion by Commissioner Wax, seconded by Commissioner Relos, the
motion carried with Vivian Sallie abstaining as she was not present, the
Commission approved the minutes of the regular meeting of Thursday, August 24,
2023.
3.Approval of Claims
A.Claims Allowance 8.24.23
B.Claims Allowance 8.29.23
C.Claims Allowance 9.12.23
Upon a motion by Commissioner Relos, seconded by Secretary Sallie, the motion
carried unanimously, the Commission approved the claims allowances of August
24, August 29, and September 12, 2023.
4.Old Business
5.New Business
A.River West Development Area
1.Budget Request (Rebuilding Our Streets RWDA)
Kara Boyles Presented a Budget Request (Rebuilding Our Streets RWDA).
The request in the amount of $255k is to provide funding to support the city’s
Rebuilding Our Streets Plan which is in its third year of implementation.
Requested funds will be used for the paving and reconstruction of the intersection
at Ameritech & Cleveland Road.
Ms. Boyles explained that this is a complicated maintenance for the intersection
as this intersection is heavily traveled by semis and other traffic as an
entrance/exit to the bypass. In order to do this project, we will have to do it in five
different cases in order to construct it and make sure that everyone has
accessibility. All of the legs of the project are complete except the intersection.
The price of concrete is now higher than the 2023 prices and the complicated
maintenance of the traffic. At each cycle of the work, the concrete has to be
cured with no traffic for seven days. This project has a completion date in Spring
2024. Commission approval is requested.
South Bend Redevelopment Commission Regular Meeting – September 14, 2023
Upon a motion by Commissioner Relos, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved Budget Request
(Rebuilding Our Streets RWDA) submitted on Thursday, September 14, 2023.
2.Development Agreement (Property Brothers, LLC)
Erik Glavich Presented Development Agreement (Property Brothers, LLC). Mr.
Glavich presented the commission with a Development Agreement with Property
Brothers LLC, a small-scale developer committed to providing high-quality
affordable housing in South Bend. The properties are on the Near Northwest side.
Jordan Richardson, the founder, and CEO is joined virtually.
The development agreement before you involves three separate properties. The
developer is undertaking a project to rehabilitate two existing vacant residential
buildings and construct a new residential building, bringing online at least seven
new residential units near the Lincoln Way West corridor. Mr. Richardson has
purchased the fourplex and has signed a purchase agreement with Anne Mannix.
Mr. Richardson is using the city’s pre-approved plans and we are very excited
about that, which will help reduce his costs. The developer hopes to have eight
high quality affordable units online by December 31, 2025. The agreement states
a minimum of seven units as the Scott Street property may be a challenge as it is
not wired for four units at this time.
This agreement specifies that the funding amount provided by Redevelopment
Commission will not exceed $150,400 and the private investment by the developer
will be no less than $709,000. The Developer agrees to complete the project by
the end of 2025. The funding amount will be used for local public improvements
such as exterior improvements to existing real property and site improvements.
There are numerous public improvements related to the investment such as
sidewalks, curb work and alleyways. Mr. Richardson has a tremendous reputation
for high quality work.
Mr. Richardson, CEO states they are excited to take on a project of this weight in
that area. This will help support the need for housing. Our desire was to do a new
building. We requested a couple of projects at once to help area housing. We
have already purchased one of the properties and they are in extremely rough
shape. One has a tree growing in it. The properties have been broken into and
used as a squatting area for the homeless.
Secretary Sallie thanked Mr. Richardson for being interested in the properties and
asked what his definition of affordable housing would be. Everyone’s definition of
affordable housing is not the same.
Mr. Richardson stated the rated are what the Housing Authority and HUD rates
are. The scale changes as to what is fair and affordable.
South Bend Redevelopment Commission Regular Meeting – September 14, 2023
Mr. Glavich states one of the city’s priorities is affordable, quality housing.
President Jones asked who pays for the sidewalks.
Mr. Glavich stated that the homeowners do. The curbs are the cities.
Commissioner Wax asked if the sidewalk is part of the local public improvements.
Mr. Glavich stated yes, along with landscaping, curbs, roofing, windows etc.
These are included in the development agreement.
Commissioner Wax asked if a developer uses the funds for roofing, windows and
runs out of money for the sidewalks; what happens. Is it a requirement that those
public improvements must be done or is that something that is theoretically left to
fall through the cracks.
Mr. Molnar stated when you file for a building permit for a new home, you are
required to replace your sidewalks. If the RDC did not cover the sidewalks it
would be the developer’s responsibility.
Mr. Richardson states their goal is to bring as many units as possible online.
Commissioner Relos asked if Mr. Richardson has done other projects.
Mr. Richardson stated yes, and they have focused on the Near Northwest area.
One project was completed near the Botany shop in 2020. They were able to do a
full rehab on the property. They have done a few in this Near Northwest
neighborhood.
Mr. Glavich stated that the Scott Street block also has the Advantix project of a
minimum of eight units and a maximum of twelve units in the next few years. This
would be near the new Charles Martin Center near Lincoln Way West.
Matt Barrett, resident, would recommend affordable housing be defined in the
development agreement going forward. He did not see when the project was to be
completed in the agreement with a clause that talks about a certificate of
completion. He recommends that there be certificates of occupancy issued for all
users before the project is completed.
Commissioner Wax read from the agreement stating that the developer agrees to
complete the project by December 31, 2025.
Mr. Molnar stated that when the city uses the word affordable in an agreement that
it is always tied back to the HUD metric. When there is not a specific income
requirement, we use the term market rate.
South Bend Redevelopment Commission Regular Meeting – September 14, 2023
Mr. Glavich stated that the certificate of completion clause is typically included in
purchase agreements not in the development agreement. Exhibit D in the project
does clarify Mr. Barrett’s question.
Ms. Campbell-Weiss stated that in this agreement the new build plus the number
of units required is in the project plan and needs to be completed by December 31,
2025; if not, that is what triggers reimbursement obligations.
Mr. Barrett asked what needed to happen by that date and he again suggested
that there be a certificate of occupancy to the properties.
Mr. Richardson stated the certificate of occupancy is something that the building
department works on with developers. It is a natural part of the rehab process.
That item is on his check list.
Mr. Bauer states that this is not a trust piece. The agreement is outlined in Exhibit
D for each of the units. Mr. Bauer read Exhibit D to the commission.
Commissioner Wax stated that is how he understood Exhibit D and we have made
positive improvements in our development agreements. It is something we could
require in the future.
Vice-President Warner stated that more clarity in the agreements going forward is
better. We have other agreements where that is stated. If we have issues, it will
help clean things up on other ends.
Mr. Barrett stated there are at least four categories of affordable housing. Any four
categories count for fair market value calculations by HUD.
Mr. Bauer stated that Mr. Richardson was referencing the HUD threshold to
determine eligibility from private property owners for participating in the Housing
Choice Voucher program. He clarified the HUD and the Housing Choice Voucher
program.
Upon a motion by Vice-President Warner, seconded by Commissioner Wax, the
motion carried unanimously, the Commission approved Development Agreement
(Property Brothers, LLC) submitted on Thursday, September 14, 2023.
3.Compliance Update (Bear Brew, LLC)
Caleb Bauer Presented a Compliance Update (Bear Brew, LLC). This is better
known as Bare Hands Brewery. The Commission was updated on where we are
at with the latest amendment to the real estate purchase agreement, which may
move them to decide on official action.
Disposition of the former Gates lot was in 2013. There were no bids at that time.
In 2016 the Redevelopment Commission and city staff negotiated a purchase
agreement for the property for $1 in exchange for private investment commitment
to open a brewery on that site. Since this agreement there have been seven
amendments to the original agreement.
South Bend Redevelopment Commission Regular Meeting – September 14, 2023
During that time the private investment commitment was reduced in an effort to
assist the business owner and to obtain compliance including extension of the
timeline several times over a seven-year period.
Staff came before the Redevelopment Commission approximately one and a half
years ago to set a couple of new deadlines with a slightly different format with two
separate deadlines. The rough in inspection deadline was for February 1, 2023,
and a project completion deadline of September 1, 2023. Bare Hands Brewery
did complete the rough in inspections although there were some pieces that they
needed to resolve from that inspection. That occurred prior to the February 1,
2023, deadline. Since that time, little to no work has been done at the site and it
is not near completion. The owner reached out to staff on August 29, 2023, a
couple days prior to the final completion date explaining that they do not have
financing in place or the financial means to complete the project and requested an
extension of at least another year.
The third amendment to the purchase agreement in which the Redevelopment
Commission initiated an attempt to retake control of the property did clarify in the
reversion clause that there would be re-payment to Bare Hands the cost of
physical improvements to the building. Bare Hands would need to share detailed
invoicing with review and approval by the Commission staff. We did share that
with the Bare Hands ownership team, and we received information from them this
morning. Not all of the information received fits within the reversion clause, so we
are not able to share that today as we have not had time to review. Chris Gerard,
owner of Bare Hands was not able to join today’s meeting, but he was invited to.
Taxes owned on the property currently are $8,073; of that $6,893 are
delinquencies over the last couple of years. There was a partial payment made in
March 2023. The staff has always wanted this project to move forward and have
worked with Bare Hands to assist them. Seven years have passed since the
beginning of the project, and we feel that was enough time to complete the
project.
Bare Hands has a great retail facility in Granger. This is not about the business
itself but about the commitments that have not been met in the agreements or
many amendments. There is no clear pathway to the commitments to be met in
the future.
Staff recommends consideration of official action to issue a letter of default to
Bare Hands/Bear Brew.
Commissioner Wax states that every project through Redevelopment; especially
those for a dollar, are real cost opportunities for developers. Does staff feel that
there would be other opportunities at this property?
South Bend Redevelopment Commission Regular Meeting – September 14, 2023
Mr. Bauer states as a courtesy to Bare Hands, we felt it would be inappropriate to
discuss with others prior to the deadline. We want to make sure we gave the
property owner a full chance to the terms of their commitments. He does believe
in the last seven years that the block and its marketability has changed
significantly. With new investments coming in full force through various
expansions he does think it is a great opportunity. Is there a better use for the
entire block instead of just for the Gates building. We have received inquiries, but
we have not had discussions out of respect to this agreement.
Commissioner Wax asked what would the commissions obligations be to future
development? Would we be starting back at a dollar or would we be building that
in to get it back from a future developer. If a letter of compliance is issued would
the commission have to eat the cost, or do we expect this to be on the next
developer?
Mr. Bauer stated he cannot state what will happen. He believes that the
expenditures are minimal and that need to be reimbursed but staff needs to
review the invoices. He believes that we can incorporate the expenditure into the
future purchase price of the property, so the Commission is reimbursed.
Secretary Sallie stated that she is very disappointed that here is not a
representative here today to speak on behalf of Bare Hands as this is a very
serious matter to default. She also believes that it is disrespectful to the
Commission to present their side.
Vice-President Warner stated that the initial notification of disposition was in 2013.
He is unsure if we will need to go through the process again. He states that on
the fifth amendment of February 2022 the Commission was told that financing
was in place and Bare Hands was moving forward. In July 2022 there were
construction delays and again we are hearing financing issues. We want
development there. He believes they have had ample opportunity and he
believes it is time for a different project there.
Desmond Upchurch, resident asked if Bare Hands would be able to receive the
new vacant building loan from the city for up to $500k.
Mr. Bauer states that is something that BDC could look at, but they would have to
have a financial institution that provides 50% of that loan. Per serval
conversations with Bare Hands, he does not believe there is a financial institution
in place with the developer. There is an underwriting process for this loan and
with the history of the business I do not believe they would qualify but they could
apply.
Mr. Barrett, resident does not understand why benefits are extended to
enterprises with delinquent taxes.
South Bend Redevelopment Commission Regular Meeting – September 14, 2023
Upon a motion by Vice-President Warner, seconded by Commissioner Wax, the
Commission unanimously approved the City of South Bend Legal Department to
proceed with a letter of default to Bare Hands Brewery/Bear Brew as of
September 14, 2023.
6.Progress Reports
A.Tax Abatement
1.Erik Glavich stated that at the Common Council meeting the Council approved the
following:
•Common Council approved a five-year personal property tax abatement for
Imagineering Enterprises. The petitioner plans to purchase and install a new
electroless nickel line costing $2,631,500. The investment will increase
revenues by 25 to 30 percent and enable Imagineering to hire 10 new full-time
employees.
B.Common Council
C.Other
1.Joe Molnar updated the Commission on the St. Joseph County tax sale. The staff
has interest in two properties that were on the acquisition list. One property tax
were paid prior to the sale. The other property went considerably higher than our
maximum bid.
