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HomeMy WebLinkAboutAccess Agreement - Redevelopment and Studebaker Admin - Studebaker Admin BuildingENVIRONMENTAL INDEMNITY, ABATEMENT, AND ACCESS AGREEMENT THIS ENVIRONMENTAL INDEMNITY, ABATEMENT, AND ACCESS AGREEMENT (the "Agreement") is made and entered into by and between the City of South Bend, Indiana, acting by and through its Board of Public Works and its Redevelopment Commission (collectively, "City"), and Studebaker Admin QOZB, LLC, an Indiana limited liability company ("Developer") (collectively, the "Parties") on the date that the Agreement has been fully executed below. WHEREAS, Developer has a Purchase Term Sheet agreement with Studebaker Center, LLC, the owner of certain improved real estate commonly known as 635 South Main Street in South Bend, St. Joseph County, Indiana, as more particularly described in Exhibit A attached hereto (the "Property"); and WHEREAS, the City desires to see the Property re -activated and the building located on the Property, commonly known as the Studebaker Administration Building (the "Building"), redeveloped, while retaining the architectural qualities and its status as a local historic landmark; and WHEREAS, the City and Developer are entering into a Development Agreement for the stabilization and rehabilitation of the Building; and WHEREAS, in connection with the Development Agreement and as an inducement to stabilize and develop the Property, Developer desires to enter into this Agreement, wherein the City (i) causes the identification and abatement of lead and/or asbestos materials that are present in, on or at the Property or Building, and (ii) cause abatement of all asbestos -containing materials associated with the Property and Building including removal and disposal in accordance with federal, state, and local rules and regulations, cause abatement of all lead paint conditions on the Property including removal and disposal in accordance with federal, state, and local rules and regulations, and cause any additional investigation or corrective action required to address contaminants, including but not limited to Hazardous Materials, that have been released onto the Property to ensure human health and the environment are protected as confirmed or certified in writing from the Indiana Department of Environmental Management under any applicable State of Indiana program, and such written confirmation shall include without limitation a `No Further Action Letter", "Certificate of Completion", or equivalent document and shall cover the Property and Building, and all investigation or corrective action activities shall be completed in accordance with all federal, state, and local rules and regulations (collectively, "Abatement"); and WHEREAS, the Parties wish to memorialize herein the terms and conditions under which they agree to participate in this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the Parties agree as follows: Page 1 1. Recitals. The Parties hereby incorporate the above Recitals into this Agreement as if fully set forth herein. 2. Environmental Conditions. The Parties acknowledge that there may be lead or asbestos containing materials or lead paint conditions or contaminants, including but not limited to Hazardous Materials, that have been released onto, at, on or in the Property or Building which may be in excess of the Indiana Department of Environmental Management's ("IDEM") clean- up criteria or screening levels and that the City has agreed to expend funds to identify and abate such lead or asbestos containing materials or lead paint conditions or contaminants that have been released onto, in, on or at the Property or Building (collectively, "Environmental Conditions"). 3. Indemnification. Subject to the terms of this Agreement, the City agrees to release, indemnify and hold harmless Developer, including any of its members, managers, directors, officers, agents, and employees (collectively, the "Indemnitees"), against and with respect to any and all damages, claims, losses, liabilities and expenses, including without limitation legal fees and environmental consulting or sampling fees or expenses, excluding internal management, administrative or overhead costs (the `Environmental Costs"), which may be imposed upon, incurred by or asserted against Developer arising out of, in connection with or relating to the Environmental Conditions set forth in Paragraph 2 above, or any other Hazardous Materials, known or unknown, that exist in the Building or at the Property as of the date of this Agreement. to: 4. Hazardous Materials Defined. As used herein, "Hazardous Materials" shall refer a. Any "hazardous waste" as defined by the Resource Conservation and Recovery Act of 1976 ("RCRA"), as amended from time to time, and regulations promulgated thereunder; b. Any "hazardous substance" as defined by CERCLA, as ainended from time to time, and regulations promulgated thereunder; c. Any oil, hydrocarbon, petroleum, and related compounds; d. Any substance that is a pollutant or contaminant or is toxic, ignitable, reactive, or corrosive that is regulated by the City, St. Joseph County, the State of Indiana, or the United States of America; e. Any dry cleaning, laundry, or similar cleaning chemicals, solvents, fluids, or compounds; f. Any and all material or substances that are defined as "hazardous waste," "extremely hazardous waste," or a "hazardous substance" pursuant to the applicable state, federal, or local governmental law, including asbestos and polychlorinated biphenyls; and g. Any other matter or material that is a pollutant or contaminant as determined by any governmental authority applicable to the Property. 