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Investment
Memorandum
December 12, 2013
TO: South Bend Redevelopment Commission
FROM: David Relos, Economic Resources 04-
SUBJECT: DTSB Agreement for Services
Annually the Commission enters into an agreement with Downtown South Bend, Inc. (DTSB),
to provide an array of services to the downtown area. An example of DTSB's services are:
• Beautification Program (flowers, plants, mulch, soil, baskets, liners, snow removal)
• Streetscape Improvements (banners & flags, holiday decor, street furniture & art)
• Business recruitment/ retention (assistance, data base, research development)
The attached 2014 agreement is the same as the 2013 agreement, which last year was
expanded to include DTSB's responsibility of bicycle racks and the management of the
banner program. Fees for these services are $250,000, billed monthly based on services
provided.
DTSB's work in keeping the downtown area safe, clean, and beautiful is well documented,
and keeps the downtown experience pleasant and appealing.
Staff requests approval of the 2014 Agreement for Services with DTSB.
227 W. JEFFERSON BLVD. SOUTH BEND, IN 4bbU1 I r: D14- taD -a0f i I r— " - •-- -- I �- •••__.__....__ -
AGREEMENT FOR SERVICES
BY AND BETWEEN THE CITY OF SOUTH BEND, DEPARTMENT
OF REDEVELOPMENT, ACTING BY AND THROUGH THE
SOUTH BEND REDEVELOPMENT COMMISSION
AND DOWNTOWN SOUTH BEND, INC.
THIS AGREEMENT FOR SERVICES (the or this "Agreement ") is
made effective the day of , 2013, by and between the City of South
Bend, Department of Redevelopment, Acting By and Through the South Bend
Redevelopment Commission, having its offices at 1400 County -City Building, 227 West
Jefferson, South Bend, Indiana 46601 (the "Commission ") and DOWNTOWN SOUTH
BEND, INC., a not - for -profit domestic corporation organized under the laws of the State
of Indiana ( "DTSB" or the "Provider "), and having its principal place of business at
South Bend, Indiana.
WITNESSETH:
WHEREAS, the Commission is the governing body of the City of South Bend
Department of Redevelopment (the "Department ") and exists and operates under the
provisions of I.C. 36 -7 -14, commonly known as the "Redevelopment of Cities and
Towns Act of 1953 ", as amended from time to time (the "Act "); and
WHEREAS, pursuant to the Act, the Commission has the power and duty to
investigate, study, and survey areas within the corporate boundaries of the City of South
Bend (the "City ") that the Commission has determined to be in need of redevelopment
within the meaning of the Act and to redevelop said areas in a manner that will promote
land use in order to serve the best interests of the City and its inhabitants; and
WHEREAS, under the authority of I.C. 36 -7 -14, the Commission has adopted its
Resolution No. 737 declaring the South Bend Central Development Area (the "Area ") to
be an area in need of redevelopment within the meaning of the Act and has adopted the
South Bend Central Development Area Development Plan (the "Development Plan ") in
order to facilitate redevelopment of the Area; and
WHEREAS, the Commission desires to undertake certain actions and promote
certain activities within the Area that are necessary to carry out the Development Plan for
the Area and facilitate development of the Area (the "Project "); and
WHEREAS, DTSB is a not - for -profit domestic corporation created to promote
community development within the City of South Bend, Indiana and has knowledge,
experience and expertise in property acquisition and development; and
WHEREAS, the Commission has determined that due to DTSB's knowledge,
experience and expertise, it is in the best interests of the Commission to retain DTSB's
services to assist the Commission in accomplishing the Project; and
WHEREAS, DTSB is willing to assist the Commission in its efforts by providing
the Requested Services which are more specifically described below and in EXHIBIT
"A" and are subject to the terms and conditions of this Agreement; and
WHEREAS, the Commission has appropriated funds for the Project in the
amount of Two Hundred Fifty Thousand Dollars ($250,000), including funds for the
Requested Services, as required by Indiana Code § 5- 22 -17 -3; and
WHEREAS, the Provider has provided management services to the Commission
for certain parking lots as further described herein, and the Commission intends to retain
such services of the Provider and share the revenues from the parking lots as described in
this Agreement.
NOW, THEREFORE, it is agreed between the parties as follows:
SECTION 1. Definitions. For purposes of this Agreement, the following
terms have the meanings referred to in this Section:
City Controller: The term "City Controller" shall mean the City Controller
or Acting City Controller appointed pursuant to Indiana
Code § 36- 4-9-6.
City's Internal
Auditor: The term "City's Internal Auditor" shall mean the City
Controller or any person appointed or retained by the City
Controller or the Commission for the purpose of auditing
the Provider for this Agreement or other agreements of the
City.
Commission: The term "Commission" shall mean the South Bend
Redevelopment Commission, the governing body of the
City of South Bend Department of Redevelopment
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Competitive Bidding
Requirements: Indiana Code § 36 -1 -12 with respect to contracts for
construction, reconstruction, alteration, repair or renovation
of a structure or improvement, and Indiana Code § 5 -22
and Common Council Resolution 2690 -98 with regard to
other transactions.
Contract
Administrator: The term "Contract Administrator" shall mean Brock Zeeb,
Director of Economic Resources for the Department of
Community Investment.