2.Mr. Molnar stated the Board of Public Works approved the transfer of the property
at Washington and Taylor. An RFP was drafted, and we are reviewing it and will
send it to South Bend Heritage soon.
3.Caleb Bauer provided details on the new Vacant Building Credit Enhancement
Fund. This will be administered by the nonprofit Business Development
Corporation. They are an SBA lender who will take on the underwriting and
administrative duties of the program. The program is a revolving loan program to
provide secondary loan financing. This paired with financing from a traditional
lender for the redevelopment of vacant buildings with preference on commercial
corridors.
7.Next Commission Meeting:
Thursday, September 28, 2023
8.Adjournment
Thursday, September 14, 2023, 10:30 a.m.
Vivian Sallie, Secretary Marcia Jones, President
City of South Bend
Department of Administration & Finance
Claims Allowance Request
To:South Bend Redevelopment Commission
From:Kyle Willis, City Controller
Date:Tuesday, September 19, 2023
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-0063379 $238,839.75
GBLN-0000000 $0.00
Total:$238,839.75
_______________________________
Kyle Willis
The attached claims described above were allowed in the following
total amount at a public meeting on the date stated below:
South Bend Redevelopment Commission
By:_______________________________
Name:
Date:
ITEM 3A
Attest:_______________________________
Name:
Department of Administration & Finance
Pursuant to Indiana Code 36-4-8-7, I have audited and certified the attached claims and
238,839.75$
Redevelopment Commission Agenda Item
DATE: 9/25/23
FROM: Joseph Molnar
SUBJECT: Real Estate Purchase Agreement Lafayette Building
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Purchase Agreement for the Lafayette Building and 117/119 Lafayette for the
purpose of restoration and redevelopment.
Specifics: The City of South Bend acquired the Lafayette Building from St. Joseph County in 2018
with the purpose of preserving the existing structure and returning it to productive use. The
building at the time was in danger of becoming dilapidated beyond repair. City stabilization
efforts since acquiring the building have included a full roof replacement, roof drain
replacement, skylight replacement, and exterior masonry repair as well as other rehabilitation
efforts. These repairs have stabilized the building and prepared it for the next stage of
rehabilitation.
On September 22, 2022 the Redevelopment Commission (RDC) issued a Request for Proposal
(RFP) for the rehabilitation and adaptive reuse of the Lafayette Building with a deadline for
proposals of January 26, 2023. While numerous entities and individuals enquired and toured
the building during the RFP process, no official bid was submitted.
RDC Staff are now pleased to present a Real Estate Purchase Agreement (Agreement) with
Lafayette OpCo LLC (the “buyer”). The buyer intends to redevelop the building into a mixed-use
building. The Agreement also include the sale of 117/119 Lafayette Blvd. which is the parking
lot immediately south of the Lafayette Building.
_________________________Pres/V-Pres
ATTEST: __________________Secretary
Date: ____________________
APPROVED Not Approved
SOUTH BEND REDEVELOPMENT COMMISSION
ITEM 5A1
Page | 2
The submitted Agreement commits the buyer to the following:
-Sale price of $10,000
-Begin construction within 12 months of the Closing Date
-Complete construction within 60 months of the Closing Date
-Expend no less than $8 million on improvements to the site
-Redevelopment of the building must include ground floor retail spaces and a minimum
of thirty (30) apartments.
Furthermore, due to the historic architectural nature of the building, the buyer understands
that the property improvements shall not include any reduction in the size of the open atrium
space, which shall remain continuous from the ground floor to the fifth floor, nor shall the
property improvements include any reduction to the size of the skylight. Restrictive covenants
will be included on the deed of the property ensuring these safeguards.
The Lafayette Building is also a local Historic Landmark and any exterior alterations to the
building will require approval of the Historic Preservation Commission of St. Joseph County and
South Bend.
If the buyer fails to comply with the requirements of the Agreement, the RDC shall h ave the
right to re-enter and retake possession of the building.
The Lafayette Building is one of the most unique buildings in downtown South Bend and
rehabilitation of the building and returning it to active use will not only preserve a historic
building but will also enhance the appearance and vitality of downtown.
Staff requests approval of this 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 $_____________
REAL ESTATE PURCHASE AGREEMENT
This Real Estate Purchase Agreement (this “Agreement”) is made on September 28, 2023
(the “Contract Date”), by and between the City of South Bend, Indiana, Department of
Redevelopment, acting by and through its governing body, the South Bend Redevelopment
Commission (“Seller”) and Lafayette OpCo LLC, an Indiana limited liability company (“Buyer”)
(each a “Party” and together the “Parties”).
RECITALS
A.Seller exists and operates pursuant to the Redevelopment of Cities and Towns Act
of 1953, as amended, being Ind. Code 36-7-14 (the “Act”).
B.In furtherance of its purposes under the Act, Seller owns certain real property
located in South Bend, Indiana (the “City”), and more particularly described in attached Exhibit
A (the “Property”), inclusive of the approximately 37,357 square foot building, surface parking
areas, and drive areas located thereon, and all fixtures, easements, appurtenances, hereditaments, rights,
powers, privileges, and other improvements thereon and/or appurtenant thereto.
C.Pursuant to the Act, Seller adopted its Resolution No. 3558 on September 22, 2022,
whereby Seller established an offering price of Three Hundred Ninety-Two Thousand One Hundred
Dollars ($392,100.00) for the Property.
D.Pursuant to the Act, on September 22, 2023 Seller authorized the publication, on
October 1, 2022, and October 8, 2022, respectively, of a notice of its intent to sell the Property and
its desire to receive bids for said Property on or before January 26, 2023, at 9:30A.M.
E.As of January 26, 2023, at 9:30A.M., Seller received no bids for the Property, and,
therefore, having satisfied the conditions stated in Section 22 of the Act, Seller now desires to sell
the Property to Buyer on the terms stated in this Agreement.
THEREFORE, in consideration of the mutual covenants and promises in this Agreement
and other good and valuable consideration, the receipt of which is hereby acknowledged, Buyer
and Seller agree as follows:
1.RECITALS
The recitals above are hereby incorporated into this Agreement by reference.
2.OFFER AND ACCEPTANCE
A copy of this Agreement, signed by Buyer, constitutes Buyer’s offer to purchase the Property on the
terms stated in this Agreement and shall be delivered to Seller, in care of the following representative
(“Seller’s Representative”):
TO SELLER: Caleb Bauer
Executive Director
Department of Community Investment
City of South Bend
1400 S. County-City Building
227 W. Jefferson Blvd.
South Bend, Indiana 46601
WITH COPY TO: South Bend Legal Department
Attn: Corporation Counsel
City of South Bend
1200 S. County-City Building
227 W. Jefferson Blvd.
South Bend, Indiana 46601
This offer shall expire thirty (30) days after delivery unless accepted by Seller. To accept Buyer’s
offer, Seller shall return a copy of this Agreement, counter-signed by Seller in accordance with
applicable laws, to the following (“Buyer’s Representative”):
TO BUYER: Lafayette OpCo LLC
333 Greene Ave, 12A
Brooklyn, NY 11238
Attention: Rachel Brandenberger
WITH COPY TO: Barnes & Thornburg LLP
201 South Main Street, Suite 400
South Bend, Indiana 46601
Attention: Timothy A. Emerick
3.PURCHASE PRICE AND EARNEST MONEY DEPOSIT
A.Purchase Price. The purchase price for the Property shall be Ten Thousand Dollars
($10,000.00) (the “Purchase Price”), payable by Buyer to Seller by ACH, wire transfer or other
immediately available funds at the closing described in Section 11 below (the “Closing,” the date
of which is the “Closing Date”).
B.Earnest Money Deposit. Within fifteen (15) days after the Contract Date, Buyer
will deliver to the Title Company (as defined below) the sum of One Thousand Dollars
($1,000.00), which Seller will hold as an earnest money deposit (the “Earnest Money Deposit”).
The Earnest Money Deposit shall be credited against the Purchase Price at the Closing or, if no
Closing occurs, refunded or forfeited as provided below.
C.Termination During Due Diligence Period. If Buyer exercises its right to terminate
this Agreement by written notice to Seller in accordance with Section 4 below, Seller shall cause the
Earnest Money Deposit to be promptly refunded to Buyer. If Buyer fails to exercise its right to
terminate this Agreement by written notice to Seller within the Due Diligence Period, then the
Earnest Money Deposit shall become non-refundable.
D.Liquidated Damages. If Seller complies with its obligations hereunder and Buyer,
not having terminated this Agreement during the Due Diligence Period in accordance with Section
4 below, fails to purchase the Property on or before the Closing Date, the Earnest Money Deposit
shall be forfeited by Buyer and retained by Seller as liquidated damages in lieu of any other
damages.
4.BUYER’S DUE DILIGENCE
A.Investigation. Buyer and Seller have made and entered into this Agreement based
on their mutual understanding that Buyer intends to develop the Property into a mixed-use building
including residential and commercial spaces (the “Buyer’s Use”). Seller acknowledges that
Buyer’s determination of whether Buyer’s Use is feasible requires investigation into various
matters at the Buyer’s sole discretion. Therefore, Buyer’s obligation to complete the purchase of
the Property is conditioned upon the satisfactory completion, in Buyer’s discretion, of Buyer’s due
diligence, including, without limitation, Buyer’s examination, at Buyer’s sole expense, of zoning
and land use matters, environmental matters, real property title matters, and similar matters as
determined by Buyer.
B.Due Diligence Period. Unless extended by the mutual agreement of the Parties,
Buyer shall have a period of ninety (90) days commencing on the Contract Date to complete its
examination of the Property (the “Due Diligence Period”).
C.Authorizations During Due Diligence Period. During the Due Diligence Period,
Seller authorizes Buyer, upon Buyer providing Seller with evidence that Buyer has general liability
insurance reasonably acceptable to Seller, in the amount of at least One Million Dollars
($1,000,000), naming Seller as an additional insured and covering the activities, acts, and
omissions of Buyer and its representatives at the Property, to
(i)enter upon the Property or to cause agents to enter upon the Property for
purposes of conducting buyer diligence; provided, that (i) Buyer will not take any action
upon the Property which reduces the value thereof or conduct any invasive testing at the
Property without Seller’s express prior written consent, which will not be unreasonably
withheld or delayed; and (ii) if the transaction contemplated by this Agreement is not
consummated, Buyer shall promptly restore the Property to its condition prior to entry.
Buyer agrees to defend, indemnify and hold Seller harmless, before and after the Closing
Date whether or not a closing occurs and regardless of any cancellations or termination of
this Agreement, from any liability to any third party, loss or expense incurred by Seller,
including without limitation, reasonable attorney fees and costs arising from acts or
omissions of Buyer or Buyer’s agents or representatives, provided that Buyer shall not be
required to indemnify Seller for any condition (including, but not limited to, any
environmental condition) existing on the Property prior to Buyer’s or Buyer’s agents access
to the Property; and
(ii)file any application with any federal, state, county, municipal, regional or
other agency relating to the Property for the purpose of obtaining any approval necessary
for Buyer’s anticipated use, ownership or operation of the Property. If Seller’s written
consent to or signature upon any such application is required by any such agency for
consideration or acceptance of any such application, Buyer may request from Seller such
consent or signature, which Seller shall not unreasonably withhold. Notwithstanding the
foregoing, any zoning commitments or other commitments that would further restrict the
future use or development of the Property, beyond the restrictions in place as a result of the
current zoning of the Property, shall be subject to Seller’s prior review and written approval.
D.Environmental Site Assessment. Buyer may, at Buyer’s sole expense, obtain a
Phase I and any non-invasive Phase II environmental site assessment of the Property pursuant to and
limited by the authorizations stated in this Section 4.
E.Termination of Agreement. If at any time within the Due Diligence Period Buyer
determines, in its sole discretion, not to proceed with the purchase of the Property, Buyer may
terminate this Agreement by written notice to Seller’s Representative, and Buyer shall be entitled
to a full refund of the Earnest Money Deposit.
5.SELLER’S DOCUMENTS
Within five (5) days of the Contract Date, Seller will provide Buyer a copy of all environmental
inspection, engineering, title, and survey reports and documents in Seller’s possession relating to
the Property. In the event the Closing does not occur, Buyer will immediately return all such
reports and documents to Seller’s Representative.
6.HISTORIC LANDMARK STATUS
Buyer acknowledges that the Property was designated an historic landmark per Ordinance No. 9082-
00 passed by the South Bend Common Council on January 24, 2000. As such, the Property is subject
to the Historic Preservation Ordinance as codified in the Municipal Code of the City of South Bend,
Indiana and the related standards and guidelines for stand-alone historic landmarks.