5. Claims. The Indemnitees shall give the City prompt written notice of any claim asserted against one or more Indemnitees including, but not limited to, any notice of claim, demand, action, controversy, or suit which may give rise to a claim of indemnification under this Agreement. If the claim is covered by the Indemnity, the City shall undertake the defense of such Page 2 claim by counsel of its choosing at its sole cost and expense. The Indemnitees shall give the City and its counsel reasonable assistance and cooperation with respect to such defense. The City shall not be obligated to pay any legal or defense costs for claims not covered by the Indemnity. If investigative, abatement, or remedial work is required to resolve any claim covered by the Indemnity, then the City shall have the right to select the environmental consultant and shall pay for such work at its sole cost and expense. The City shall not be obligated to pay any costs for investigative, abatement, or remedial work not covered by the Indemnity. If the City, within thirty (30) days after notice of any claim covered by the Indemnity, fails to undertake defense, the Indemnitees shall have the right to undertake defense, including compromise or settlement thereof with counsel of their choosing, and to select an environmental consultant to perform environmental investigation and remediation work required to address such claim by an applicable government authority. The City shall be responsible for reimbursing the Indemnitees for these legal fees and costs. The City shall retain the right to assume such defense and environmental work, with legal counsel and an environmental contractor of its choosing. 6. Termination of Indemnity. The Indemnity set forth in Paragraph 3 above shall automatically terminate as to matters arising after the date of such termination (but not to matters arising prior thereto) on the earlier of: a. With regard to Environmental Conditions, the date that is seven and one half (7.5) years from the date of this Agreement; or b. The date that Developer, its successors or assigns, is deemed to be in non- compliance with its obligations under the Development Agreement with regard to Developer's Private Investment in the Property, and such non-compliance continues for more than 90 days after written notice to Developer from City advising of same. In determining non-compliance, the following calculation shall apply and control: For every One Dollar ($1.00) actually expended by the City to complete the Abatement, Developer shall expend Four Dollars ($4.00) in improvements to stabilize and rehabilitate the Building or Property. c. With regard to any other Hazardous Materials, the date that is fifteen (15) years from the date of this Agreement; or d. The date on which the City receives a Certificate of Completion or such other written confirmation or certification from IDEM under any applicable State of Indiana program, including without limitation a "no further action" letter that covers the Property. 7. Abatement. Subject to the terms of this Agreement, the City shall promptly perform the environmental investigations and corrective actions necessary to complete the Abatement. 8. Access. Developer grants the City and its agents and contractors reasonable access to and use of the Building and the Property to enable the City and its agents and contractors to obtain reasonable and necessary data and to implement any Abatement that the Page 3 City is required to perform under this Agreement. This license to access the Property and the Building shall continue for as long as is necessary to complete the Abatement. The City will provide Developer with reasonable prior notice of any required access to the Building and the Property. 9. Exposure Controls. Developer acknowledges that in the City's performance of any Abatement required under this Agreement, the City may propose applying corrective action standards (including, without limitation, risk -based corrective action standards) and/or the use of exposure controls, which are predicated on the assumptions that (i) the Property will be used for commercial and residential purposes, and (ii) no water wells used to supply water for human consumption, farming, or irrigation will be installed or used on the Property. Subject to the foregoing, Developer acknowledges and agrees to accept any such real property covenants, restrictions, or environmental notices that are required or permitted by IDEM or any other applicable governmental authority as part of a particular remediation plan to address Hazardous Materials contamination (collectively, a "Restrictive Covenant"). The parties agree that such Restrictive Covenant shall be set forth in an appropriate instrument approved by IDEM or other applicable governmental authority to be recorded in public records as part of any remediation plan that the City formally proposes to address Hazardous Materials at the Property. 