HomeMy WebLinkAbout5A1 First Amendment to Economic Development Agreement (J.C. Hart Co.) - Fully ExecutedFIRST AMENDMENT TO
ECONOMIC DEVELOPMENT AGREEMENT
This FIRST AMENDMENT TO ECONOMIC DEVELOPMENT AGREEMENT (this
"First Amendment"), is made effective as of the 13th day of March, 2025, by and among the CITY
OF SOUTH BEND, INDIANA, a political subdivision and municipal corporation of the State of
Indiana (the "City"), the CITY OF SOUTH BEND DEPARTMENT OF REDEVELOPMENT
acting by and through its governing body, the SOUTH BEND REDEVELOPMENT
COMMISSION (the "Redevelopment Commission" and together with the City, the "City
Bodies"), and J.C. HART COMPANY, INC., an Indiana corporation ("Developer").
RECITALS:
A. The City Bodies and Developer are parties to a certain Economic Development
Agreement dated as of January 9, 2025 (the "Original Agreement").
B. The City Bodies and Developer desire to modify and amend the terms of the
Original Agreement to clarify the scope of the City Bodies' obligations with respect to the
construction of supporting public infrastructure and the relocation of utilities, all as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Incolporation of Recitals- Definitions. The foregoing recitals are incorporated
herein. Capitalized terms not otherwise defined herein shall have the meanings given such terms
in the Original Agreement.
2. Supporting Public Infrastructure. The City Bodies and Developer agree that
Exhibit H to the Original Agreement is hereby deleted in its entirety and replaced with Exhibit H
and Exhibit H-1 attached hereto and that Section 5.02 of the Original Agreement is hereby deleted
in its entirety and replaced with the following:
5.02 Sunoorting Public Infrastructure. The City Bodies shall cause the construction of
public infrastructure improvements to support the Project, including streets, sidewalks and
utilities as described at Exhibit H (the "Work"), which shall be funded either by READI
2.0 funding or alternatively from TIF Revenues available to the Redevelopment
Commission from Allocation No. 1. The Work shall consist of Roadway and Infrastructure
Improvements (as defined in Section 1 of Exhibit H), Utility Relocations (as defined in
Section 2 of Exhibit H) and Easement Releases (as defined in Section 3 of Exhibit H). The
City Bodies shall cause the Work to be performed in accordance with the following
requirements:
(a) Construction Standards. The City Bodies shall cause the Work to be performed
and completed: (i) in a good and workmanlike manner, in compliance with this
Agreement and all federal, state and local laws, ordinances, regulations, rules
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and statutes and all other governmental agencies having or exercising
jurisdiction over the Project; and (ii) free and clear of mechanics' liens or any
other liens against the Project Site. The City Bodies shall give Developer
immediate notice of any such lien filed against the Project Site and shall
immediately cause any such lien to be discharged and removed of record.
(b) Coordination of Work. The City Bodies and Developer shall work in good faith
to coordinate the construction of the Work by the City Bodies and their
contractors, subcontractors, materialmen, agents, employees and invitees
(collectively, the "City Contractor Parties") and the Project by Developer so as
to minimize any interference with the construction and operation of the Project.
Such coordination shall include, but not be limited to, (i) holding periodic
meetings between the City Bodies, the City Contractor Parties and Developer;
(ii) coordinating access, storage, parking areas and deliveries; and (ill)
developing work schedules to minimize the disruptive effect of construction
activities relating to the Work. The City Bodies shall not unreasonably delay or
interfere with the development of the Project. The City Bodies, at their cost,
shall be responsible for securing the required permits, fees and inspections
required to properly execute and complete the Work.
(c) License. Developer agrees that, following Developer's acquisition of the
Project Site and during the term of this Agreement, the City Bodies and the City
Contractor Parties shall have a non-exclusive, temporary license during normal
business hours and at such other times as the City Bodies may reasonably
request, to access and use portions of the Project Site in connection with the
construction of the Work on the terms and conditions set forth in this
Agreement. The foregoing license shall terminate upon the earlier of (i)
completion of the Work, or (ii) written notice by Developer to the City Bodies.