7.PRESERVATION OF TITLE
Seller acknowledges that Buyer intends to obtain, at Buyer’s sole expense, and to rely upon a
commitment for title insurance on the Property (the “Title Commitment”) and an ALTA survey of
the Property (the “Survey”) identifying all interests, liens, restrictions, easements, covenants,
reservations, or other matters affecting Seller’s title (such matters are referred to as
“Encumbrances”) as of the Contract Date. The Property shall be conveyed to Buyer free of any
Encumbrances other than Permitted Encumbrances (as defined in Section 9 below).
8.TITLE COMMITMENT AND POLICY REQUIREMENTS
Buyer shall obtain the Title Commitment for an owner’s policy of title insurance issued by a title
company selected by Buyer and reasonably acceptable to Seller (the “Title Company”) within
twenty (20) days after the Contract Date. The Title Commitment shall (i) agree to insure good,
marketable, and indefeasible fee simple title to the Property (including public road access) in the
name of the Buyer for the full amount of the Purchase Price upon delivery and recordation of a
special warranty deed (the “Deed”) in the form attached as Exhibit B, from the Seller to the Buyer,
and (ii) provide for issuance of a final ALTA owner’s title insurance policy removing all standard
exceptions thereto, with any endorsements requested by Buyer, subject to the Permitted
Encumbrances. Regardless of whether this transaction closes, Buyer shall be responsible for all of
the Title Company’s title search charges and all costs of the Title Commitment and owner’s policy.
9.REVIEW OF TITLE COMMITMENT AND SURVEY
Within twenty (20) days after Buyer’s receipt of the Title Commitment and Survey (the “Title and
Survey Review Period”), Buyer shall give Seller written notice of any objections to the Title
Commitment and Survey. Any exceptions identified in the Title Commitment or Survey to which
written notice of objection is not given within such period shall be a “Permitted Encumbrance.” If
the Seller is unable or unwilling to correct the Buyer’s title and survey objections within the Title
and Survey Review Period, Buyer may terminate this Agreement by written notice to Seller prior
to expiration of the Title and Survey Review Period, in which case the Earnest Money Deposit
shall be refunded to Buyer. If Buyer fails to so terminate this Agreement, then such objections
constitute “Permitted Encumbrances” as of the expiration of the Due Diligence Period, and Buyer
shall acquire the Property without any effect being given to such title and survey objections.
10.NOTICES
Any notice or other communication required or permitted under this Agreement will be in writing
and will be deemed to have been given, (i) when received, if personally delivered, (ii) three (3)
working days after being deposited, if placed in the United States mail for delivery by registered or
certified mail, return receipt requested, postage prepaid, (iii) one (1) working day after being
provided to a reputable, national overnight delivery service, if sent by overnight courier, charges
prepaid, or (iv) on the day sent, if emailed prior to 4:00 p.m., recipient’s local time on a working
day; or if sent later or not on a working day, the next working day, in each case addressed at the
addresses set forth in Section 2 above. Addresses may be changed by written notice given pursuant
to this Section 10, however any such notice will not be effective, if mailed, until three (3) working
days after depositing in the United States mail or when actually received, whichever occurs first .
11.CLOSING
A.Timing of Closing. Unless this Agreement is earlier terminated, the Closing shall
be held at the office of the Title Company, and the Closing Date shall be a mutually agreeable date
not later than sixty (60) days after the end of the Due Diligence Period. The Buyer may extend
the Closing for an additional thirty (30) days by providing notice of such extension to Seller.
B.Obligations at Closing.
(i)Of Seller. At Closing, Seller will deliver: (i) the fully executed Deed,
conveying and warranting to Buyer good, indefeasible, and marketable fee simple title to
the Property, subject to no liens or encumbrances other than real estate taxes which are a
lien on the Property but are not yet due and payable and the Permitted Exceptions; (ii) an
executed Vendor’s Affidavit in form and substance satisfactory to the Title Company and
sufficient to cause the removal of the general exceptions from the Title Policy; (iii) an
executed Non-Foreign Affidavit in form required by the Internal Revenue Code; (iv) an
executed Indiana Sales Disclosure Form; (v) an executed Bill of Sale conveying to Buyer
the Personal Property; and (vi) any and all other documents contemplated by this Agreement
or appropriate to consummate the sale of the Property or reasonably requested by Buyer or
the Title Company.
(ii)Of Buyer. At Closing, Buyer will deliver: (i) the Purchase Price less any
credits, reductions, and prorations and less the Earnest Money Deposit; (ii) an executed
Indiana Sales Disclosure Form; and (iii) any and all other documents contemplated by this
Agreement or appropriate to consummate the purchase of the Property or reasonably
requested by Seller or the Title Company.
C.Closing Costs. Buyer shall pay all of the Title Company’s closing and/or document
preparation fees and all recordation costs associated with the transaction contemplated in this
Agreement.
D.License Agreement. At Closing, the Parties shall execute a license agreement for
temporary use (the “License Agreement”) in the form attached as Exhibit C for the portion of the
Property commonly known as 117 119 LAFAYETTE (the “Parking Lot”), which will grant access
to the Seller to continue using the Parking Lot for purposes of employee parking until such time
as Buyer begins substantial work towards implementing the Property Improvements that will
require use of the Parking Lot.
12.REPRESENTATIONS OF SELLER.
Seller covenants, represents, and warrants to Buyer that, both now and as of the Closing
Date:
A.Seller has good, indefeasible, and marketable fee simple title to the Property, subject
to no liens or encumbrances; Seller has the right to convey the Property pursuant to the terms of
this Agreement; and no person (other than Buyer pursuant to this Agreement) has a right to acquire
any interest in the Property;
B.This Agreement has been duly executed and delivered by Seller, and constitutes the
legal, valid, and binding obligation of Seller, enforceable in accordance with its terms, and this
Agreement does not violate any other agreement, oral or written, which may exist with respect to
the Property;
C.Seller has the full right, power, and authority to enter into this Agreement and to
consummate the transaction contemplated herein and the individual executing this Agreement on
behalf of Seller has the power and authority to bind Seller to the terms and conditions of this
Agreement;
D.So far as is known by Seller after reasonable investigation, there is no action, suit,
litigation, or proceeding of any nature pending or threatened against or affecting the Property, or
any portion thereof, by any third party, in any court, or before or by any federal, state, county, or
municipal department, commission, board, bureau, agency, or other governmental instrumentality;
E.Seller is not a “foreign person” within the meaning of Section 1445 of the Internal
Revenue Code of 1986, as amended, or any regulations promulgated thereunder;
F.So far as is known by Seller after reasonable investigation, Seller has not received
written notice from any governmental authorities or any political or quasi-political, subdivision,
agency, authority, department, court, commission, board, bureau, or instrumentality of any of the
foregoing, stating that the Property is or may be in violation of any applicable federal, state, or
municipal law, ordinance, or regulation regarding Hazardous Substances (as hereinafter defined)
or the alleged violation of any Environmental Law (as hereinafter defined). As used herein, the
term “Hazardous Substances” will mean: (i) those substances included within the definitions of
any one or more of the terms “hazardous materials,” “hazardous wastes,” “hazardous substances,”
“industrial wastes,” and “toxic pollutants,” as such terms are defined under the Environmental
Laws (as hereinafter defined), or any of them; (ii) petroleum and petroleum products, including,
without limitation, crude oil and any fractions thereof; (iii) natural gas, synthetic gas and any
mixtures thereof; (iv) asbestos and or any material which contains any hydrated mineral silicate,
including, without limitation, chrysotile, amosite, crocidolite, tremolite, anthophylite and/or
actinolite, whether friable or non-friable; (v) polychlorinated biphenyl (“PCBs”) or PCB -
containing materials or fluids; (vi) radon; (vii) any other hazardous or radioactive substance,
material, pollutant, contaminant or waste; and (viii) any other substance with respect to which any
Environmental Law (as hereinafter defined) or governmental authority requires environmental
investigation, monitoring, or remediation. As used herein, the term “Environmental Laws” will
mean all federal, state, and local laws, statutes, ordinances, and regulations, now or hereafter in
effect, in each case as amended or supplemented from time to time, including, without limitation,
all applicable judicial or administrative orders, applicable consent decrees, and binding judgments
relating to the regulation and protection of human health, safety, the environment, and natural
resources (including, without limitation, ambient air, surface, water, groundwater, wetlands, land
surface or subsurface strata, wildlife, aquatic species, and vegetation), including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. § 9601 et seq.), the Hazardous Material Transportation Act, as amended
(49 U.S.C. §§ 5101 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act, as amended
(7 U.S.C. § 136 et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. §
6901 et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. § 2601 et seq.), the Clean
Air Act, as amended (42 U.S.C. § 7401 et seq.), the Federal Water Pollution Control Act, as
amended (33 U.S.C. § 1251 et seq), the Safe Drinking Water Act, as amended (42 U.S.C. § 300f
et seq.), any state or local counterpart or equivalent of any of the foregoing, and any federal, state,
or local transfer of ownership notification or approval statutes.
The representations contained in this Section 12 shall survive Closing.
13.BUYER’S POST-CLOSING DEVELOPMENT OBLIGATIONS
A.Property Improvements; Proof of Investment. On or before the date that is Forty-
Eight (48) months after the Closing Date (the “Projected Completion Date”), as such date may
be extended pursuant to Section 13D, the Buyer will expend an amount not less than Eight Million
Dollars ($8,000,000.00) on improvements to the site, as well as the cost of equipment and design,
needed to redevelop the Property for the uses set forth herein including ground floor retail spaces
and a minimum of thirty (30) apartments (“Property Improvements”). Buyer understands and
agrees that the Property Improvements shall not include any reduction in the size of the open
atrium space, which shall remain continuous from the ground floor to the fifth floor, nor shall the
Property Improvements include any reduction to the size of the skylight. Buyer further
understands that restrictive covenants shall be included in the Deed regarding these limitations.
Promptly upon completing the Property Improvements, Buyer will submit to Seller satisfactory
records, as determined in Seller’s sole discretion, proving the above required expenditures and
will permit Seller (or its designee) to inspect the Property to ensure that Buyer’s Property
Improvements were completed satisfactorily.
B.Post-Closing Buyer Commitments. The Buyer shall:
(i)Commence construction of the project within 12 months of the Closing
Date, for the sake of clarity, demolition of a portion of the Property shall be deemed to
satisfy these this requirement;
(ii)Complete construction of the project and Property Improvements by
the Projected Completion Date (as such date may be extended pursuant to Section
13D);
(iii)In its development of the Property, Buyer shall comply with all applicable
federal, state, and local laws, including, but not limited to, the applicable requirements of
the City of South Bend Zoning Ordinance, including variances as necessary.
(iv)Provide the design, plans, and specifications for Property Improvements
contemplated for the exterior portions of the Property, including the exterior of the building,
surface parking areas, and drive areas, consistent with City standards for the review and
comment by the City's Planning Director or his designee, who, in his sole discretion, may
request revisions or amendments to be made to the same. Acceptance of the design and plans
by the Planning Director or his designee prior to construction shall be a prerequisite for the
issuance of a Certificate of Completion.
C.Certificate of Completion. Promptly after Buyer completes the Property
Improvements and satisfactorily proves the same in accordance with the entirety of this Section 13,
Seller will issue to Buyer a certificate acknowledging such completion and releasing Seller’s
reversionary interest in the Property (the “Certificate of Completion”). The Parties agree to record
the Certificate of Completion immediately upon issuance, and Buyer will pay the costs of
recordation.
D.Remedies Upon Default; Extension of Projected Completion Date. In the event
Buyer fails to comply with Section 13.A or Section 13.B above, then, in addition to pursuing any
other remedies available at law or in equity, Seller shall have the right to re-enter and take possession
of the Property and to terminate and re-vest in Seller the estate conveyed to Buyer at Closing and
all of Buyer’s rights and interests in the Property without offset or compensation for the value of
any improvements made by Buyer. Notwithstanding the foregoing, Buyer may extend the Projected
Completion Date by an additional twelve (12) months – to the date that is Sixty (60) months after
the Closing Date (the “Extended Projected Completion Date”). In order to extend the Projected
Completion Date to the Extended Projected Completion Date, Buyer shall (i) provide written notice
to Seller of the extension on or before the date that is Forty-Two (42) months after the Closing Date,
and (ii) complete at least seventy-five percent (75%) of the Property Improvements by the Projected
Completion Date.
The Parties agree that Seller’s conveyance of the Property to Buyer at Closing will be made on the
condition subsequent set forth in the foregoing sentence and the terms of this Section 13 will be
referenced in the deed.
14.SELLER'S POST-CLOSING OBLIGATIONS
On and after the Closing Date, the Seller commits to working with the Buyer to finalize plans,
designs, and specifications for Property Improvements to the satisfaction of the City departments,
consistent with City standards.
15.ACCEPTANCE OF PROPERTY AS-IS
Buyer agrees to purchase the Property “as -is, where-is” and without any representations or
warranties by Seller as to the condition of the Property or its fitness for any particular use or
purpose. Seller offers no such representation or warranty as to condition or fitness, and nothing in
this Agreement will be construed to constitute such a representation or warranty as to condition or
fitness.
16.OPERATION; RISK OF LOSS; DAMAGE AND CONDEMNATION
Between the Contract Date and the Closing, Seller will (i) operate the Property in all material
respects in the same manner in which Seller operated the Property prior to the Contract Date,
including, but not limited to, keeping the Property fully insured, (ii) maintain the Property in its
present order and condition and deliver the Property at Closing, and (iii) not enter into any new
lease involving the Property. Seller will bear all risk of loss, destruction, and damage to all or any
portion of the Property and to persons or property upon the Property prior to the Closing. If any
time after the Effective Date: (i) the Property or any portion thereof will be damaged or destroyed,
(ii) the Property is condemned, in whole or in part, or (iii) any notice of condemnation will be
given, then Seller will promptly notify Buyer of such event and Buyer, at its sole discretion, may
terminate this Agreement by written notice to Seller or proceed with Closing. In the event that
Buyer elects to terminate this Agreement, Buyer and Seller will no longer have any obligation
hereunder to each other, except for those obligations that expressly survive the termination of this
Agreement. If Buyer elects to proceed with Closing, then Buyer may accept an assignment of the
proceeds of any condemnation award or insurance policy held by Seller or may apply the same as
a credit reducing the Purchase Price.
17.TAXES
Buyer, and Buyer’s successors and assigns, shall be liable for any and all real property taxes
assessed and levied against the Property with respect to the year in which the Closing takes place
and for all subsequent years. Seller shall have no liability for any real property taxes associated
with the Property, and nothing in this Agreement shall be construed to require the proration or
other apportionment of real property taxes resulting in Seller’s liability therefor.
18.REMEDIES
Upon any default in or breach of this Agreement by either Party, the defaulting Party will proceed
immediately to cure or remedy such default within thirty (30) days after receipt of written notice
of such default or breach from the non-defaulting Party, or, if the nature of the default or breach is
such that it cannot be cured within thirty (30) days, the defaulting Party will diligently pursue and
prosecute to completion an appropriate cure within a reasonable time. In the event of a default or
breach that remains uncured for longer than the period stated in the foregoing sentence, the non-
defaulting Party may terminate this Agreement, commence legal proceedings, including an action
for specific performance, or pursue any other remedy available at law or in equity. All the Parties’
respective rights and remedies concerning this Agreement and the Property are cumulative.
19.COMMISSIONS
The Parties mutually acknowledge and warrant to one another that neither Buyer nor Seller is
represented by any broker in connection with the transaction contemplated in this Agreement.
Buyer and Seller agree to indemnify and hold harmless one another from any claim for
commissions in connection with the transaction contemplated in this Agreement.
20.INDEMNITY
The Parties agree to indemnify, save harmless, and defend each other from and against any and all
liabilities, claims, penalties, forfeitures, suits, and the costs and expenses incident thereto (including
costs of defense and settlement), which either party may subsequently incur, become responsible
for, or pay out as a result of a breach of any of the representations contained in this Agreement by
the other party.
21.INTERPRETATION; APPLICABLE LAW
As both Parties have participated fully and equally in the negotiation and preparation of this
Agreement, this Agreement shall not be more strictly construed, nor shall any ambiguities in this
Agreement be presumptively resolved, against either Party. This Agreement shall be interpreted
and enforced according to the laws of the State of Indiana.
22.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.
23.WAIVER
Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power, or
privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power, or privilege preclude any other or further exercise of the
same or of any right, remedy, power, or privilege with respect to any occurrence be construed as
a waiver of any such right, remedy, power, or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party asserted to have granted
such waiver.
24.SEVERABILITY
If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in
full force and effect unless amended or modified by mutual consent of the Parties.
25.FURTHER ASSURANCES
The Parties agree that they will each undertake in good faith, as permitted by law, any action and
execute and deliver any document reasonably required to carry out the intents and purposes of this
Agreement.
26.ENTIRE AGREEMENT
This Agreement embodies the entire agreement between Seller and Buyer and supersedes all prior
discussions, understandings, or agreements, whether written or oral, between Seller and Buyer
concerning the transaction contemplated in this Agreement.
27.ASSIGNMENT
Buyer may assign its right under this Agreement to an entity (i) wholly owned by Buyer, or (ii)
under common control with the owners of Buyer as of the Contract Date.
28.BINDING EFFECT; COUNTERPARTS; SIGNATURES
All the terms and conditions of this Agreement will be effective and binding upon the Parties and
their successors and assigns at the time the Agreement is fully signed and delivered by Buyer and
Seller. This Agreement may be separately executed in counterparts by Buyer and Seller, and the
same, when taken together, will be regarded as one original Agreement. Electronically transmitted
signatures will be regarded as original signatures.
29.AUTHORITY TO EXECUTE; EXISTENCE
The undersigned persons executing and delivering this Agreement on behalf of the respective
Parties represent and certify that they are the duly authorized representatives of each and have been
fully empowered to execute and deliver this Agreement and that all necessary corporate action has
been taken and done. Further, the undersigned representative of Buyer represents and warrants that
Buyer is duly organized, validly existing, and in good standing under the laws of the State of Indiana.
30.TIME
Time is of the essence of this Agreement.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties hereby execute this Real Estate Purchase
Agreement to be effective as of the Contract Date stated above.
BUYER:
LAFAYETTE OPCO LLC
BY; LAFAYETTE PARENTCO LLC
ITS: MANAGER
By:
Rachel Brandenberger, manager
Dated:
SELLER:
SOUTH BEND REDEVELOPMENT COMMISSION
Marcia I. Jones, President
ATTEST:
Vivian Sallie, Secretary
September 22, 2023
EXHIBIT A
Description of Property
Parcel No. 71-08-12-151-003.000-026
Tax ID: 018-3009-0288
Legal Description: LOT 393 EX 60'W END ORIGINAL PLAT SOUTH BEND
Commonly Known As: 115 LAFAYETTE
Parcel No. 71-08-12-151-004.000-026
Tax ID: 018-3009-0289
Legal Description: 42 1/2' N SIDE LOT 394 ORIGINAL PLAT SOUTH BEND
Commonly Known As: 117 119 LAFAYETTE
EXHIBIT B
Form of Special Warranty Deed
AUDITOR’S RECORD
TRANSFER NO.
TAXING UNIT
DATE
KEY NO. 018-3009-0288
018-3009-0289
SPECIAL WARRANTY DEED
THIS INDENTURE WITNESSETH, that the City of South Bend, Department of Redevelopment,
by and through its governing body, the South Bend Redevelopment Commission, 1400 S. County-
City Building, 227 W. Jefferson Boulevard, South Bend, Indiana (the “Grantor”)
CONVEYS AND SPECIALLY WARRANTS to LAFAYETTE OPCO LLC (the “Grantee”), for and in
consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the following real estate located in St. Joseph
County, Indiana (the “Property”):
Parcel No. 71-08-12-151-003.000-026
Tax ID: 018-3009-0288
Legal Description: LOT 393 EX 60'W END ORIGINAL PLAT SOUTH BEND
Commonly Known As: 115 LAFAYETTE
Parcel No. 71-08-12-151-004.000-026
Tax ID: 018-3009-0289
Legal Description: 42 1/2' N SIDE LOT 394 ORIGINAL PLAT SOUTH BEND
Commonly Known As: 117 119 LAFAYETTE
Page 1 of 3
The Grantor warrants title to the Property only insofar as it might be affected by any act of
the Grantor during its ownership thereof and not otherwise.
The Grantor hereby conveys the Property to the Grantee free and clear of all leases or
licenses; subject to real property taxes and assessments; subject to all easements, covenants,
conditions, restrictions, and other matters of record; subject to rights of wat for roads and such
matters as would be disclosed by an accurate survey and inspection of the Property; subject to all
applicable building codes and zoning ordinances; and subject to all provisions and objectives
contained in the Commission’s 2019 River West Development Area Plan, as thereafter amended
from time to time.
The Grantor conveys the Property to the Grantee subject to the limitations that the Grantee,
and its successors and assigns, shall not:
a.discriminate against any person on the basis of race, creed, color, sex, age, or national
origin in the sale, lease, rental, use, occupancy, or enjoyment of the Property or any
improvements constructed on the Property;
b.reduce in size the open atrium space inside the building structure on the Property, which
shall remain continuous from the ground floor to the fifth floor; or
c.reduce the size of the skylight constructed on the building structure,
all of which shall be deemed covenants running with the land.
Pursuant to Section 13 of the Purchase Agreement, the Grantor conveys the Property to the
Grantee by this deed subject to certain conditions subsequent. In the event the Grantee fails to perform
the Property Improvements, or satisfactorily to prove such performance, in accordance with Section
13 of the Purchase Agreement, then the Grantor shall have the right to re-enter and take possession of
the Property and to terminate and revest in the Grantor the estate conveyed to the Grantee by this deed
and all of the Grantee’s rights and interests in the Property without offset or compensation for the
value of any improvements to the Property made by the Grantee. The recordation of a Certificate of
Completion in accordance with Section 13 of the Purchase Agreement will forever release and
discharge the Grantor’s reversionary interest stated in this paragraph.
Each of the undersigned persons executing this deed on behalf of the Grantor represents
and certifies that s/he is a duly authorized representative of the Grantor and has been fully
empowered, by proper action of the governing body of the Grantor, to execute and deliver this
deed, that the Grantor has full corporate capacity to convey the real estate described herein, and
that all necessary action for the making of such conveyance has been taken and done.
[SIGNATURE PAGE FOLLOWS]
Page 2 of 3
GRANTOR:
SOUTH BEND
REDEVELOPMENT COMMISSION
Marcia I. Jones, President
ATTEST:
Vivian Sallie, Secretary
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public, in and for said County and State, personally
appeared Marcia I. Jones and Vivian Sallie, known to me to be the President and Secretary,
respectively, of the South Bend Redevelopment Commission and acknowledged the execution of
the foregoing Special Warranty Deed being authorized so to do.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal on the day of , 2023.
My Commission Expires:
Notary Public
Residing in St. Joseph County, Indiana
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required
by law. Danielle Campbell Weiss.
This instrument was prepared by Danielle Campbell Weiss, Assistant City Attorney, City of South Bend, Indiana, Department of Law, 227 W.
Jefferson Boulevard, Suite 1200S, South Bend, IN 46601. .
Page 3 of 3
EXHIBIT C
License Agreement for Temporary Use
Redevelopment Commission Agenda Item
DATE: 9/26/23
FROM: Erik Glavich, Director, Growth & Opportunity
SUBJECT: Property Bros LLC Development Agreement
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Development Agreement for Lafayette Building and parking lot (115, 117-119 S.
Lafayette Blvd.) with Lafayette OpCo LLC
SPECIFICS: The Commission will consider a Development Agreement with Lafayette OpCo LLC to
provide funding in support of a rehabilitation project for the Lafayette Building and adjacent
parking lot. This development agreement will be considered along with a separate real estate
purchase agreement for the properties. The developer will restore the building while
maintaining important architectural and design elements, with the project ultimately creating
30 apartments and retail space on the ground floor.
This Agreement specifies that (1) the Funding Amount provided by Redevelopment Commission
will not exceed $750,000 and (2) the Private Investment by the Developer will be no less than
$8,000,000. The Developer agrees to complete the project within 5 years of the Closing Date
per the real estate purchase agreement. The Funding Amount will be used for Local Public
Improvements such as constructing an ADA-compliant entrance, rehabilitating the parking lots,
and exterior improvements. 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 5A2
1
DEVELOPMENT AGREEMENT
This Development Agreement (this “Agreement”), is effective as of September 28, 2023
(the “Effective Date”), by and between the City of South Bend, Department of Redevelopment,
acting by and through its governing body, the South Bend Redevelopment Commission (the
“Commission”), and Lafayette OpCo LLC, an Indiana Limited Liability Company, (the
“Developer”) (each, a “Party,” and collectively, the “Parties”).
RECITALS
WHEREAS, 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 Commission owns certain vacant and inactive real property described in
Exhibit A, which, concurrently with this Agreement, is being sold to Developer through a Real
Estate Purchase Agreement (the “Purchase Agreement”), inclusive of the approximately 37,300
square foot building (including the basement), surface parking areas, and drive areas located
thereon, and all fixtures, easements, appurtenances, hereditaments, rights, powers, privileges, and
other improvements thereon and/or appurtenant thereto (collectively, the “Developer Property”);
and
WHEREAS, the Developer currently has private financing and desires to construct,
renovate, or otherwise rehabilitate certain elements of the Developer Property (the “Project”) in
accordance with the project plan (the “Project Plan”) attached hereto as Exhibit B; and
WHEREAS, the Developer Property is located within the corporate boundaries of the City
of South Bend, Indiana (the “City”), within the River West Development Area (the “Area”); and
WHEREAS, the Commission has adopted (and subsequently amended, from time to time)
a development plan, which contemplates development of the Area consistent with the Project; and
WHEREAS, the Commission believes that accomplishing the Project as described herein
is in the best interests of the health, safety, and welfare of the City and its residents; and
WHEREAS, the Commission desires to facilitate and assist the Project by undertaking the
local public improvements stated in Exhibit C (the “Local Public Improvements”) and the
financing thereof, subject to the terms and conditions of this Agreement and in accordance with
the Act.
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:
2
SECTION 1. DEFINITIONS.
Unless otherwise defined in this Agreement, capitalized terms used in this Agreement have
the following meanings:
1.1 Assessed Value. “Assessed Value” means the market value-in-use of a property,
used for property tax assessment purposes as determined by the St. Joseph County Assessor.
1.2 Board of Works. “Board of Works” means the Board of Public Works of the City,
a public body granted the power to award contracts for public works pursuant to I.C. 36-1-12.
1.3 Funding Amount. “Funding Amount” means an amount not to exceed Seven
Hundred Fifty Thousand Dollars ($750,000.00) of tax increment finance revenues to be used for
paying the costs associated with the construction, equipping, inspection, and delivery of the Local
Public Improvements.
1.4 Private Investment. “Private Investment” means an amount no less than Eight
Million Dollars ($8,000,000.00) to be expended by the Developer for the costs associated with
constructing the improvements set forth in the Project Plan, including architectural, engineering,
and any other hard or soft costs directly related to completion of the Project that are expected to
contribute to increases in the Assessed Value of the Developer Property.
SECTION 2. INTERPRETATION, TERMS, AND RECITALS.
2.1 Interpretation.
(a)The terms “herein,” “hereto,” “hereunder,” and all terms of similar import
shall be deemed to refer to this Agreement as a whole rather than to any Article of, Section
of, or Exhibit to this Agreement.
(b)Unless otherwise specified, references in this Agreement to (i) “Section” or
“Article” shall be deemed to refer to the Section or Article of this Agreement bearing the
number so specified, (ii) “Exhibit” shall be deemed to refer to the Exhibit of this Agreement
bearing the letter or number so specified, and (iii) references to this “Agreement” shall
mean this Agreement and any exhibits and attachments hereto.
(c)Captions used for or in Sections, Articles, and Exhibits of this Agreement
are for convenience of reference only and shall not affect the construction of this
Agreement.
(d)The terms “include,” “including,” and “such as” shall each be construed as
if followed by the phrase “without being limited to.”
2.2 Recitals. The Recitals set forth above are incorporated into and are a part of this
Agreement for all purposes.
3
SECTION 3. ACCESS.
3.1 Grant of Easement. The Developer will grant to the Commission a temporary, non-
exclusive easement on, in, over, under and across any part(s) of the Developer Property (the
“Easement”) in the form attached hereto as Exhibit D, to permit the Commission to fulfill its
obligations under this Agreement, including the construction, equipping, inspection, and delivery
of the Local Public Improvements. The Easement shall (a) inure to the benefit of the Commission
and the Board of Works or any contractors acting on behalf of the Commission in connection with
the construction, equipping, inspection, and delivery of the Local Public Improvements; (b) shall
bind the Developer and its grantees, successors, and assigns; and (c) shall terminate no later than
upon completion of the Local Public Improvements, as determined by the Board of Works.
SECTION 4. DEVELOPER’S OBLIGATIONS.
4.1 Generally. The Parties acknowledge and agree that the Commission’s agreements
to perform and abide by the covenants and obligations set forth in this Agreement are material
consideration for the Developer’s commitment to perform and abide by the covenants and
obligations of the Developer contained in this Agreement and the Purchase Agreement.
4.2 The Project.
(a)The Developer will perform all necessary work to complete the
improvements set forth in the Project Plan attached hereto as Exhibit B and the plans and
specifications to be approved by the City’s Executive Director of Community Investment,
or their designee, pursuant to Section 4.7 (“Submission of Plans and Specifications for
Project”) of this Agreement, which improvements shall comply with all zoning and land
use laws and ordinances.
(b)The Developer will expend the Private Investment to complete the Project
in accordance with the Project Plan attached hereto as Exhibit B and the plans and
specifications to be approved by the Commission pursuant to Section 4.7 (“Submission of
Plans and Specifications for Project”) of this Agreement.
4.3 Cooperation. The Developer agrees to endorse and support the Commission’s
efforts to expedite the Local Public Improvements through any required planning, design, public
bidding, construction, inspection, waiver, permitting, and related regulatory processes.
4.4 Obtain Necessary Easements. The Developer agrees to obtain any and all
easements from any governmental entity and/or any other third parties that the Developer or the
Commission reasonably deems necessary or advisable in order to complete the Local Public
Improvements, and the obtaining of such easements is a condition precedent to the Commission’s
obligations under this Agreement.
4.5 Timeframe for Completion. The Developer hereby agrees to complete the Project
as set forth in the Project Plan and any other obligations the Developer may have under this
Agreement by the completion date established in the Purchase Agreement, or otherwise agreed
between the Developer and the Commission, as may be modified due to unforeseen circumstances
4
and delays (the “Mandatory Project Completion Date”). The Developer further agrees the total
Project will be completed in accordance with the Project Plan attached hereto as Exhibit B.
Notwithstanding any provision of this Agreement to the contrary, the Developer’s failure to
complete the Project or any other obligations the Developer may have under this Agreement by
the Mandatory Project Completion Date will constitute a default under this Agreement without
any requirement of notice of or an opportunity to cure such failure.
4.6 Reporting Obligations.
(a)Upon the letting of contracts for substantial portions of the Project (for
purposes of this Agreement, substantial portions of the Project shall mean the letting of
contracts in an amount greater than $100,000) and again upon substantial completion of
the Project, the Developer hereby agrees to report to the Commission the number of local
contractors and local laborers involved in the Project, the amount of bid awards for each
contract related to the Project, and information regarding which contractor is awarded each
contract with respect to the Project.
(b)On or before June 30 and December 31 of each year until substantial
completion of the Project, the Developer shall submit to the Commission a report, in the
format set forth as Exhibit E, demonstrating the Developer’s good-faith compliance with
the terms of this Agreement. The report shall include the following information and
documents: (i) a status report of the construction completed to date, (ii) an update on the
project schedule, (iii) an itemized accounting generally identifying the Private Investment
to date, and (iv) a status report of the number of jobs created for employment at the
Developer Property.
4.7 Submission of Plans and Specifications for Project. Promptly upon completion of
all plans and specifications for the Project, or changes thereto, and prior to the Commission’s
expenditure of the Funding Amount, the Developer shall deliver a complete set thereof to the City’s
Executive Director of Community Investment, or their designee, who may approve or disapprove
said plans and specifications for the Project in his or her sole discretion and may request revisions
or amendments to be made to the same.
4.8 Costs and Expenses of Construction of Project. The Developer hereby agrees to
pay, or cause to be paid, all costs and expenses of planning, construction, management, and all
other activities or purposes associated with the Project (including legal, architectural, and
engineering fees), exclusive of the Local Public Improvements, which shall be paid for by the
Commission by and through the Funding Amount subject to the terms of this Agreement.
4.9 Specifications for Local Public Improvements. The Developer will be responsible
for the preparation of all bid specifications related to the Local Public Improvements, and the
Developer will pay all costs and expenses of such preparation, provided, however, that if the
Commission pays any costs or expenses of such preparation, then the amount paid by the
Commission will be deducted from the Funding Amount. The Developer will submit all bid
specifications related to the Local Public Improvements to the City of South Bend Engineering
Department (the “Engineering Department”). The Engineering Department may approve or
5
disapprove said bid specifications for the Project in its sole discretion and may request revisions
or amendments to be made to the same. The Commission shall not be required to expend the
Funding Amount unless the Engineering Department has approved all bid specifications.
4.10 Non-Interference. Developer hereby agrees to use commercially reasonable efforts
to minimize disruption for those living and working near the Developer Property during
construction of the Project.
4.11 Insurance. The Developer shall purchase and maintain comprehensive insurance
coverage as is appropriate for the work being performed with respect to the Project. The Developer
shall provide proof of such adequate insurance to the Commission and shall notify the Commission
and the City of any change in or termination of such insurance. During the period of construction
or provision of services regarding any Local Public Improvements, the Developer shall maintain
insurance in the kinds and for at least the minimum amounts as described in Exhibit F attached
hereto and the Commission and the City shall be named as additional insureds on such policies
(but not on any worker’s compensation policies).
4.12 Information. Following the closing of transaction contemplated by the Purchase
Agreement and the Developer’s acquisition of title to the Property, Developer agrees to provide
any and all due diligence items with respect to the Project reasonably requested by the Commission.
SECTION 5. COMMISSION’S OBLIGATIONS.
5.1 Generally. The Parties acknowledge and agree that the Developer’s agreement to
perform and abide by the covenants and obligations set forth in this Agreement is material
consideration for the Commission’s commitment to perform and abide by the covenants and
obligations of the Commission contained in this Agreement.
5.2 Completion of Local Public Improvements.
(a)The Commission hereby agrees to complete (or cause to be completed) the
Local Public Improvements described in Exhibit C attached hereto on a schedule to be
reasonably determined and agreed to by the Commission and the Developer, as may be
modified due to unforeseen circumstances and delays.
(b)Before any work on the Local Public Improvements will commence, (a) the
Commission will have received satisfactory plans and specifications for the Project and
responded in accordance with Section 4.7 (“Submission of Plans and Specifications for
Project”) of this Agreement, and (b) the Engineering Department will have received
satisfactory bid specifications for the Local Public Improvements and approved the same
in accordance with Section 4.9 (“Specifications for Local Public Improvements”) of this
Agreement.
(c)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.
6
(d)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,
Developer, at its sole option, may determine to pay to the Commission the amount of the
excess costs to permit timely completion of the Local Public Improvements by the
Commission, or an agent of the Commission, which amounts shall be applied for such
purpose. If Developer chooses not to pay any such excess costs of the Local Public
Improvements (above the Funding Amount), the Commission may reduce the scope of the
Local Public Improvements to the amount which may be funded with the Funding Amount.
In no event will the Commission be required to spend more than the Funding Amount in
connection with the Local Public Improvements.
5.3 Cooperation. The Commission agrees to endorse and support the Developer’s
efforts to expedite the Project through any required planning, design, permitting, waiver, and
related regulatory processes, provided, however, that the Commission will not be required to
expend any money in connection therewith.
5.4 Public Announcements, Press Releases, and Marketing Materials. The
Commission hereby agrees to coordinate all public announcements and press releases relating to
the Project with the Developer.
SECTION 6. COOPERATION IN THE EVENT OF LEGAL CHALLENGE.
6.1 Cooperation. In the event of any administrative, legal, or equitable action or other
proceeding instituted by any person not a party to this Agreement challenging the validity of any
provision of this Agreement, the Parties shall cooperate in defending such action or proceeding to
settlement or final judgment including all appeals. Each Party shall select its own legal counsel.
In no event shall the Commission be required to bear the fees and costs of the Developer’s
attorneys. The Parties agree that if any other provision of this Agreement, or this Agreement as a
whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties
agree to be bound by the terms of this Section 6.1, which shall survive such invalidation,
nullification, or setting aside.
SECTION 7. DEFAULT.
7.1 Default. Any failure by either Party to perform any term or provision of this
Agreement, which failure continues uncured for a period of thirty (30) days following written
notice of such failure from the other Party, shall constitute a default under this Agreement. Any
notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and,
where appropriate, the manner in which said failure satisfactorily may be cured. Upon the
occurrence of a default under this Agreement, the non-defaulting Party may (a) terminate this
Agreement, or (b) institute legal proceedings at law or in equity (including any action to compel
specific performance) seeking remedies for such default. If the default is cured within thirty (30)
days after the notice described in this Section 7.1, then no default shall exist, and the noticing Party
shall take no further action.
7.2 Reimbursement Obligation. In the event that the Developer fails (a) to complete
the Project by the Mandatory Project Completion Date, or (b) to expend the full amount of the
7
Private Investment by the Mandatory Project Completion Date, then upon the written demand of
the Commission, the Developer will repay the Commission One Hundred Fifty Percent (150%) of
the portion of the Funding Amount expended by the Commission in furtherance of the Local Public
Improvements as of the date of the Commission’s demand.
7.3 Force Majeure. Notwithstanding anything to the contrary contained in this
Agreement, none of the Parties shall be deemed to be in default where delays in performance or
failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor
disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, pandemic or epidemic, acts of
God, acts of terrorism, restrictions imposed or mandated by governmental entities, enactment of
conflicting state or federal laws or regulations, new or supplemental environments regulations,
contract defaults by third parties, or similar basis for excused performance which is not within the
reasonable control of the Party to be excused (each, an event of “Force Majeure”). Upon the
request of any of the Parties, a reasonable extension of any date or deadline set forth in this
Agreement due to such cause will be granted in writing for a period necessitated by the event of
Force Majeure, or longer as may be mutually agreed upon by all the Parties.
SECTION 8. NO AGENCY, JOINT VENTURE, OR PARTNERSHIP; CONFLICT OF
INTEREST; INDEMNITY.
8.1 No Agency, Joint Venture or Partnership. The Parties acknowledge and agree that:
(a)The Project is a private development;
(b)None of the Commission, the Board of Works, or the Developer 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 Board of Works, and/or the
Developer expressly accepts the same; and
(c)The Parties hereby renounce the existence of any form of agency
relationship, joint venture or partnership between the Commission, the Board of Works,
and the Developer and agree that nothing contained herein or in any document executed in
connection herewith shall be construed as creating any such relationship between the
Commission, the Board of Works, and the Developer.
8.2 Conflict of Interest; Commission Representatives Not Individually Liable. No
member, official, or employee of the Commission or the City may have any personal interest,
direct or indirect, in the Project, nor shall any such member, official, or employee participate in
any decision relating to the relationship of the Parties which affects his or her personal interests or
the interests of any corporation, partnership, or association in which he or she is, directly or
indirectly, interested. No member, official, or employee of the Commission or the City shall be
personally liable to the Developer, or any successor in interest, in the event of any default or breach
by the Commission or for any amount which may become due to the Developer, or its successors
and assigns, or on any obligations under the terms of this Agreement. No partner, member,
employee, or agent of the Developer or successors of them shall be personally liable to the
Commission under this Agreement.
8
8.3 Indemnity. The Developer agrees to indemnify, defend, and hold harmless the
Commission and the City from and against any third-party claims suffered by the Commission or
the City resulting from or incurred in connection with the Local Public Improvements or the
Project.
SECTION 9. MISCELLANEOUS.
9.1 Severability. If any term or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions
of this Agreement shall continue in full force and effect unless amended or modified by mutual
consent of the parties.
9.2 Waiver. Neither the failure nor any delay on the part of a Party to exercise any
right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power, or privilege preclude any other or further
exercise of the same or of any right, remedy, power, or privilege with respect to any occurrence
be construed as a waiver of any such right, remedy, power, or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted
to have granted such waiver.
9.3 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
Project and 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 party 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.
9.4 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.
9.5 Attorneys’ Fees. In the event the Commission successfully pursues any legal action
(including arbitration) to enforce or interpret this Agreement to a final resolution in which the
Commission is deemed by the ultimate decision maker to be victorious, Developer shall pay
Commission’s reasonable attorneys’ fees and other costs and expenses (including expert witness
fees).
9
9.6 Equal Employment Opportunity. The Developer, for itself and its successors and
assigns, agrees that during the construction of the Project:
(a)The Developer will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. The Developer agrees
to post in conspicuous places, available to employees and applicants for employment,
notices setting forth the provisions of this nondiscrimination clause; and
(b)The Developer will state, in all solicitations or advertisements for
employees placed by or on behalf of the Developer, that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, or national origin.
9.7 Counterparts. This Agreement 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.
9.8 Notices and Demands. Any notice, demand, or other communication required or
permitted under the terms of this Agreement may be delivered (a) by hand-delivery (which will be
deemed delivered at the time of receipt), (b) by registered or certified mail, return receipt requested
(which will be deemed delivered three (3) days after mailing), or (c) by overnight courier service
(which will be deemed delivered on the next business day) to each Party’s respective addresses
and representatives stated below.
Developer: Lafayette OpCo LLC
333 Greene Ave., Unit 12A
Brooklyn, NY 11238
Attn: Rachel Brandenberger
With a copy to: Barnes & Thornburg LLP
201 S. Main St., Suite 400
South Bend, IN 46601
Attn: Timothy A. Emerick
Commission: South Bend Redevelopment Commission
1400S County-City Building
227 W. Jefferson Blvd.
South Bend, IN 46601
Attn: Executive Director,
South Bend Department of Community Investment
With a copy to: South Bend Legal Department
1200S County-City Building
227 W. Jefferson Blvd.
South Bend, IN 46601
Attn: Corporation Counsel
10
9.9 Governing Law. This Agreement is governed by and construed in accordance with
the laws of the State of Indiana.
9.10 Authority. Each undersigned person executing and delivering this Agreement on
behalf of a Party represents and certifies that he or she is the duly authorized officer or
representative of such Party, that he or she has been fully empowered to execute and deliver this
Agreement on behalf of such Party, and that all necessary action to execute and deliver this
Agreement has been taken by such Party.
9.11 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon any person, firm, or corporation other than the Parties
hereto and their respective successors or assigns, any remedy or claim under or by reason of this
Agreement or any term, covenant, or condition hereof, as third-party beneficiaries or otherwise,
and all of the terms, covenants, and conditions hereof shall be for the sole and exclusive benefit of
the Parties herein.
9.12 Assignment. The Developer’s rights under this Agreement shall be personal to the
Developer and shall not run with the land. The Developer may not assign its rights or obligations
under this Agreement to any third party without obtaining the Commission’s prior written consent
to such assignment, which the Commission may give or withhold in its sole discretion. In the
event the Developer seeks the Commission’s consent to any such assignment, the Developer shall
provide to the Commission all relevant information concerning the identities of the persons or
entities proposed to be involved in and an explanation of the purposes for the proposed
assignment(s).
9.13 Further Assurances. The Parties agree that they will each undertake in good faith,
as permitted by law, any action and execute and deliver any document reasonably required to carry
out the intents and purposes of this Agreement.
9.14 Exhibits. All exhibits described herein and attached hereto are incorporated into
this Agreement by reference.
9.15 Entire Agreement. No representation, promise, or inducement not included in this
Agreement will be binding upon the Parties hereto. This Agreement cannot be modified except
by mutual agreement of the Parties set forth in a written instrument signed by the Parties’
authorized representatives.
9.16 Time. Time is of the essence of this Agreement.
Signature Page Follows
11
IN WITNESS WHEREOF, the Parties hereby execute this Agreement to be effective as of
the Effective Date stated above.
SOUTH BEND REDEVELOPMENT
COMMISSION
______________________________
Marcia I. Jones, President
ATTEST:
______________________________
Vivian Sallie, Secretary
Lafayette OpCo LLC
By: Lafayette ParentCo LLC
Its: Manager
By: ______________________________
Rachel Brandenberger, Manager
12
EXHIBIT A
Description of Developer Property
Lafayette Building
Tax ID No. 018-3009-0288
Parcel Key No. 71-08-12-151-003.000-026
Legal Description: Lot 393 Ex 60'W End O P So Bend
Commonly known as: 115 S. Lafayette Blvd, South Bend, Indiana 46601
Parking Lot
Tax ID No. 018-3009-0289
Parcel Key No. 71-08-12-151-004.000-026
Legal Description: 42 1/2' N Side Lot 394 Op South Bend
Commonly known as: 117-119 S. Lafayette Blvd, South Bend, Indiana 46601
13
EXHIBIT B
Project Plan
The Developer will complete the following work in accordance with the terms and
conditions of this Agreement and in compliance with all applicable laws and regulations:
The Developer will complete the rehabilitation of the property known as the Lafayette
Building, including but not restricted to:
•Construct at least thirty (30) apartment units; and
•Create ground floor retail spaces.
The Developer understands and agrees that the work shall not include any reduction in the
size of the open atrium space, which shall remain continuous from the ground floor to the fifth
floor, nor shall the work include any reduction to the size of the skylight.
14
EXHIBIT C
Description of Local Public Improvements
The Commission 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:
•Construct an entrance that complies with requirements established by the
Americans with Disabilities Act and other applicable laws and regulations;
•Rehabilitate (e.g., milling and resurfacing) parking lot(s);
•Complete exterior improvements including masonry work and the rehabilitation or
replacement of windows; and
•Complete any other local public improvements eligible to be paid from tax
increment finance revenues as agreed upon between the Parties.
Any and all costs associated with improvements in excess of the Funding Amount or not
approved pursuant to Section 4.9 (“Specifications for Local Public Improvements”) are the sole
responsibility of the Developer.
15
EXHIBIT D
Form of Easement
16
GRANT OF TEMPORARY EASEMENT
THIS INDENTURE, made as of the _________ of ____________, 2023 (the “Effective
Date”), by and between Lafayette OpCo LLC, with offices at 333 Greene Avenue, Unit 12A,
Brooklyn, New York 11238 (the “Grantor”), and the South Bend Redevelopment Commission,
governing body of the City of South Bend Department of Redevelopment, 1400S 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
Development Agreement by and between Grantor and Grantee, dated ____________, 2023 (the
“Development Agreement”). Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Development 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 Development Agreement; or (c)
such earlier date as Grantor and Grantee may agree to in writing.
17
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:
Lafayette OpCo LLC
By: Lafayette ParentCo LLC
Its: Manager
Printed: Rachel Brandenberger
Its: Manager
STATE OF _________________ )
) SS:
COUNTY OF _________________ )
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.
WITNESS my hand and Notarial Seal this __________ day of _______________, 20____.
________________________________________________
___________________________________, Notary Public
Residing in _________________ County, _____________
My Commission Expires: _______________________
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless
required by law. /s/ Danielle Campbell Weiss.
This instrument was prepared by Danielle Campbell Weiss, Assistant City Attorney, City of South Bend, Indiana, Department of Law, 227 W.
Jefferson Boulevard, Suite 1200S, South Bend, IN 46601.
18
EXHIBIT 1
Description of Property
Lafayette Building
Tax ID No. 018-3009-0288
Parcel Key No. 71-08-12-151-003.000-026
Legal Description: Lot 393 Ex 60'W End O P So Bend
Commonly known as: 115 S. Lafayette Blvd, South Bend, Indiana 46601
Parking Lot
Tax ID No. 018-3009-0289
Parcel Key No. 71-08-12-151-004.000-026
Legal Description: 42 1/2' N Side Lot 394 Op South Bend
Commonly known as: 117-119 S. Lafayette Blvd, South Bend, Indiana 46601
19
EXHIBIT E
Form of Report to Commission
City of South Bend
Department of Community Investment
Answer the below questions and return to the Department of Community Investment.
Project Information
Project Name: __________________________________________________________________
Address: _______________________________________________________________________
Construction Completed to Date:
Project Schedule Update:
Itemized Accounting of Private Investment to Date:
Number of Jobs Created:
Name: _______________________________________
Address: _______________________________________
_______________________________________
Position: _______________________________________
Email: _______________________________________
Signature: _______________________________________ Date: ___________________
Development Agreement Review
EXHIBIT F
Minimum Insurance Amounts
A.Worker’s Compensation
1.State Statutory
2.Applicable Federal Statutory
3.Employer’s Liability $100,000.00
B.Comprehensive General Liability
1.Bodily Injury
a.$1,000,000.00 Each Occurrence
b.$2,000,000.00 Annual Aggregate Products
and Completed Operation
2.Property Damage
a.$1,000,000.00 Each Occurrence
b.$2,000,000.00 Annual Aggregate
C.Comprehensive Automobile Liability
1.Combined Single Limit (Bodily Injury and Property Damage)
a.$1,000,000.00 Each Accident
D.Umbrella Liability
1.$10,000,000.00 Each Occurrence
2.$10,000,000.00 Annual Aggregate
Redevelopment Commission Agenda Item
DATE: 9/25/23
FROM: Joseph Molnar
SUBJECT: Temporary Use Agreement 117/119 Lafayette
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Temporary Use Agreement for the use of the parking lot at 117/119 Lafayette
Specifics: Staff has submitted a purchase agreement for the Lafayette Building with Lafayette
OpCo LLC. In that purchase agreement, the sale of the building also includes the parking lot to
the immediate south of the building at 117/119 Lafayette. That parking lot will provide critical
parking spaces for the Lafayette Building rehabilitation.
Currently, the parking lot is used by City of South Bend employees. This Temporary Access
Agreement allows City staff to still park at 117/119 Lafayette until construction begins at the
Lafayette Building. The agreement shall commence immediately upon sale of the property and
expire December 31, 2024 or Lafayette OpCo may terminate the agreement and provide thirty
(30) days notice.
Staff requests approval of this 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 5A3
LICENSE AGREEMENT FOR TEMPORARY USE
This License Agreement for Temporary Use (this “Agreement”) is made on September 28, 2023,
(the “Effective Date”), by and between Lafayette OpCo LLC, an Indiana limited liability company
(“Owner”), and the City of South Bend, Indiana, Department of Redevelopment, acting by and through it
governing body, the South Bend Redevelopment Commission (“City”), (each a “Party” and collectively
the “Parties”).
RECITALS
A.Owner and City are parties to that certain Real Estate Purchase Agreement, dated
September 28, 2023 (the “Purchase Agreement”), wherein Owner purchased from City certain real
property in South Bend, Indiana, inclusive of the approximately 37,357 square foot building (the
“Lafayette Building”) and surface parking area, commonly known as 117 & 119 Lafayette and
more particularly described in Exhibit 1 (the “Parking Lot”).
B.Owner intends to implement at a future date (the “Construction Commencement
Date”) certain property improvements to the Lafayette Building which will require the use of the
Parking Lot.
C.City desires to occupy and use the Parking Lot prior to the Construction
Commencement Date, for the limited purposes described herein.
D.Owner agrees to allow City to occupy and use the Parking lot prior to the
Construction Commencement Date, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and representations made in this
Agreement, the legal adequacy of which are hereby acknowledged, Owner and City agree as follows:
1.Temporary License; No Lease or Easement. Owner hereby grants to City a non-exclusive,
temporary license to occupy and use the Parking Lot for the limited purpose of ordinary parking by City’s
employees but for no other use except upon the express advance written consent of Owner, which consent
may be withheld at Owner’s sole discretion. The Parties mutually acknowledge and agree that this
Agreement does not constitute a lease of or easement over the Parking Lot. Notwithstanding to the
contrary contained herein, City and its invites shall have no right or license to use, enter or access any
other property owned by Owner other than the Parking Lot.
2.Term. The license granted to City hereunder shall commence on the Effective Date and
expire on December 31, 2024, unless earlier terminated in accordance with this Agreement.
3.Termination. Owner may terminate this Agreement at any time by delivering written
notice to City at least thirty (30) days prior to Owner’s elected Construction Commencement Date, in
which case the license granted hereunder shall automatically terminate on the Construction
Commencement Date.
4.Compliance with Law, Personal Property. City’s activities in and on the Parking Lot shall
be in compliance with all applicable laws, codes and regulations. It is the City’s responsibility to know
and conform to these laws, codes or regulations and to obtain all required permits. City’s personal property
shall be removed by City prior to the expiration or termination of this Agreement. The City may not
construct or install any improvements of any kind or description on the Parking Lot without Owner’s prior
written consent.
5.Maintenance; Restoration. City, at its sole cost, will at all times maintain and keep in good
order and condition the Parking Lot, including, but not limited to, clearing snow and ice from all sidewalks
or other public rights-of-way on or abutting the Parking Lot, including any tree lawn area, in accordance
with applicable zoning, building, property maintenance, and other regulations and authorities. In the event
the City (or any of the City’s licensees or invitees) disturbs or damages any part of the Parking Lot, the
City will promptly restore such area(s) to substantially the same condition that existed immediately prior
to such disturbance or damage, to Owner’s satisfaction.
6.Security. City understands and agrees that Owner shall not be liable for any loss, damage,
destruction, or theft of any of the City’s personal property, or any bodily harm or injury that may result
from the City’s use of the Parking Lot.
7.Hazardous Materials. City will not cause or permit, knowingly or unknowingly, any
hazardous material to be brought or remain upon, kept, used, discharged, leaked, or emitted upon the
Parking Lot.
8.Indemnification. City agrees to indemnify and hold Owner (and its members, manager,
employees, agents, and contractors) harmless from and against any and all claims, demands, judgments,
losses, fines, penalties, costs, damages, and liabilities of any kind resulting or arising from (i) the violation
by City of any law, ordinance or statute, (ii) any accident or other occurrence directly or indirectly arising
from the use and occupancy of the Parking Lot by City’s agents, employees, guests, invitees and assigns;
or (iii) City’s failure to comply with the terms and conditions of this Agreement.
9.Reservation of Rights. Owner reserves for itself the free use of the Parking Lot in any
manner that does not substantially interfere with or obstruct the License under this Agreement.
10.Interpretation; Governing Law. This Agreement has been negotiated and drafted equally
by both Parties and shall not be more strictly construed, nor ambiguities Agreement be presumptively
resolved, against either Party. This Agreement will be governed and construed in accordance with the
laws of the State of Indiana.
11.Assignment. City shall have no right to assign this Agreement or the licenses granted
herein to any other person or party without Owner’s prior written consent. The parties acknowledge and
agree that the license herein granted is personal to City and shall not inure to the benefit of any other party.
12.Notices. All notices, consents, requests, demands and other communications hereunder are
to be in writing, and are deemed to have been duly given or made: (i) when delivered in person; (ii) three
days after deposited in the United States mail, first class postage prepaid; or (iii) in the case of overnight
courier services, one business day after delivery to the overnight courier service with payment provided:
City: Caleb Bauer
Executive Director
City of South Bend, Indiana
1400 S. County-City Building
227 W. Jefferson Blvd.
South Bend, IN 46601
With a copy to: South Bend Legal Department
1200 S County-City Building
227 W. Jefferson Blvd.
South Bend, IN 46601
Attn. Corporation Counsel
Owner: Lafayette OpCo LLC
333 Greene Ave, 12A
Brooklyn, NY 11238
Attn: Rachel Brandenberger
With a copy to: Barnes & Thornburg LLP
201 South Main Street, Suite 400
South Bend, IN 46601
Attn: Timothy A. Emerick
13.Entire Agreement; Amendment. This Agreement constitutes the entire agreement between
the City and Owner with respect to the subject matter hereof, and shall supersede all prior discussions,
understandings, or agreements, whether written or oral, between the City (or any representative of the
City) and the Owner concerning the same. None of the covenants, terms or conditions of this Agreement
shall in any manner be amended, altered, waived, modified, changed or abandoned, except by a written
instrument, duly signed and acknowledged, by the City and Owner.
14.Waiver. Neither the failure nor any delay on the part of a party to exercise any right,
remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same
or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege
with respect to any occurrence 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.
15.Authority; Counterparts; Signatures. Each undersigned person certifies that he or she is
duly authorized to bind his or her respective Party to the terms of this Agreement. This Agreement may
be executed in one or more counterparts, each of which shall be an original and all of which taken together
shall be one and the same instrument. Electronically transmitted signatures will be regarded as original
signatures.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties have signed this License Agreement for Temporary Use to
be effective as of the Effective Date.
OWNER:
Lafayette Opco LLC
BY; LAFAYETTE PARENTCO LLC
ITS: MANAGER
By:
Rachel Brandenberger, Manager
CITY:
South Bend Redevelopment Commission
Marcia I. Jones, President
ATTEST:
Vivian Sallie, Secretary
EXHIBIT 1
Description of Property
Parcel No. 71-08-12-151-004.000-026
Tax ID: 018-3009-0289
Legal Description: 42 1/2' N SIDE LOT 394 ORIGINAL PLAT SOUTH BEND
Commonly Known As: 117 119 LAFAYETTE
Redevelopment Commission Agenda Item
DATE: 9/26/23
FROM: Erik Glavich, Director, Growth & Opportunity
SUBJECT: Approving Riverfront Liquor License District
Guidelines
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Resolution approving updated “City of South Bend Riverfront Liquor
License District Requirements, Eligibility Criteria, and Procedures”
SPECIFICS: On September 11, 2023, the South Bend Common Council approved two ordinances
(Ordinance Nos. 10965-23 and 10966-23) that expanded South Bend’s Riverfront Development
Project Area, known as the “Riverfront District.” An establishment in the Riverfront District that
meets eligibility criteria could have access to a discounted 3-way “riverfront liquor licenses,”
whereas an establishment outside of the District could access only a market-based liquor
license. Liquor licenses are issued by the Indiana State Alcohol and Tobacco Commission (ATC),
and an application for a riverfront liquor license must be accompanied with a recommendation
by the City.
The Commission was granted the responsibility by the Common Council (Ordinance No. 10165-
12)to develop policies and procedures guiding the issuance of riverfront liquor licenses in the
Riverfront District.
The Commission will consider updated guidelines for the Riverfront District that strengthen the
current guidelines and requirements to ensure that establishments possessing a riverfront
liquor license substantially contribute to the cultural fabric and quality of life in the City of
South Bend.
Staff recommends approval of this Resolution.
_________________________Pres/V-Pres
ATTEST: __________________Secretary
Date: ____________________
Approved Not Approved
SOUTH BEND REDEVELOPMENT COMMISSION
ITEM 5A4
RESOLUTION NO. 3580
A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION
ADOPTING THE SOUTH BEND RIVERFRONT LIQUOR LICENSE DISRICT
REQUIREMENTS, ELIGIBILITY CRITERIA, AND PROCEDURES
WHEREAS, to complement economic development efforts of cities and towns, the Indiana
General Assembly enacted Ind. Code § 7.1-3-20-16.1 (the “Act”), which allows the Indiana
Alcohol and Tobacco Commission (“ATC”) to issue one-way, two-way, and three-way
nontransferable permits without regard to the ATC quota restrictions to establishments within an
authorized Municipal Riverfront Development Project (“Riverfront Permits”); and
WHEREAS, the Act requires the Municipal Riverfront Development Project areas to be
located within existing economic development areas established by the Redevelopment
Commission (the “Commission”) under Ind. Code § 36-7-14; and
WHEREAS, the South Bend Common Council (the “Council”) initially established a
Municipal Riverfront Development Project in the City of South Bend in accordance with the Act
through adoption of its Ordinance No. 10165-12, which was subsequently amended in its legal
description by Ordinance No. 10178-12 and expanded by Ordinance Nos. 10281-13 and 10501-
17; and
WHEREAS, the Commission was directed by the Council in its Ordinance No. 10165-12
to develop policies and procedures for individuals, corporations, and business entities to apply for
a Riverfront License pursuant to the Act; and
WHEREAS, the Council recently authorized and established boundaries for two new
Municipal Riverfront Development Projects through Ordinance No. 10965-23 authorizing and
establishing “The Expanded West Riverfront District” and Ordinance No. 10966-23 authorizing
and establishing “The Expanded East Riverfront District” (collectively, the “Riverfront District”);
and
WHEREAS, the Commission now desires to update the established criteria, policies, and
procedures for individuals, corporations, and business entities to apply for a Riverfront License
located in the Riverfront District, pursuant to the Act.
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT
COMMISSION AS FOLLOWS:
1. The Commission hereby approves and adopts the City of South Bend Riverfront
Liquor License District Requirements, Eligibility Criteria, and Procedures attached hereto as
Exhibit A.
2. This Resolution will be in full force and effect upon its adoption by the
Commission.
ADOPTED at a meeting of the South Bend Redevelopment Commission held on
September 28, 2023.
SOUTH BEND REDEVELOPMENT
COMMISSION
______________________________
Marcia I. Jones, President
ATTEST:
______________________________
Vivian Sallie, Secretary
EXHIBIT A
City of South Bend Riverfront Liquor License District
Criteria, Requirements, and Procedures
City of South Bend Riverfront Liquor License
District Requirements, Eligibility Criteria, and Procedures
Adopted by the South Bend Redevelopment Commission
September 28, 2023
District Requirements
In addition to complying with all building, health, and zoning ordinances and statutes,
and all rules and regulations of the Indiana State Alcohol and Tobacco Commission
(ATC) and local, state, and federal governments, all applicants must also meet, and
remain in compliance with, the following local requirements annually to be eligible to
apply or renew:
1.The District has been geographically defined to conform to the requirements of
Ind. Code § 7.1-3-2 et. seq. and as shown in Attachments A, B, C, and D. An
applicant’s establishment must be located within these District boundaries.
2.The primary focus of the applicant’s operation must be a dining or cultural
experience rather than solely an alcohol consumption experience. Riverfront
liquor licenses shall be granted to applicants that substantially contribute to the
cultural fabric and quality of life in the City of South Bend:
a.Dining Experience: A friendly, personalized service that continually
provides distinctively great food, a memorable atmosphere, and
exceptional customer service.
b.Cultural Experience Venue: Designed for performance to a live audience;
must include food service.
3.Establishments must serve beverages in glass containers. Reusable acrylic cups
may be acceptable for patio use upon special written request and approval by the
Riverfront License Application Committee.
4.Applicants receiving three-way licenses within the District will be required to
comply with ATC’s requirements regarding the sale of food. An establishment
whose primary focus of operation is a dining experience must qualify as a
restaurant under the ATC’s definition as established by Ind. Code § 7.1-3-20-91
and 905 IAC 1-20-1.2 In addition, patrons must be required by the establishment
to consume food at either a counter or table with seating. For an initial
application, the establishment must also provide sales projections through the
following 12 months reflecting a minimum of 51 percent of total sales in food and
non-alcoholic beverages.
1 https://iga.in.gov/laws/2023/ic/titles/7.1#7.1-3-20-9
2 http://iac.iga.in.gov/iac//iac_title?iact=905
South Bend Riverfront Liquor License District, Criteria and Requirements 2
Adopted September 28, 2023
5. The applicant must demonstrate, through their business plan, how they
differentiate themselves from others already in the market so not to oversaturate
the market for a similar concept.
6. The establishment cannot be a private club, nightclub, or adult entertainment
venue.
7. The establishment must be a non-smoking facility (exception made for upscale
cigar lounge).
8. Temporary exterior signage is not permitted for the establishment; permanent,
attached signage is required.
9. An establishment in the District with an existing three-way license may not sell its
existing license to apply for a 221-3 Riverfront license. There will be a minimum
of a one-year wait between the time a business with an existing license sells its
alcoholic beverage license and when that business will be able to apply for a new
license.
10. The applicant will comply with local application procedures and those required by
the State of Indiana and the ATC.
11. Fees are required to be paid as follows:
a. Applicants must pay an initial application fee of $1,000.00 to the program
administrator, “Downtown South Bend, Inc.”
b. Riverfront permit holders must pay an annual renewal fee of $1,000.00
made payable to the program administrator, “Downtown South Bend, Inc.”
c. Initial permit and annual renewal fees required by the ATC also must be
paid separately and directly to the State at the time of such application
($1,000.00 each at the time these guidelines were approved).
12. Permits are not transferable and not portable within or outside of the District. Any
renewal is subject to compliance with the terms of these local rules. Any
riverfront permit establishment that receives a violation from Excise Police or
from any State or local law enforcement or other government agency or has been
found to be noncompliant with the Riverfront District guidelines will be subject to
non-renewal of its riverfront permit.
13. For all parcels on which the establishment physically resides, including, but not
limited to, parking lots, outdoor dining areas, and any other feature considered
part of or an element of the establishment:
a. Property taxes must not be delinquent. All past-due taxes, penalties, fines,
fees, delinquencies, and other charges must be paid in full at the time of
initial application or renewal to be approved;
South Bend Riverfront Liquor License District, Criteria and Requirements 3
Adopted September 28, 2023
b. There must be no outstanding violations of state or local laws associated
with the establishment and/or the parcel(s) on which the establishment
physically resides (including, but not limited to, building code, zoning code,
fire code, health department standards, etc.); and
c. The establishment and/or the owner of the parcel(s) on which the
establishment physically resides, for the establishment’s parcel(s), must
not owe any unpaid fines, and there must not be any current charges
levied by the City of South Bend or St. Joseph County.
If at any point there becomes a violation as set forth in Subsection (b) above or
unpaid fines or charges accrue as set forth in Subsection (c) above, the applicant
or the riverfront permit holder will be deemed noncompliant with the requirements
set forth in this document.
Eligibility Criteria and Factors
The program administrator, Downtown South Bend, Inc. (DTSB), will review applications
with the Riverfront License Review Committee and make recommendations to the
Mayor for liquor licenses they believe will strengthen the economic vitality of the
Riverfront District and the entire community. The Committee will then approve or deny
the application.
The Committee—through the implementation of the Ind. Code § 7.1-3-20 et. seq., the
requirements set forth in this document, and the Riverfront Development District—seeks
to benefit the District and achieve the following:
• Enhance South Bend’s regional appeal by encouraging a diverse mix of
restaurants and cultural experiences in the Riverfront District;
• Encourage the opening or upgrade of a variety of distinctive and unique year-
round restaurants in South Bend to a degree th at will improve the vitality of the
Riverfront District;
• Assure that issuance of a riverfront license and business activity will not be
detrimental to the property values and business interests of others in the District;
and
• Support growth in the Riverfront District by collaborating with other businesses in
marketing, promotions, and other cultural growth efforts, as well as encouraging
a healthy, safe, and enjoyable atmosphere.
The recommendation of the Riverfront License Review Committee to the Mayor will be
based on the strength of the Review Committee’s determination of the following factors:
• The extent to which the establishment is to be primarily a restaurant and/or
cultural experience rather than a location whose patrons mainly consume
alcohol;
South Bend Riverfront Liquor License District, Criteria and Requirements 4
Adopted September 28, 2023
• The number and nature of the jobs added or retained;
• Financial and ownership strength as demonstrated by a business plan and
related documentation;
• If an existing business, the history of successful operation and reason for the
need for a license; and
• The owner’s participation in the cultural vibrancy of South Bend, and the ongoing
continued participation while demonstrating a collaborative approach to
supporting the Riverfront District.
The above will be evaluated based on the strength of the physical location of the
establishment, the operation itself, the economic impact of the establishment on the
surrounding neighborhood, and the reputation and experience of ownership.
Initial Application Procedure
The initial application process is as follows:
1. The applicant will complete a Riverfront License application and submit it to
DTSB along with a copy of their completed ATC Initial Application or Transfer
permit.
2. The Riverfront License Review Committee will schedule a public meeting with the
applicant to consider the application.
3. The Riverfront License Review Committee will make a recommendation to either
approve or deny the application.
4. An approved applicant will be required to enter into a written contract (the
“Agreement”) with the City agreeing to comply with the requirements set forth in
this document and any and all local rules and conditions that the City places on
the operation.
5. The Mayor will then review the recommendations of the Riverfront License
Review Committee. If the Mayor also approves, then the applicant will be
provided with the approval letter from the Mayor needed for the ATC application.
Renewal Application Procedure
The renewal application process is as follows:
1. The riverfront permit holder seeking renewal will submit to DTSB their completed
ATC Application for Renewal.
2. If the Riverfront License Review Committee, the Mayor, City staff, or DTSB and
its staff have questions about the riverfront permit holder’s previous or current
compliance with the Agreement and with requirements set forth in this document,
South Bend Riverfront Liquor License District, Criteria and Requirements 5
Adopted September 28, 2023
the Review Committee will schedule a public meeting with the renewal applicant
to consider the application.
3. After the public meeting, the Riverfront License Review Committee will make a
recommendation to the Mayor to either approve or deny the renewal application.
For denied applications, the City will send notice to the ATC of the riverfront
permit holder’s noncompliance with the Agreement with a request for non-
renewal of the riverfront permit holder’s permit.
Participants in the Application and Renewal Process
In addition to the applicant, participants in the riverfront liquor license initial and renewal
application process include, but are not exclusive to, the following:
• DTSB as the program administrator;
• The five-person Riverfront License Application Review Committee consisting of:
o The Executive Director of Community Investment or designee;
o A City Council designee;
o A Member of the Redevelopment Commission;
o A DTSB representative; and
o A Mayoral designee;
• A City Legal Department representative; and
• The Mayor
Reporting Obligations of Riverfront Permit Holder
1. After an Applicant’s riverfront permit is approved by the ATC, and no later than
90 days prior to the State’s annual renewal date of the establishment’s permit,
the riverfront permit holder shall submit an annual compliance report to DTSB for
review by the Riverfront License Application Committee. Applicant’s compliance
report shall include all of the following documentation:
a. A revenue report indicating the total annual food, non-alcoholic beverage,
and alcohol/liquor sales for the previous year;
b. A report indicating the total number of days open during the previous year,
along with a schedule of current operating hours; and
c. Proof of payment of the annual renewal fee of $1,000.00 to the program
administrator, “Downtown South Bend, Inc.”
South Bend Riverfront Liquor License District, Criteria and Requirements 6
Adopted September 28, 2023
2. After reviewing the information submitted by riverfront permit holder, the City or
DTSB may request in writing supplemental and/or clarifying information. The
riverfront permit holder shall provide the requested information within fifteen (15)
calendar days following such request.
The riverfront permit holder shall certify under oath the accuracy of all information
submitted to the City or DTSB.
Noncompliance of Riverfront Permit Holder
If the City determines, in its sole discretion, that a riverfront permit holder is not in
compliance with the requirements set forth in this document in any material respect, the
City will notify the riverfront permit holder in writing of such noncompliance, after which
the riverfront permit holder shall have:
a. Thirty (30) calendar days from the date of the City’s notification to explain
in writing the reasons for the noncompliance; and
b. Sixty (60) calendar days from the date of the City’s notification to cure the
noncompliance.
If the City determines that the reasons for noncompliance are inadequate or that the
noncompliance has not been cured, the City, as it deems appropriate, may take
remedial action, including, but not limited to, the following steps:
1. Terminate the Agreement;
2. Send notice to the ATC of the riverfront permit holder’s noncompliance with the
Agreement, including a request for non-renewal of the riverfront permit holder’s
permit; and
3. Send a copy of the notice above, provided to the local ATC Board and Excise
Office, requesting a recommendation to the state ATC office for non-renewal of
the riverfront permit holder’s permit.
As part of its Agreement, Applicant shall agree to release the City and DTSB, their
directors, officers, employees, agents, representatives, departments and divisions, from
any and all claims, demands, liabilities, or causes of action of every kind and nature,
whether now existing or hereafter arising, both known and unknown, which Applicant
has or may have against the City or DTSB which is in any manner related to the
termination of the Agreement by the City or the Applicant for any reason.
Attachment A
Map of the “Expanded West Riverfront District”
Adopted by the South Bend Common Council on September 11, 2023
Attachment B
Map of the “Expanded East Riverfront District”
Adopted by the South Bend Common Council on September 11, 2023
Attachment C
Ordinance No. 10965-23: Authorizing and Establishing the Boundaries of the
“Expanded West Riverfront District”
Adopted by the South Bend Common Council on September 11, 2023
Attachment D
Ordinance No. 10966-23: Authorizing and Establishing the Boundaries of the
“Expanded East Riverfront District”
Adopted by the South Bend Common Council on September 11, 2023
Redevelopment Commission Agenda Item
DATE: September 25, 2023
FROM: Zach Hurst, PE
SUBJECT: Budget Request – East Race Walkway
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 is a budget request for $100,000 to cover sidewalk repairs at the East Race walkway
underneath Colfax Avenue. The low-lying area floods frequently and does not drain properly,
causing inconvenience for pedestrians and bicyclists trying to make use of the East Race facility.
This funding would replace damaged sidewalk panels and lower an existing inlet to help alleviate
the flooding issues.
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 5B1
Redevelopment Commission Agenda Item
DATE: 9/28/2023
FROM: Leslie Biek, PE, Assistant City Engineer
SUBJECT: LaSalle Streetscape Funding Request
Which TIF? (circle one) River West; River East; South Side; Douglas Road; West Washington
PURPOSE OF REQUEST: Funding request for LaSalle Streetscape project
Specifics: Additional $200,000 is requested for change orders for the LaSalle Streetscape
project. Phase 1 has been completed and Phase 2 is now starting. Change order #1 is in process
with additional funding requested in anticipation of funding need.
INTERNAL USE ONLY: Project Code: _122-013R; PROJ 317 ____________________;
Total Amount new/change (inc/dec) in budget: _$200,000_________; Break down:
Costs: Engineering Amt: ________________; Other Prof Serv Amt_________________;
Acquisition of Land/Bldg (circle one) Amt: ___________; Street Const Amt _$200,000____;
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 5B2