10. Assignment of Agreement. This Agreement may not be assigned by either Party except with the prior written consent of the other Party, which consent shall not be unreasonably withheld. 11. No Third Party Benefit. This Agreement is not intended to inure to the benefit of any third party, against whom the Parties reserve any and all rights, claims and defenses. 12. Notices. All notices to be given under this Agreement shall be in writing and shall be deemed to have been given and served when delivered in person, by Federal Express, UPS or similar overnight carrier, or by depositing in the United States mail, postage pre -paid to the address set forth below or such other address as either party may have last specified by written notice to the other: If to the City: South Bend Department of Community Investment c/o Executive Director 1400 County -City Building 227 W. Jefferson Blvd. South Bend, Indiana 46601 With a copy to: City of South Bend Corporation Counsel 1200 County -City Building 227 W. Jefferson Blvd. Page 4 South Bend, Indiana 46601 If to Developer: Studebaker Admin QOZB, LLC Attn: Kevin M. Smith, Member 506 W South St, Suite 210 South Bend, IN 46601 With copies to: Mitchel Dick McNelis, LLC Attn: Michael T. McNelis 9247 N Meridian Street Suite 350 Indianapolis, IN 46260 and IQI Balanced Intelligence, LLC Attn: Contract Manager 506 W South Street, Suite 210 South Bend, IN 46601 Email: j.nagy@globalaccesspoint.com 13. Multiple Counte arts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original with counterparts signed by one party when combined with counterparts signed by other parties to this Agreement constituting an original contract. 14. 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. 15. 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. 16. Paragraph Headings. This Agreement shall be construed without reference to paragraph headings which are inserted only for convenience of reference. 17. Governing I.aw. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana without regard to its conflicts of laws principles. Page 5 18. Entire A ement. This Agreement and the Development Agreement contain the entire agreement of the parties relating to environmental investigation, abatement, and indemnification for the Property and supersedes all prior oral or written tiliderstandings, agreements or contracts, formal or informal, between the parties hereto pertaill Mg to said subject. 19. Controlling Effect of This Agreement. To the extent that any provision in this Agreement conflicts with any provision in the Development Agreement and such conflict cannot be resolved by a consistent interpretation of the terms and conditions, this Agreement shall control, provided, however, that such interpretation shall not modify or change the rights and obligations of the parties contained in the Development Agreement. [The remainder of this page intentionally left blank.] Page 6 IN WITNESS WHEREOF, the undersigned executed and delivered this Environmental Indemnity, Abatement and Access Agreement on the date set forth below the name of each. CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Elizabeth A. Maradik, President Gary A. Gilot, Member Murray L. Miller, Member SOUTH BEND REDEVELOPMENT CONVEWSSION Tro Warn , President ATTEST:! Vivian G. SaIlie, Secretary STUDEBAKER ADMIN QOZB, LLC ,x Kevin M. Smith, 40er Page 7 ��2— 7Tt Joseph R. Molnar, Vice President Breana Micou, Member Attest: Theresa M. Heffner, Clerk Date: Ianuary 9, 2025 Date:�I 2rZ, 12,0 Date: 7/23/2024 EXHIBIT A Description of Property Key No. 018-3018-0652 - South Bend Portage (Pt. Parcel I) State Id No. 71-08-12-309-001.000-026 Key No. 018-3018-0653 - South BendPortage (Pt. Parcel I) State Id No. 71-08-12-309-002.000-026 Key No. 018-3018-0657 - South Bend Portage (Pt. Parcel II) State Id No. 71-08-12-309-003.000-026 Key No. 018-3018-0658 - South Bend Portage (Pt. Parcel II) State Id No. 71-08-12-309-004.000-026 Key No. 018-3018-0659 - South Bend Portage (Pt. Parcel II) State Id No. 71-08-12-309-005.000-026 Key No. 018-3018-0687 - South Bend Portage (Parcel III) State Id No. 71-08-12-352-001.000-026 Key No. 018-3018-0672 - South Bend Portage (Pt. Parcel IV) State Id No. 71-08-12-356-001.000-026 Key No. 018-3018-0673 - South Bend Portage (Pt. Parcel IV) State Id No. 71-08-12-356-003.000-026 Parcel I: A parcel located in the Southwest Quarter of Section 12, Township 37 North, Range 2 East, City of South Bend, Portage Township, St. Joseph County, Indiana, and being Lots 28 and part of Lot 29 of the recorded Plat of Martin & Tutt's Addition to the Town, now City of South Bend. Being more particularly described as beginning at the Northwest corner of said Lot 28; thence North 89°32'54" East along the South right-of-way line of South street, a distance of 165.72 feet (rec. 165.00 feet) to a point on the West right- of-way line of a 14.00 foot public alley; thence South 00°42'03" East along said West right- of-way line, a distance of 132.19 feet (rec. 132.00 feet) to a point on the Northerly right-of- way of the New York Central Railroad; thence North 83°48'50" West along said Northerly right -of- way line, a distance of 166.75 feet (rec. 167.00 feet) to a point on the East right- of-way line of Lafayette Blvd.; thence North 00°47'19" West along said East right-of-way