(d) Safety and Sec urit . The City Bodies shall cause the City Contractor Parties to
take reasonable precautions for the safety of, and shall provide reasonable
protections to prevent damage and injury or loss to, (i) employees and other
personnel of Developer and other persons performing work on the Project, who
may be affected by work relating to the construction of the Work; and (ii) work,
materials and equipment of Developer relating to the Project. The City Bodies
shall cause the City Contractor Parties to comply with applicable laws,
ordinances, rules, regulations and lawful orders of public authorities bearing on
the health and safety of persons or property or their protection from damage or
injury or loss, including, but not limited to Occupational Safety and Health
Administration standards.
(e) Site Maintenance. The City Bodies shall cause the City Contractor Parties to
maintain all staging areas for the Work on the Project Site in neat and orderly
fashion. During the term of this Agreement, the City Bodies shall refrain from,
and shall cause the City Contractor Parties to refrain from, depositing or
discarding waste materials or other debris on or near the Project Site. In the
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event the City Bodies or any of the City Contractor Parties deposits or discards
waste materials or debris on or near the Project Site, the City Bodies shall, at
their expense, immediately remove such waste materials or debris and restore
any damage to the affected area.
(f) Completion. The City Bodies shall inspect the Work to ensure all aspects meet
City of South Bend Construction Standards and Specifications (the "City
Standards"). Developer, at its expense, shall also be entitled to schedule and
complete an inspection of each completed component of the Work. The City
Bodies and its contractors shall be entitled to participate in the inspection. If
the Developer believes the inspection reveals any component of the Work does
not adhere to City Standards, Developer may prepare, or cause to be prepared a
punch list of such deficiencies, and the Developer and the City Bodies shall
promptly work together in good faith to identify a plan to remedy the
deficiencies.
(g) Insurance. The Parties acknowledge that the City Bodies are self -insured for
general liability risk. Notwithstanding anything in this Agreement to the
contrary, the City Bodies do not waive any governmental immunity or liability
limitations available to them under Indiana law. Additionally, the City Bodies
will require that any contractor who receives an award of contract directly from
the City of South Bend to perform any Work contemplated under this
Agreement shall meet the following insurance requirements:
(i) All Contractors and subcontractors doing business with the City of South
Bend shall present a Certificate of Insurance showing coverage in the
following minimum amount:
1. General Liability: Premises -Completed Operations or Products,
Bodily Injury and Property Damage Combined Single Limit -
$5,000,000.
2. There shall be no exclusion for explosion, collapse or
underground hazard.
3. Workmen's Compensation: Statutory State of Indiana
Employer's Liability - $100,000.
4. Auto Liability: Bodily Injury and Property Damage Combined
Single limit - $1,000,000
(ii) City of South Bend shall be named as additional insured on the
Certificate of Insurance.
(iii)Contractor and subcontractors shall provide any and all insurance
policies, documents, endorsements, or certificates related to this
Contract immediately upon the request of the City of South Bend.
(h) Indemnity. The City Bodies shall indemnify, defend, protect, and hold
Developer, its agents, directors, employees, managers, members, officers,
partners and lenders and their respective assigns and successors (each, a
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"Developer Party" and, collectively, "Developer Parties") harmless from any
and all claims, damages, demand, liabilities, liens, losses, or costs and expenses
of any kind, including, without limitation, reasonable attorneys' fees, arising
out of, resulting from or related to the Work (except in each case to the extent
the caused by the negligence or misconduct of Developer or a Developer Party).
(i) Damage to Protect Site or Project. If any Work conducted by or on behalf of
the City Bodies causes damage to any portion of the Project Site or the Project,
upon notice from Developer identifying such damages and demanding that such
damage be repaired, the City Bodies shall, within a reasonable timeframe as
agreed to by the Parties, repair such damage at the City Bodies' expense. If the
City Bodies fail to repair such damage within the agreed timeframe, then
Developer may, but shall not be obligated to, complete the necessary repairs, in
which case the City Bodies shall reimburse Developer all costs incurred by
Developer to complete the repairs upon thirty (30) days written demand
accompanied by reasonable evidence of such costs.
(j) Survival. The terms and provisions of this Section 5.02 shall survive any
termination of the Agreement.
3. Continuing Effect. Except as expressly set forth herein, the Agreement remains
unmodified and in full force and effect. To the extent of any inconsistency between the terms and
provisions of this First Amendment and the Original Agreement, the terms and provisions of this
First Amendment shall control.
4. Miscellaneous. This First Amendment may be executed in multiple counterparts,
each of which shall be deemed an original, but together shall constitute one and the same
instrument. Each party has the right to rely upon a facsimile or e-mail counterpart of this First
Amendment signed by the other party to the same extent as if such party received an original
counterpart. This First Amendment shall extend to, be binding upon and inure to the benefit of
the respective heirs, devisees, legal representatives, successors, permitted assigns and beneficiaries
of the parties hereto.
[SIGNATURES ON THE FOLLOWING PAGE(S)]
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Docusign Envelope ID: 623DO155-E918-4OB1-8AEB-9679DDE4FO17
IN WITNESS WHEREOF, the City Bodies and Developer have executed this First
Amendment to be effective as of the date set forth above.
CITY:
REDEVELOPMENT COMMISSION:
ATTEST:
M
Printed: Eli Wax
Title: Secrets
DEVELOPER:
CITY OF SOUTH BEND, INDIANA
By.
Imes Mueller, Mayor
SOUTH BEND REDEVELOPMENT
COMMISSION
By:
Printed: Trov Warner
Title: President
J.C. HART COMPANY, INC.,
an Indiana corporation
By:
John C. Hart, Jr., Chairman
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EXHIBIT H
Work
The City Bodies shall undertake the construction of public infrastructure improvements to support
the Project and which are necessary to re-establish a street grid and utility network at the Project
Site. The Work shall include the following:
Section l: Roadway and Infrastructure Improvements.
The City Bodies shall cause the construction of new streets, water main, sanitary sewer main, and
storm sewer, curbs, sidewalks, crosswalks, accessibility ramps, street landscaping, street lighting,
and street trees, as generally depicted in the infrastructure plan attached hereto as Exhibit H-1 and
in accordance with the City Bodies' design, as well as any other infrastructure improvements
agreed to by the parties (the "Roadway and Infrastructure Improvements").
Section 2: Utili1y Relocations.
The City Bodies shall cause the relocation of all utility lines and facilities located on the Project
Site so that such utility lines and facilities do not in any way interfere with the construction or
operation of the proposed Project improvements depicted in Exhibit H-1 (the Utility Relocations").
The Utility Relocations shall include, without limitation, relocation of storm sewer, water, sanitary
sewer, electric, fiber optic, telephone/communications and gas such that no utility lines or facilities
are located under Project building improvements. All relocated utility lines and facilities on the
Project Site shall be in locations approved by Developer and the City.
Section 3: Easement Releases.
In connection with the Utility Relocations, the City Bodies shall obtain and record, on terms and
conditions reasonably satisfactory to Developer, releases by all benefited utilities of all utility
easements encumbering the Project Site, whether arising via plat, separate recorded instrument or
otherwise, including, without limitation, releases of the following easements:
• Easements rights created in connection with the vacation of rights -of -way shown as a part
of the Original Plat of South Bend Indiana as it relates to the Project Site;
• Easements rights created in connection with the Plat of River Bend Addition to the City of
South Bend, St. Joseph County, Indiana (Plat Record 197719, Book 31, Page(s) R-7) as it
relates to the Project Site;
• Easement rights created in connection with the vacation of rights -of -way pursuant to
Ordinance 9202-01 and shown on that certain Crowe Chizek Minor Subdivision recorded
as Instrument No. 0315444;
• Easement Rights created in connection with the Crowe Chizek Minor Subdivision recorded
as Instrument No. 0315444;
• Easement Rights created in connection with the Crowe Chizek Second Minor Subdivision
recorded as Instrument No. 2024-11404;
• Easement Rights created in connection with the Crowe Chizek Second Minor Subdivision
Lot Line Adjustment;
• Instrument No. 77089069 — American Electric Power.
Instrument No. 8217444 — City of South Bend and any other City departments.
Instrument No. 8217445 — City of South Bend and any other City departments.
To the extent utilities require replacement utility easements on the Project Site to accommodate
the Utility Relocations, the parties shall work cooperatively, reasonably, and in good faith, to grant
such easements; provided, however, in no event shall Developer be required to grant replacement
utility easements that in any way interfere with the construction or operation of the Project. The
City Bodies shall be solely responsible for securing necessary easements across, over, under or
through third party property to accommodate the Utility Relocations.
EXHIBIT H -1
Infrastructure Plan
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