DTSB: The term "DTSB" shall mean Downtown South Bend, Inc.,
a not - for -profit corporation organized under the laws of the
State of Indiana and having its offices in South Bend,
Indiana.
Effective Date: The term "Effective Date" shall have the meaning ascribed
to such term in the opening paragraph of this Agreement.
Expiration Date: The term "Expiration Date" shall mean December 31,
2014.
Parking Lots: Parking Lot owned by Commission at Main Street and
Western Avenue; Parking Lot owned by Commission at the
LaSalle Hotel, legally described as Lots Numbered Two
and Three as Lots are known and designated in the
Recorded Plat of the Original Plat of the Town, now City of
South Bend, in the Office of the Recorder of St. Joseph
County, Indiana, Tax Key Numbers 18- 1002 -41 and 18-
1002-42; and Parking Lot owned by Commission next to
the St. Joseph County Public Library with Tax Key
Numbers 18- 3008 -0279, 18- 3008 -0280, 18- 3008 -0281, 18-
3008 -0282 and 18- 3008 - 028301
Requested Services: The term "Requested Services" shall mean the services
described at EXHIBIT "A" as well as other related
expertise and assistance rendered to the Commission by the
Provider including management of the Parking Lots as
further described in EXHIBIT "A-1".
Taxes: All governmental assessments, franchise fees, excises,
license and permit fees, levies, charges and taxes, of every
kind and nature whatsoever, which at any time during the
Term may be assessed, levied, or imposed on, or become
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due and payable out of or in respect of, (i) activities
conducted on behalf of the Commission.
SECTION 2. Retention and Acceptance of Provider, Schedule
of Services.
A. The Commission hereby retains the Provider to provide to the
Commission the Requested Services that are more specifically described at EXHIBIT
"A" attached hereto and incorporated herein. The Provider hereby accepts the
appointment to provide the Requested Services to the Commission and agrees to provide
the Requested Services under the terms and conditions set forth in this Agreement.
B. Upon receipt of a notice to proceed from the Contract Administrator, the
Provider shall commence the Requested Services in accordance with the terms and
conditions of this Agreement including, but not limited to, the procedures prescribed by
Indiana Code § 36 -7 -14, et seq. and the schedule established for the Project (the "Project
Schedule ") or as otherwise mutually agreed by the parties in writing. The Project
Schedule is more particularly described at EXHIBIT `B" attached hereto and
incorporated herein. The Provider hereby certifies that it has sufficient experience,
expertise and financial aptitude to complete the Requested Services in the manner and
within the timeframe set forth in the Project Schedule.
C. Should the Provider fail to complete the Requested Services in accordance
with the terms and conditions of this Agreement including, but not limited to, in
accordance with the Project Schedule, the Contract Administrator may withhold
payments due the Provider. Further, if any damages are imposed against the Provider,
any monies due and payable to the City thereby, may be retained out of any monies
earned by the Provider under the terms of this Agreement. An extension of time may be
granted in the event of extenuating circumstances by the Provider applying for and
receiving written permission for an extension of time from the Commission.
SECTION 3. Parties' Responsibilities.
A. Information and Communications. The Commission shall provide all
maps, reports, and other data requested by the Provider necessary for the Provider to
accomplish the Requested Services. The Commission and the Provider agree that the
Commission shall be permitted to obtain at no additional cost and to retain any and all
documents prepared or caused to be prepared by the Provider in connection with the
services to be provided by the Provider and the Provider agrees to provide the
Commission with said documents upon request by the Commission. Said documents
may be used by the City or others with respect to the Commission's undertakings with
respect to the Project.
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B. Reports and Budgets. The Provider agrees to provide the Contract
Administrator and the Internal Auditor with a report regarding the performance of the
Requested Services and the status of the Project in relation thereto, at least every thirty
(30) days following the Effective Date of this Agreement or upon the written request of
the Contract Administrator or the Internal Auditor. The report must describe the
Provider's progress in completing the Requested Services.
C. Protect Budget. In exchange for the consideration set forth herein, the
Provider hereby agrees to abide by the Project Budget set forth in APPENDIX "A" TO
EXHIBIT "B" to this Agreement in delivering the Requested Services (the "Project
Budget ").
D. Final Report. The Provider shall provide to the Commission a final report
within thirty (30) days of the Termination Date of this Agreement summarizing the
successes or failures of this engagement and the Provider's delivery of the Requested
Services in addition to a final accounting of all revenues and expenditures as described
above.
E. Records. The Provider agrees to keep and maintain, for a period of not
less than two (2) years after the termination of this Agreement, at its business office,
separate and independent records, reasonably satisfactory to the Internal Auditor and in
compliance with Indiana law, consistent with generally accepted accounting principles.
F. Point of Contact. The Commission hereby designates Brock Zeeb (the
"Contract Administrator ") as the Provider's point of contact with the Commission for
purposes of this Agreement. The Contract Administrator shall be responsible for the
provision of information to the Provider under this Agreement.
G. AuditinZ Requirements. The Provider agrees to make all information
available to the Internal Auditor or any other entity as required by Indiana law. The
Provider understands and acknowledges that the City's Internal Auditor may perform, at
any reasonable time and for a period extending to two (2) years after the termination of
this Agreement, a review of outstanding and completed contracts for compliance with
contract provisions and hereby agrees to provide the City's Internal Auditor prompt
access to all information and documents (whether electronic or otherwise) requested by
the City's Internal Auditor for the purposes of completing such audit, which such access
must be provided at least during normal business hours. Further, the Provider shall
permit the City's Internal Auditor to audit, examine and make excerpts of transcripts
from such records, and to make audits of all contracts, invoices, materials, payrolls,
records of personnel, conditions of employment and other data relating to all matters
covered by this Agreement. At regular intervals during the term of this Agreement, the
Commission may conduct reviews of the content and progress of the Requested Services.
H. Form 990. The Provider agrees to file its annual Form 990 required under
the Internal Revenue Code and its accompanying regulations promptly with the Internal
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Revenue Service and to submit a copy of said Form 990 (and all amendments thereto) to
the City's Internal Auditor within five (5) days of their filing.
I. Revision of Requested Services. If, as a result of any review hereunder, it
is the opinion of the Commission that revisions to the scope of the Requested Services
are necessary or the methods employed by the Provider are inappropriate, the
Commission may require such revisions to the scope or methods by notifying the
Provider in writing.
J. Additional Auditing Requirements for Not - For - Profit Organizations. The
Provider understands that not - for -profit entities receiving City of South Bend funds,
including funds received from the Commission, equal to or greater than $100,000.00 are
required to supply an independent audit. Audited financial reports must be provided to
the City's Internal Auditor on an annual basis, including any A -133 Audits. If the
Provider is required to submit an E -1 form to the Indiana State Board of Accounts, the
Provider shall also forward a copy of the E -1 to the City's Internal Auditor. The City
may also make an examination of the Provider's fidelity bonding and fiscal and
accounting procedures to determine whether these procedures meet the requirements of
this Agreement.
K. Competitive Bidding Requirements. To the extent funds provided to
DTSB are used for construction, reconstruction, alteration, repair or renovation of a
structure or improvement, Competitive Bidding Requirements shall be followed.
SECTION 4. Compensation.
A. Fees for Services. As compensation for services performed pursuant to
this agreement, the Commission agrees to pay the Provider a fee of Two Hundred Fifty
Thousand Dollars ($250,000) for services rendered, along with all reimbursable
expenses specifically agreed to in writing by the Provider and the Commission, but
excluding Parking Lot fees (the "Contract Amount ").
B. Shared Parking Lot Fees. As compensation for services provided in
managing the Parking Lots described in this Agreement, the Provider and the
Commission shall divide gross revenues generated from the use of the Parking Lots as
follows:
(i) 50% of gross revenues will be retained by the Provider as a management
fee;
(ii) 50% of gross revenues will be used to comply with the Provider's
obligations under paragraph 2 of EXHIBIT "A-]".
C. Invoices. The Provider shall submit an invoice for progress payments to
the Commission for services performed under this Agreement, which invoice shall
identify the project, the task, and a description of the services completed. Invoices shall
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be submitted within five (5) days of the preceding month for which services were
rendered. For example, the invoice seeking payment for services rendered in January,
2014, shall be submitted no later than February 5, 2014. In the event of termination of
this Agreement as provided in SECTION 6, all non - disputed sums owing and due the
Provider for services rendered shall be paid within fifteen (15) days of receipt of any
invoice.
D. Reimbursable Expenses. The Commission shall not reimburse the
Provider for expenses unless such expenses have been approved in writing by the City
Controller. Expenses which may be reimbursed under this provision shall be reasonable
and necessary, and shall relate to the functions and purposes of the Commission. All
claims for reimbursement of expenses shall be supported by a detailed itemization of the
expense including invoices or receipts with the nature of the claim incurred. All
disbursements to contractors must be pursuant to a written contract entered into in
accordance with this Agreement, which must be submitted with the claims to be eligible
for reimbursement. Payments made by the Provider that have not been approved by the
City Controller or do not have proper itemized documentation shall be deemed the
personal obligation of the Provider.
SECTION 5. Term.
The Term of this Agreement shall commence on the Effective Date, and shall
terminate on the earlier of the Expiration Date or Termination Date, as described at
SECTION 6, below. This Agreement shall be renewable on such terms and for such
periods as the Parties shall agree in writing. Notwithstanding the foregoing, this
Agreement is subject to annual appropriations of the Commission in accordance with
Indiana Code § 5- 22 -17 -3.
SECTION 6. Termination and Default.
A. Termination. This Agreement shall expire on the earlier of (i) the
Expiration Date without notice to either party; or (ii) within twenty (20) days of an
offending party's receipt of a Default Notice (as defined below) if such default or failure
continues and remains uncured as discussed in Section 6(B) below through no fault of the
party initiating the termination (the "Termination Date ").
Upon termination of this Agreement for any reason, copies of all data, electronic
files, documents, procedures, reports, estimates, summaries other work papers, and any
other supporting documents, whether completed or in process, accumulated by the
Provider or prepared or provided by the Commission or the Provider relating to this
Agreement or the Requested Services shall be and remain the property of the
Commission and be delivered to the Commission upon request in a usable form within
sixty (60) days of the Termination Date of this Agreement. The Commission shall retain
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or be granted by the Provider without restriction all title, ownership, or intellectual
property rights, including copyright, patent, trademark, and trade secret rights, in any data
gathered or generated by the Provider in performance of the Requested Services under
this Agreement.
B. De ault. Any failure by either party to perform any term or provision of
this Agreement, which failure continues uncured for a period of Twenty (20) Days
following written notice of such failure from the other party (the "Default Notice "),
unless such period is extended by written mutual consent, shall constitute a default under
this Agreement. Any Default 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. If the nature of the alleged failure is such that it
cannot reasonably be cured within such 20 -Day period, then the commencement of the
cure within such time period, and the diligent prosecution to completion of the cure
thereafter, shall be deemed to be a cure within such 20 -Day period. Upon the occurrence
of a default under this Agreement, the non - defaulting party may institute legal
proceedings to enforce the terms of this Agreement or, in the event of a material default,
terminate this Agreement. If the default is cured, then no default shall exist and the
noticing party shall take no further action.
C. Misrepresentations. Notwithstanding any other provision of this
Agreement to the contrary, if a party intentionally, knowingly or recklessly makes a false
written representation materially related to the provision of the Requested Services or the
obligations of said party under this Agreement, the other party may terminate the
agreement immediately upon delivery of a Default Notice:
D. Project Close -Out. In the event that the Provider expends funds or
perform services that are less than the Contract Amount or if the Project is canceled,
expired or terminated for any reasons, the Contract Amount not incurred or claimed by
the Provider shall be no longer available under this Agreement after all compensation
earned and reimbursable expenses incurred as of the date the Provider received written
notification of the cancellation or termination of the Project have been paid.
E. Reversion of Assets. At the conclusion, cancellation, assignment or
termination of this Agreement, the following assets shall revert to the Commission as
follows:
1. Any item of property placed in the City of South Bend right of way.
2. Items not in the City right of way with an initial acquisition cost of One
Thousand Dollars ($1,000) or more, and a depreciable life of two (2) years or
more.
SECTION 7. Confidentiality, Conflict of Interest and Disclosure.
A. Confidential Information. The Provider acknowledges that information
which the Commission regards as confidential or proprietary in nature (the
"Information "), may come to the knowledge of the Provider during the Provider's
performance of services. The Provider shall treat the Information as strictly confidential
and agrees that the Provider will not, at any time or in any manner, either directly or
indirectly, (i) use, or allowed to be used, any Information for the Provider's own benefit
or the benefit of any director, official, employee or agent or any third party, or (ii)
divulge, disclose or communicate in any manner any Information to any third party
without the written consent of the Commission. The Provider shall be responsible for
maintaining the confidentially of any Information in its possession, including taking
appropriate measures to secure said Information against such uses and dissemination and
to inform any person to which it allows to access such information of its confidentiality.
The Provider shall be responsible for any actions taken by those individuals or
organizations who or which receive or obtain such Information from the Provider. A
violation of this SECTION 7 shall be deemed to be a material breach of this Agreement.
B. Covenant Survive Agreement. The confidentiality provisions of this
Agreement remain in full force and effect after, and survive the termination of this
Agreement.
C. Conflict of Interest. The Provider hereby certifies and agrees that no
member, officer, or employee of the Commission, or its designees or agents, (and no one
with whom they have family or business ties) who exercises any functions or
responsibilities with respect to the Project during his or her tenure or for one year
thereafter, shall have any financial benefit, direct or indirect, in any contract or
subcontract, or the proceeds thereof, for work to be performed in connection with the
Project. The Provider further agrees that it will incorporate into every written contract
the following provision:
INTEREST OF CONTRACTOR AND EMPLOYEES: The Contractor
covenants that no person who presently exercises any functions or
responsibilities in connection with the Community Development
Program, and no one with whom they have family or business ties, has
any personal financial benefit, direct or indirect in this Contract.
D. Uniform Conflict of Interest Disclosure Statement. The Provider
acknowledges that its directors, officer, employees and agents, may potentially be
deemed to be a "public servant" as defined by Indiana Code § 35- 41 -1 -24. The Provider
hereby represents and certifies that it may enter into this Agreement under Indiana Code
§ 35 -44-1 and, to the extent applicable, will execute and file with the Commission and
any other appropriate bodies a Uniform Conflict of Interest Disclosure Statement, the
form of which is attached hereto and incorporated herein as Exhibit "C ".
E
SECTION 8. Relationship.
A. Independent Contractor. The Provider shall at all times be an independent
contractor rather than an employee of the Commission, and no act, action or omission to
act by the Provider shall in any way bind or obligate the Commission, except as
specifically provided under the terms of this Agreement. It is understood and agreed by
the parties that the Provider will not be entitled to any benefits enjoyed by the
Commission or the staff of the Commission in the normal course of their employment.
B. Tax Obli ate The Provider is solely responsible for compliance with
federal, state and local laws and regulations relating to taxes and social security payments
that may be required to be made in connection with the compensation provided under this
Agreement. The Commission, however, may file informational returns with the United
States Internal Revenue Service or similar state agency regarding payments made to the
Provider in accordance with this Agreement under conditions imposed by federal, state or
local laws applicable to such payment. The Commission shall provide IRS Form 1099 if
applicable.
SECTION 9. Indemnification.
The Provider hereby agrees to defend, indemnify, and hold harmless the
Commission, its officials, directors, employees, and agents from any and all claims of
any nature which arise from the performance by the Provider under this Agreement and
from all costs and attorney fees in connection therewith, excepting for claims arising out
of the negligence of the Commission, its officials, directors, employees, and agents. The
obligations of the Provider under this Section shall survive the termination or expiration
of this Agreement.
SECTION 10. Equal Opportunity.
The Provider shall comply with federal, state and local law in its hiring and
employment practices and policies for any activity covered by this Agreement.
SECTION 11. Entire Agreement.
This Agreement sets forth the entire agreement and understanding between the
Parties as to the subject matter hereof, and merges and supersedes all prior discussions,
agreements, and understanding of any and every nature between them.
SECTION 12. Law Governing.
This Agreement shall be construed and interpreted according to the laws of the
State of Indiana.
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SECTION 13. Assignment.
The Provider's obligations under this Agreement may not be assigned or
transferred to any other person or entity without the prior written consent of the
Commission.
SECTION 14. Amendment.
This Agreement may be amended only by separate writing, approved by both the
Provider and the Commission.
SECTION 15. Notices.
All notices or other communications which are required or permitted under the
terms of this Agreement shall be sufficient if delivered personally, by registered or
certified mail, return receipt requested, or by generally recognized, prepaid, overnight air
courier services, to the address and individual set forth below. All such notices to either
party shall be deemed to have been provided when delivered, if delivered personally,
three (3) days after mailed, if sent by registered or certified mail, or the next business
day, if sent by generally recognized, prepaid, overnight air courier services.
Commission: Brock Zeeb
Director of Economic Resources
Department of Community Investment
14th Floor, County -City Building
South Bend, Indiana 46601
With a Copy to: City Attorney
12th Floor, County -City Building
South Bend, Indiana 46601
Provider Downtown South Bend, Inc.
c/o Chairman
217 S. Michigan Street
South Bend, Indiana 46601
With a Copy to: Executive Director of DTSB
P.O. Box 930
South Bend, Indiana 46624
SECTION 16. Counterparts.
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This Agreement may be executed in counterparts, all of which shall be deemed
originals.
SECTION 17. Corporate Authority.
The undersigned persons executing and delivering this Agreement on behalf of
the Provider represent and certify that they are the duly authorized officers of the
Provider with authority to execute this Agreement; that the Provider has the full legal
right, power and authority to enter into this Agreement and to grant the rights and
perform the obligations of the Provider herein; that no third party consent or approval is
required to grant such rights or perform such obligations hereunder; that this Agreement
has been duly executed and delivered by the Provider and constitutes a valid and binding
obligation of the Provider, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally or by general equitable principles.
The undersigned persons executing and delivering this Agreement on behalf of
the City represent and certify that they are the duly authorized officers of the Commission
with authority to execute this Agreement, that they have been fully empowered, by
proper resolution or action of the Commission to execute and deliver this Agreement and
that all necessary action has been taken and done by the Commission to enter into this
Agreement.
SECTION 18. Miscellaneous.
[RESERVED].
(remainder of page intentionally left blank)
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the day and year first above written.
DOWNTOWN SOUTH BEND, INC.
Signature
Aaron J. Perri
Printed Name and 7-111e
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
ignature
Printed Name an it e
South Bend Redevelopment Commission
ATTEST:
Signature
Printed Name and Title
South Bend Redevelopment Commission
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EXHIBIT A
Requested Services
1. Purchase and maintenance of flowers, bushes, plants and related beautification items for
the South Bend Central Development Area; and
2. Purchase, repair and installation of flower pots, benches, trash receptacles, hanging
flower baskets, bicycle racks and related streetscape items such as public art; and
3. Manage the banner and flag program including the booking reservations, seasonal
purchase, installation and repair /replacement of worn or damaged flags and banners; and
4. Purchase, installation and maintenance of holiday and theme decorations, including
related items; and
5. Other services and items deemed TIF eligible by the City's Department of Community
Investment, including administrative costs necessary to implement items 1 through 4
above.
EXHIBIT A -1
Parking Lot Services
For and in consideration of the Covenants and Agreements contained in this Agreement
and in this Exhibit A -1 to this Agreement, the Provider shall provide the following services at the
premises described as Parking Lots in the Definitional Section of this Agreement:
1. The Provider hereby represents that it will use the Parking Lots as Surface
Parking for visitors and other invitees in the Downtown South Bend area.
2. The Provider has examined and knows the condition of the Parking Lots and has
received them in good order and repair except as otherwise specified. The Provider
acknowledges it has not received any representations or warranties about the condition of the
Parking Lots. The Provider will keep the Parking Lots and sidewalks and adjoining alleys in
good repair, according to City ordinances and the direction of proper public officers during the
term of this Agreement. At its expense and upon the termination of this Agreement, the Provider
will surrender the Parking Lots to the Commission in good condition and repair, ordinary wear
and tear excepted. There is no responsibility for the Provider with regard to general
infrastructure replacement, but the Provider is responsible for the maintenance and cleanliness of
the Parking Lots.
3. The Commission shall not be liable for damages caused by hidden defects or
failure to keep the Parking Lots in good repair, and shall not be liable for any damage done by
water, snow or ice being upon sidewalks, nor for any damages arising from the negligence of any
owners or occupants of adjacent or contiguous property.
4. The Commission shall not be liable for any injury to the Provider or any other
person, occurring on or in front of the Parking Lots, irrespective of whether said injury is caused
by a defect in the Parking Lots or by reason of the Parking Lots becoming out of repair or arising
from any other cause whatsoever, and the Commission shall not be liable for damage to the
Provider's property or to the property of any other person which may be located in or upon said
premises and the Provider agrees to indemnify and save harmless the Commission from any and
all claims arising out of injuries to persons or property occurring on or about said premises.
5. The Provider will not allow the Parking Lots to be used for any purpose that will
increase the rate of insurance thereon, nor to be occupied in whole or in part by any other person,
and will not sublet the same or any part thereof, nor assign this Agreement or any part hereof
without, in each case the written consent of the Commission first had and obtained, and will not
permit any transfer, by operation of law, of any interest in the Parking Lots acquired through this
Agreement, and will not permit the Parking Lots to be used for any unlawful purpose, nor disturb
the tenants of surrounding buildings or of the neighborhood and will not allow any sign or
placards posted or placed on the Parking Lots except by written consent of the Commission.
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6. No alterations, changes or additions in the Parking Lots shall be made without
first submitting written plans and specifications for the same to the Commission and obtaining its
written consent to make the same. In the event of any such remodeling, alterations or additions,
the Provider shall make the same at its own expense and shall promptly pay for all materials and
labor involved in making the same. The Provider shall not permit any liens or claims or damages
of any nature to exist against the Commission or the Parking Lots. In the event any lien, claim or
damage or any action for enforcing the same shall be filed or made against the Commission or
any of the Parking Lots, the Provider shall defend the same at its own expense. The Provider
agrees to indemnify and hold harmless the Commission from any and all liability or expense
arising by virtue of such claim, demand or lien or the defense of any action filed to enforce the
same. Any such alterations, changes or additions shall, when made, become a part of the Parking
Lots and remain thereon as the property of the Commission at the termination of this Agreement
at the option of the Commission. If the Commission shall require the Provider to restore the
Parking Lot to the original condition in which it was before this Agreement was executed, then
the Provider shall restore the Parking Lot to such conditions at its own expense and all of the
provisions of this Agreement with reference to such restoration contracts, liens, demands and
expenses shall apply to said restoration as well as the original alterations.
7. The Provider shall allow the Commission free access to the Parking Lots for the
purpose of examining or exhibiting the same and also shall allow the Commission to place upon
any of the Parking Lots, at any and all times, "For Sale" signs, and within ninety (90) days prior
to the termination of this Agreement, "For Rent" signs.
8. The Provider shall promptly pay and discharge all taxes that may be assessed or
levied by any lawful authority against the property of the Provider or any subtenants on, against
or by virtue of the business conducted in or on the Parking Lots during the term of this
Agreement.
9. The Provider shall promptly pay all water, sewage, electric, power, gas and
heating bills and taxes levied or charged against the Parking Lots for and during the term of this
Agreement.
10. The Provider covenants that should it make default in any of the covenants and
agreements herein contained, it will at once deliver peaceable possession of the Parking Lots to
the Commission, and failing to do so, it shall be lawful for the Commission, its heirs and assigns,
without notice, to declare this Agreement terminated and to re -enter the Parking Lots, or any part
thereof, either with or without process of law, and to expel, remove and put out the Provider, or
any person or persons occupying the same, using such force as may be necessary so to do, and to
repossess and use the Parking Lots as before this Agreement, without prejudice to any remedies
which might otherwise be available to the Commission for breach of covenants, and the Provider
further covenants and agrees, that the Commission shall have, at all times, the right to distrain
for rent due, and shall have a valid and first lien upon all property of the Provider whether
exempt by law or not, as security for the covenants of the Provider.
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11. After the service of notice, or the commencement of a suit, or after final judgment
for possession of the Parking Lots, the Commission may receive and collect any rent due and the
payment of said rent shall not waive or affect said notice, said suit or said judgment.
12. If the Provider shall make any assignment for the benefit of creditors or if a
receiver is appointed for the Provider or its assets or of the Provider's interest under this
Agreement, and if the appointment of such a receiver is not vacated within five (5) days, or if a
voluntary or involuntary petition is filed by or against the Provider under the Bankruptcy Act, the
Commission may, upon giving the Provider ten (10) days notice of such election, either
terminate the Provider's right to the possession of the Parking Lots or terminate this Agreement
as in the case of a violation by the Provider of any of the terms, covenants or conditions of this
Agreement.
13. It is agreed by the parties hereto that in the event the Provider is declared
bankrupt or voluntarily offers to creditor's terms of composition or in case a receiver is
appointed to take charge of and conduct the affairs of the Provider, then the Commission shall
have the right of immediate possession of the Parking Lots.
14. That in case any of the Parking Lots shall be so injured by fire, windstorm or
other catastrophe as to be rendered untenantable, and shall not be repaired by the Commission
and rendered tenantable within ninety (90) days thereafter, it shall be optional with either party
hereto to terminate the Agreement by written notice at the end of such ninety (90) days, in which
case rent shall be paid at the agreed rate above provided up to the time of such fire, windstorm,
or other catastrophe, but in case such injuries are repaired and the Parking Lot rendered
tenantable within ninety (90) days, the right to terminate the Agreement for such cause shall not
exist, provided, that nothing herein contained shall relieve the Provider from liability for
damages where such damages or destruction shall be caused by the carelessness, negligence or
improper conduct of the Provider, its agents or servants.
15. It is expressly agreed that no waiver or apparent waiver, nor the failure of the
Commission to require strict performance of any condition, covenant or agreement shall estop
the Commission from enforcing such condition, covenant or agreement, nor shall any other
conditions, covenant or agreement at any time be implied.
16. At the termination of this Agreement, by lapse of time or otherwise, the Provider
will yield up immediate possession to the Commission, and failing to do so, will pay as
liquidated damages for each day such possession is withheld, a sum equal to five times the
commercially reasonable market per diem rental; but the provisions of this clause shall not be
held as a waiver by the Commission of any rights of re -entry as herein set forth; nor shall the
receipt of rent or any part hereof, or any other act in apparent affirmance of tenancy, operate as a
waiver of the right to forfeit this Agreement and the term hereby granted for the period still
unexpired, for any breach of any of the covenants herein.
17. It is also agreed that the Provider shall pay and discharge all reasonable costs,
attorney's fees and expenses that shall be made and incurred by the Commission in enforcing the
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covenants and agreements of this Agreement, including the agreement to deliver possession for
any reason herein provided; and all the parties to this Agreement agree that the covenants and
agreements herein contained shall be binding upon, apply and inure to their respective heirs,
executors, administrators, successors and assigns.
18. It is agreed that all payments herein provided to be made shall be made without
relief from valuation or appraisement laws, and all payments required to be made which shall not
be made at the time due shall bear interest at the rate of six percent (6 %) per annum from the
date of delinquency.
19. That upon signing this Agreement, the Provider shall deliver to the South Bend
Department of Redevelopment a Certificate of Public Liability Insurance naming the City of
South Bend, the South Bend Department of Redevelopment and the South Bend Redevelopment
Commission as additional insured, against liability for injury to persons and /or persons occurring
in or about the Parking Lot. Such insurance shall be kept in full force and effect during the term
of this Agreement in an amount not less than $700,000 for any one person and not less than
$5,000,000 for any one incident.
20. That property taxes assessed or levied against the Parking Lots, if any, shall be
paid or discharged by the Provider.
21. That the Provider shall have the right to make any alterations necessary to
improve the Parking Lots, for use as a surface parking lot, upon written approval by the
Executive Director of the South Bend Department of Community Investment. Said approval
shall not be unreasonably withheld.
22. That this Agreement may be terminated by thirty (30) days advanced written
notice of either party as follows:
Redevelopment Commission
1400 County -City Building
South Bend, Indiana 46601
Downtown South Bend
c/o DTSB Board Chair
217 S. Michigan St.
South Bend, Indiana 46601
23. That the Parking Lots leased hereunder shall not be sublet and/or assigned without
the express, prior written approval of the Commission. Any provisions in any Agreement
providing protection or benefit to the Provider shall provide the same protection or benefit to the
Commission.
24. That any income received by the Provider from the operation of a Parking Lot or
by subletting or assigning this Agreement shall be used for the purpose of paying costs
associated with the operating and maintenance of said Parking Lot and for the following
additional purposes:
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(i) Planning or managing development or improvement
activities;
(ii) Designing, landscaping, beautifying or maintaining public
areas;
(iii) Promoting commercial activity or public events;
(iv) Supporting business recruitment and development;
(v) Providing security for public areas;
(vi) Administrative costs to support the above activities
including the management fee; and
(vii) All services listed in Exhibit "A ".
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EXHIBIT "B "
Project Schedule
Phase 1: General Cleaning, Spring Planting & Streetscape Installations /Decorations
Shamrock Install
St. Paddy's Event
Deep Cleaninq- litter
Planting Prep
Parking lot Maint
Project Oversight
Silver Hawks Install
Patriotic Install
All Planting
Waterinq /weeding
Phase 2: Summer Cleaning, Beautification, Event Installations /Removals
Dtwn Events Install _
Detail Cleaning - �r
Weeding /Watering - - --
Litter- Parking Patrol
Power Washing
Pruning
Project Oversight
Red Table Plaza
Art Beat
Phase 3: Fall Decorations, Planting, Leaf Removal, Event Installations /Removals
ND Flaq Install
Spring Plant Removal
Red Table Plaza
Watering
Football Fridays
Litter Patrol
Power Washing
Project Oversight
Fall Plantina Install
Holidav Install
Snntn Hni iea Inctnll
Phase 4: Snow Removal, Cleaning, Event Install & Decoration Removal
Santa House
Litter Patrol- Cleaning 11 r-
Project Oversight
Snow Removal ern
Equipment Repairs
Holidav Takedown
APPENDIX "A" TO EXHIBIT "B"
Project Budget
Expenditures
Operational
Beautification Program*
Plant Materials (flowers, plants, mulch, soil, baskets, liners )
$12,500.00
DTSB Ambassador Services (maintenance, decorating,
landscaping, watering/fertilizing, litter removal, graffiti
abatement, cleaning, snow removal, parking lots, safety patrols,
misc supplies)
$222,000.00
Subtotal
$234,500.00
Streetsca a Enhancements **
Banners & Flags
$1,000.00
Holiday Themed Decorations
$4,000.00
Street Furniture/Public Art
$4,500.00
Subtotal
$ 9,500.00
Business Recruitment/Retention
Downtown Recruitment- Retention Assistance/R &D /Collateral
$5,000.00
Ribbon Cuttings/Anniversaries
(plaques, stanchions, carpet, misc printing)
$1,000.00
Subtotal
1 $6,000.00
Total Expenditures $250,000.00
Item/type Quantity Range
* Concrete/Bronze/Clay/Banner Pots, Bowls 80 -125
* Hanging Baskets
*Tree Rings /Squares/Planters, Raised Beds
200 -250
60 -90
* *Banners & Flags (UND, American, Holiday, Events) 150 -270
* *Holiday Themed Decorations (Shamrocks, Snowflakes, Wreaths, Tree
lights, Garland, Light strands) 25 -100
* *Street Furniture (Benches, Bike Racks, Trash Receptacles, Lighting,
Kiosk. Public Art) 15 -20
Service Area Covered- 4 Districts (Medical, East Bank Village, North Central Business, South Central Business)
General Boundaries- Corby Blvd (N), Monroe St. (S), St. Peter St. (E), William St.(W)
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EXHIBIT "C"
(2/93) Form 236
Uniform Conflict of Interest Disclosure Statement
Indiana Code 35- 44 -1 -3
A public servant who knowingly or intentionally has a pecuniary interest in or derives a
profit from a contract or purchase connected with an action by the governmental entity served by
the public servant commits conflict of interest, a Class D Felony. A public servant has a
pecuniary interest in a contract or purchase if the contract or purchase will result or is intended to
result in an ascertainable increase in the income or net worth of the public servant or a dependent
of the public servant who is under the direct or indirect administrative control of the public
servant; or receives a contract or purchase order that is reviewed, approved, or directly or
indirectly administered by the public servant. "Dependent" means any of the following: the
spouse of a public servant; a child, stepchild, or adoptee (as defined in I.C. 31- 3 -4 -1) of a public
servant who is unemancipated and less than eighteen (18) years of age; and any individual more
than one -half (1/2) of whose support is provided during a year by the public servant.
The foregoing consists only of excerpts from I.C. 35- 44 -1 -3. Care should be taken to
review I.C. 35- 44 -1 -3 in its entirety.
1. Name and Address of Public Servant Submitting Statement:
2. Title or Position With Governmental Entity:
a. Governmental Entity:
b. County:
4. This statement is submitted (check one):
a. as a "single transaction" disclosure statement, as to my financial interest in
a specific contract or purchase connected with the governmental entity
which I serve, proposed to be made by the governmental entity with or
from a particular contractor or vendor; or
b. as an "annual" disclosure statement, as to my financial interest connected
with any contracts or purchases of the governmental entity which I serve,
which are made on an ongoing basis with or from particular contractors or
vendors.
5. Name(s) of Contractor(s) or Vendor(s):
6. Description(s) of Contract(s) or Purchase(s) (Describe the kind of contract involved, and
the effective date and term of the contract or purchase if reasonably determinable. Dates required
if 4(a) is selected above. If "dependent" is involved, provide dependent's name and relationship):
7. Description of My Financial Interest (Describe in what manner the public servant or
"dependent" expects to derive a profit or financial benefit from, or otherwise has a pecuniary
interest in, the above contract(s) or purchase(s); if reasonably determinable, state the
approximate dollar value of such profit or benefit.):
(Attach extra pages if additional space is needed)
8. Approval of
appointed by an
university):
I (We) being the
Appointing Officer or Body (To be completed if the public servant was
elected public servant or the board of trustees of a state - supported college or
(Title of Officer or Name of Governing Body)
and having the power to appoint
(Name of Governmental Entity)
of
the above named public servant to the public position to which he or she holds, hereby approve
the participation to the appointed disclosing public servant in the above described contract(s) or
purchase(s) in which said public servant has a conflict of interest as defined in Indiana Code 35-
44-1-3; however, this approval does not waive any objection to any conflict prohibited by statute,
rule, or regulation and is not to be construed as a consent to any illegal act.
Elected Official Office
9. Effective Dates (Conflict of interest statements must be submitted to the governmental entity
prior to final action on the contract or purchase.):
Date Submitted
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Date of Action on Contract or Purchase
10. Affirmation of Public Servant: This disclosure was submitted to the governmental entity
and accepted by the governmental entity in a public meeting to the governmental entity prior to
final action on the contract or purchase. I affirm, under penalty of perjury, the truth and
completeness of the statements made above, and that I am the above named public servant.
Signed:
(Signature of Public Servant)
Date:
Within 15 days after final action on the contract or purchase, copies of this statement must be
filed with the State Board of Accounts, Indiana Government Center South, 302 West
Washington Street, Room E418, Indianapolis, Indiana, 46204 -2765 and the Clerk of the Circuit
Court of the county in which the governmental entity executed the contract or purchase. A copy
of this disclosure will be forwarded to the Indiana State Ethics Commission.
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