line, a distance of 112.92 feet (rec. 112.80 feet) to the point of beginning. Containing 0.47 acres more or less. Subject to all legal rights -of -way, easements and restrictions of record. Parcel II: A parcel located in the Southwest Quarter of Section 12, Township 37 North, Range 2 East, City of South Bend, Portage Township, St. Joseph County, Indiana, and being Lots 19 and 20 of the recorded plat of Martin & Tutt's Addition to the Town, now City of South Bend. Being more particularly described as beginning at the Northwest comer of said Lot 19; thence North 89°32'54" East along the South right-of-way line of South street, a distance of 165.72 feet (rec. 165.00 feet) to a point on the West right-of-way line of Main Street; thence South 00°36'48" East along said West right-of-way line, a distance of 132.24 feet to a point on the North right-of-way line of the New York Central Railroad; thence South 89°33'50" West along said North line, a distance of 165.51 feet (165.00 feet) to a point on the East right-of-way line of a 14.00 feet public alley; thence North 00°42'03" West along said West right-of-way line, a distance of 132.20 feet to the point of beginning. Containing 0.50 acres more or less. Subject to all legal rights -of- way, easements, and restrictions of record. Parcel III: A parcel located in the Southwest Quarter of Section 12, Township 37 North, Range 2 East, City of South Bend, Portage Township, St. Joseph County, Indiana, being tract number 1 as shown upon the recorded Plat of the Studebaker Corporation Replat, dated January 13, 1925 and recorded in the Recorder's Office of St. Joseph County, Indiana, Plat Book 11, pages 184 to 187 inclusive, and being more particularly described as: Beginning at the Southwest comer of said tract number 1; thence North 00°47'19" West along the West right-of-way line of Lafayette Blvd., a distance of 132.38 feet (rec. 132.24 feet) to a point on the Southerly right-of-way line of the New York Central Railroad; thence South 84°58'56" East along said Southerly right-of-way line, a distance of 346.25 feet (rec. 345.86 feet) to a point on the West right-of-way line of Main Street; thence South 00°36'48" East along said West right-of-way line, a distance of 99.68 feet (rec. 99.50 feet); to a point on the North right-of-way line of Bronson Street; thence South 89°35'56" West along said North right-of-way line, a distance of 344.18 feet (rec. 344.60 feet) to the point of beginning. Containing 0.92 acres more or less. Subject to all legal rights -of -way, easements, and restrictions of record. Parcel IV: A parcel located in the Southwest Quarter of Section 12, Township 37 North, Range 2 East, City of South Bend, Portage Township, St. Joseph County, Indiana, and being part of Lots 16 and 17 of the recorded plat of Martin & Tutt's Addition to the Town, now City of South Bend. Being more particularly described as beginning at the Northwest comer of said Lot 16; thence North 89°35'56" East along the South right-of-way line of Bronson Street, a distance of 124.79 feet (rec. 125.00 feet); thence South 00°30'00" East, a distance of 68.40 feet (rec. 68.00 feet); thence North 89°37' 11" East, a distance of 39.98 feet (rec. 40.00 feet) to the West right-of-way line of a 14.00 foot public ally; thence South 00°32'41" East along said West right-of-way line, a distance of 55.37 feet (rec. 55.00 feet); thence South 89°38'26" West, a distance of 164.86 feet (rec. 165.00 feet) to a point on the East right-of-way line of Main Street; thence North 00°28'41" West along said East right- of-way line, a distance of 123.66 feet (rec. 123.00 feet) to the point of beginning. Containing 0.41 acres more or less. Subject to all legal rights -of -way, easement, and restrictions of record. Property Address Reference: 635 South Main Street, South Bend, IN 46614 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 1 /7/2025 Name Joseph Molnar Department DCI BPW Date 1/14/25 Phone Extension 6022 Review and Approval Required Prior to Submittal to Board Diversity Compliance ❑ Officer Name and Inclusion Officer BPW Attorney ❑ Attorney Name Dept. Attorney ® Attorney Name Danielle Campbell Weiss Purchasing ❑ Check the Appropriate Item Type — Required. for All Submissions Professional Services Agreement ❑ Contract ❑ Proposal ❑ Open Market Contract ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Reject Bids/Quotes ❑ Proposal Opening ❑ C/O & PCA No. ❑ PCA ❑ Chg. Order, No. ❑ Traffic Control ❑ Resolution ® Other: Approval of Access ❑ Ease./Encroach Agreement Required Information Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Redevelopment Commission, Studebaker Admin QOZB ❑ Yes ❑ If Yes, Approved by Purchasing ❑ No E] MBE ❑ WBE Completed E-Verify Form Attached ❑❑ Nos Environmental Abatement and Access Agreement Purpose/Description The Redevelopment Commission and Studebaker Admin QOZB have come t( an agreement on a renovation/stabilization plan of the former Studebaker Admin Building. This agreement gives the BPW access to the building for the abatement of environmental concerns within the building. INN For Change Orders Only Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount $ Increase % Current Percent of Change: Decrease ( %) New Amount $ Increase % Total Percent of Change: Decrease ( %) Time Extension Amount: New Completion Date: