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HomeMy WebLinkAbout6.D.(1) Contract with South Bend Heritage~~ ~ (~ ~~ Staff Report ConUact Proposal for Smith Bend Heritage Foundation for lase of ~-Vest Washington TIF Prepared by: Don Inks 11118!08 Previously tlu Rcdc~clopment Conunission had entered into n contract ~~~ith South Bcnd I la~itage Foundation (SBI IF) for the use of West Washington TIF funds for a ~ aricty of projects. That contract ran from January 2006 to December 2007, and it was our attention to renc~~ it for another t~ru years. since SBHF was a~ntinuin~ ~~~o~i< in 2008 on the A~atatorium reuse renovations ~~hich started in 2007. I am not sure if the loan of this agreement ~~~ill be an Addendum to the original contract. or a completely ne~~~ contact. Accordingly I have attached a copy of the original contract 1~~r your rc~~ie~x~ ~~~hich is the tbrm 1 expect a ne~~~ contact ~~-ould lake. Changes to the contact terms in a nc~~~ contract or /lddcndum would be the tbllow~ing. The agrccnunt would be for two years. 2008 and 2009. Exhibit C (Prajcct Budget) «~uuld change so that 2008 ~a~ill show' the Natatorium at 590.000. This amount represents a 590.000 encumbrance (or Phase I from 2007, and S~00,000 for Phase II prc~iously appropriated by the Rede~ clopmcnt Commission as the Development Opportunity Reser~°e. On February 15. 2008 the Conunission appro~~a1 $-X50.000 from the De~clopment Opportunity Rescue to be used on Phase IL Since that time. hi~~her than expected bids, along ~~~ith some unforeseen costs such as an underground stora~~c tank. ha~c added about $41.000 to Phase ll costs. ~1n additional 57.000 is requested in the event any more unanticipated costs arise. The 2009 budget ~~ould be for 5370.000 for future projects to be agreed upon by the Rcdcvclopmcnt Commission and SBHF. SBHF has been acti~~ely w~orkingon dcrelopment in the West Washington area forthc past three decades. SBH ~ has an exemplary dc~~clopment record durin~~ that time on u variety of projects incVuding single family rehab, multi-family nc~~~ const~uc[ion and rehab. commercial property acquisition and demolition and other property reuse rehab such as the Natatorium. Their de~~elopment expertise allows Rede~elopmcnt to continue the progress in West Washington. and do so in an etticicnt manner by ~~~~orl<ing ~n~ith SBHF in lieu of hiring and dc~°cloping that staff capacity in house. fhc stall rccommcndation is to appro~~c the contact proposal etiecti~~c January 1, 2008. CELL AGREEMENT BY AND BET~~'EEN THE SOl/'~TH I3E1~D REllE«LOPnIENT COMMISSION AND SOUTI3 BEND HERITAGE FOCNDATION, INC. RELATED TO THE ~~'EST V4'ASHiNGTON-CIE~T'IN DEVELOI'ME'~T AREA THIS AGREEMENT, made on ~~.~.~~~-~ 3 , 2006 by and between the South I3cnd Rede~~elopment Commission ("Commission") hang its offices at 1200 County-Cite Building, 227 \~'est Jefferson; South Bend. Indiana 46601, and South Bend Heritabe Foundation, Inc., a not-for-profit domestic corporation organized under the laws of the State of Indiana ("SBHF"); and having its principal place of business at 803 Lincolnway V~'est, South Bend, Indiana 466] 6. R1,CITAL S ~'t'HEI2EAS, the Commission is the s~oveming bode of the Cite of South Bend Department of Rede~~elopment ("Department") and exists and operates under the pro~~isions of 1.C. 36-7-14, commonl~~ kno~~~n as the "Redevelopment of Cities and Toms Act of ] 9~3", as amended lrom time to time (`Act"); and '~'l'HEREAS_ pursuant to the Act, the Commission has the po~~er and dutJ~ to in~~cstigate. stud~~. quid surve~~ areas ~~~thin the corporate boundaries of the City of South Bend that the Commission has determined to he blighted within the meaning of the Act and to redevelop said areas in a manner that ~~111 promote ]and use in order to serve the best interests of the Cite and its inhabitants; and ~~'IIEREAS. 4~e Commission has determined that the area described nn Eahihit "A° attached hereto and incorporated herein ~s blighted ~~~thin the mewling of the Act and in accordance ~~ith the powers granted the Commission, has designated the area as the "~~'est l~'ashin<~ton-Chapin Development Area" ("De~~elopmeni hrea") and further, has desi~~nated the Development Area as an allocation area for purposes of tax increment financing: and ~~'HEIZEAS. the Commission has adopted the ~~'est V~'ashington-Chapin De.°elopment 'area Deg°clopment Plan ("Development Plan') in order to facilitate redevelopment of the Development Area and intends to utiJiz.e cenain tax increment revenues identified and described in this Agreement in accomplishing redevelopment actin°ities as permitted b~, I.C. 36-7-14; and VI'HERE.AS, SBHF is anot-for-profit organization created for the purpose of planning. directive and coordinating economic and communit,~ revitalization ~a-itltin rile City of South Bend. including the area described at Eahihit "A''. and ~~"I-IEI2E.AS. SBHF is ti~L'in~~ to assist Lhe Commission it accomplishing its Development Plan; and ~'173RREAS, the Connnission desires to a~•ail itself of SBHF's expertise and to retain its services_ and ~',~HEREAS; the Commission and SBHF ~~sh to memorialize the terms and conditions of their agreement. i~0~~', THEREFORE, in consideration of the mutual promises and obligations expressed in this Agreement, the adequacy of ti~hich consideration is hereb~~ ac]:no~~ledged, the Commission and S73I3F agree as follows: SECTIOi17.0 RECITALS. The Recitals sel forth above are a part of this Agreement for all purposes. SECTION 2.0 .APPOI'STIl1E'~T A?~D At'THORITY OF SBI7F. ?1 The Commissian hereby retains SB1dF to pro~~ide the sen'ices described in this Agreement as "Project Activities` and hcrebti~ authorizes SF3HP to exercise such po~~-ers ~yith respect to the performance of said seryicCS as ma}' be reasonable necessan~ for the performance of SBHF~s obli~~ati~~lis as described in this Agreement, and SBHF accepts such appointment on the terms and a~nditions set forth herein. 2.2 "The Commission herebe empo~~,-ers and appoints SBHF to act as the Commission's a~~ent for the limited purpose of contracting for sur~~e~ s and title ~~>ork related to Project Activities in accordance ~~ith the terms ar~d conditions ofthis A<~rec'ment and the e~:hibits thereto. 5B7I}= sha]J obtain title work from either Meridian Title Corporation or Metropolitan Title Corporation or other such qualified title compam~ as approved h~~ the Commission and shall execute such agreements as are reasonable and necessary on behalf of and as anent for the Commission. 2.3 This limited a~~encv appointment be tt~e Commission to SBHF shall immediatel~~ terminate upon breach b~• SBHF of this Agreement and the Commission shall provide vv~-itten notice to SBHF at icast fourteen (14) da~~s in advance of the date of termination of agency. "I-he authority and appointr~tent of SBHF herein is further limited b}~ the terms and conditions set forth in this Agreement 2.4 "hr,c agenc~° prm~isions contained herein apple onle as stated and steal] not be deemed to create ane partnership. joint venture or .other enterprise of an~~ t~~pe or nature bett~,~een the Soutn Bend Redevelopment Commission and South Bend Heritage Foundation, Inc. SECT10'~~ 3.0 CO'~7'~TiSSIO'~ OI3LlG.~TI01S. 3.1 The Commission. shall make funds a~~ailable to SBHF from tax increment rep enues generated ~a~ithin the Deg eJopment Area during the period comrnencin~~ January i . ?OG6 i:.,.~~1'U'.7A`.I'RO'~iCTCF"UC4 531sP,Ti~' ~GI~E:IV1I ~~ V'4 ~If:. ~; X>; and ending December ~ ]. 2007 (`7-I1 Revenues") for use in catr~ trig out those redevelopment acti~~ities more specificall.' described at Exhibit "T3" attached hereto and incorporated herein ("Project Activities"). The purpose and intent of the Conmvssion`s commitment of TIF Revenues is to facilitate the accomplishment of the Development Plan for the Development Area utilizing SBHFs services and expertise. 3.2 The TIF Revenues are estimated to be sufficient to carry out the Project Activities described at Exhibit "I3". 33owe~~er; the Parties understand and hereby acknoti°]edge that actual T1F Revenues are dependant upon a numtaer of factors that are hevond the control of either pam including, bat not limited to, the amount of tax increment generated ~~~thin the Development Area during the prescribed time period. Ho~~cyer. to the extent that the TIF Revenue identified in this Agreement is available. the Commission hereb}~ commits said TIF Revenue to those Protect Activities more specifically described at Exhibit "B". In the event that SBHF does not expend all TIF Revenue identified in tlvsngreement prior to the expiration of this Agreement, or t'~c Project Acti~~ities are cancelled or do not oihervise occur, or this A~~reement is tern>inated for any reason, the TIF Revenue shall revert under the sole authority and discretion of the Commission and SBHF shall have no further right to seek pa~~ment from the Commission. 3.3 In the e~~e~~t that "I1I' Revenues arc insufficient to accomplish the Project Activities identified at Exhibit "B", the Conmzission shall seek input from SBHF as to ~~$ich Protect Activities should be eliminated or reduced in order to maximize redevelopment of the lle~~elopment !Area. No~~.~eycr. all decisions of the Commission are final and conclusive. 3.4 Commission shall pay to SBll1~ a reasonable project management fee ("1vlanagemcnt Fee'~I in an amount not to exceed ten percent (I0°,~) of the actual and necessary sums expended on Project .Activities as evidenced h~~ ~~inen documentation submitted by SBIdF to the Commission in accordance s~,ith S~,C'T10~ 5.0. bclo~a~. Such Management Fce is pa~~able to SBIIF soleh~ from TIF Revenues as they are defined in this Agreement and shall not constitute an additional sum m~er and above the TIF Revenues identif ed in this A~~reement. 3.5 TII' Revenues shall be distributed in accordance ~~th SEC"C70'~ 5,0 of this Agreement and shall include distribution for pa~~ment of a;lo~~able Project Acti~~ities and the Mana~~ement l=ee to SBI-1F as pro~~ided above. 3.(, Pmpert~~ acquired b~~ SBHF in the Comrnission's name sha7] be insured by tine Commission through the Cite of South Bends propem~ insurance policy. as pem»tted be lam-, in accordance ~~th the terns of said palicy. 3.? The Commission shall be responsible for maintenance of Propem acquired by SBHF in the Commissions nam:. including la~~~~ mow7ng. SE('T]O'~ 4.0 S[3HF'S OBLIGATIO'~S. Fi .-.'i']). 7AlPi:.!P ~'S F.-P'• S3!3F1~' +(~iCE!IS1!;!~'1 A'4 Or '~~_JC1C 4.I Project AcYi~•ities; C~se of TIF Re~•enucs. SBHF hereh~ a~recs to perform the follors~ing sen~ices subject to the conditions set forth as follo~~s: (a} SBHF shall perform the services described at Exhibit "B" attached hereto and incorporated herein (`Project Activities") and SBIIF shall utilize the TIF Revenues identif ed in this Agreement for cam~ing out said Project Activities. (h) SBHF hereby aclno~~~ledr~es that the use of TIF 3evenues is gor~emed by IC ~6-7- 14, et seg. and hereb~~ agrees that it shall undertake al] Project Act;vities ul a manner consistent ~~.ith the requirements of IC ~6-"-14, et sey. and the regulations related to same. SBHF further agrees that it shall ensure that its commitment to the expenditure of any 'hIF Res~enue shall compl}' ss~th all governin<~ federal, state ~~d local law- including, but not limited to, public bidding and common sa~age reyuirements, as applicable. (c) SBHF agrees to compl~~ with the provisions of the uniform Relocation, Assistance and Rea] Propert~~ Acquisition Policies .Act of l I70. (42 U.S.C. 4601). as amended, and the regulations at 24 CFR ~76.~9, which may be amended from time to time, as applicable, in al] property acquisitions negotiated on tl:e Conunission's behalf. (d) SBIIF shall seek prior s~ritten approval from the Commission before making any material change to the Project Activities including, but not limited to, am' new projects that are subsequcnth° proposed by ST3l II= and approved b~~ the Commission. Tor purposes of this Agreement "material change" shall mean any actis~it~~ or action that wauld result in a ] 0% or more increase in the cost as expressed in the Project Bud~~et described at Exhibit "C" attached hereto and incorporated herein. (e) SBHF understands and hereby agrees that any real propcm~ negotiated b~~ S13I-IF for acquisition on the Commission's behalf and utilizing "hIF Revenues under the terns of this .`~~~reemcnt shall be shall be accomplished bs° v~~~rant~~ decd tendered in the name of the "Cits~ of South Bend,. for the use and benefit of its departn~eni of redes~elopment" in accordance with IC 36-7-14-19. (f) SBIIF understands and hereby a~urees that real or personal propem~ o~~ned b~ the Corrnnission shall not he disposed of b}~ sale or lease ss~ithout prior s;itten consent of the Con~n7ission and u~at any proceeds recei~~ed therefrom shall be returned to the Commission for its future use in the Development Area. (g) SBHF shall ensure that p:opertl~ acquired by SBIIF on the Commission's behallis secured in accordance v,ith al] applicable local and state code related to same and shall be responsible for keepil:g the Corrumission informed of anv maintenance issues that arise related to said propem°. SECTION ~.0 DISTRI33i'Tl0'~ OF TIF RE~-E'\l,~ES; AD'~7I;AISTRATIVE }ZEQLIRE'~~E'~ TS. G li.'w i'~ ,T ,J'KU 6CTS.AA~~~A~.A t,~l'.^'I~i'~.~~i R7i'..~ i!~l A'G 0.,. _;.DOC 5.1 Except as othen~-ise provided in this Agreement or an~~ exhibits thereto. TIF Revenues shall be distributed as follows: (a) ~'itl~ii~ five (5) dad's of receipt of am~ invoice or request for payment from a vendor or contractor providing sen•ices in accordance ~~~ith this Agreement. SI3HF shalt submit a ~~7itten claim to the Commission requesting pa~~ment which claim shall include sufficient izuormation anCor doc~,imentation evidencing that the expense is reasonable and necess~u}~ to carr}~ out Project Activities. (bj Vdit)lin t~~~enty-one days of receivuig a claim from SBHh, the Commission shall make pa~~ment to SI3HF by check or ~~ire transfer and SBIIF shall then tender payment directl~~ to the vendor or contractor prop°iding ser~~ices. (ej In the event of a dispute as to ~~~hether the claim for expenses or costs submitted b~~ SBI77= is reasonable and necessar~~, or~~that such services are related to Project Activities. or are not TIF-eligible expenses in accordance ~~th I.C. 36-i-]4. the Commission steal] pak the non- disputed sums and SBHF shall then be required to submit additional documentation and infermation to ~~~arrant payment h}' the Commission. (d) ~hhe Commission shall pa~~ SBHF a Management Fee, as described in ,Section 3.5, above, from total TIF Revenues based upon the v~7itlen documentation pro~Tided to Commission evidencing reasonable a~1d necessary costs and expenses incurred or to be incurred for Project Activities. 5.2 SBHI~~ shall submit annual ~~ririen reports to the Commission indicating pro~~ress and the status ~f Project Activit~~es and a detailed accounting of all T]F Revenues received and the corresponding use (`Annual Report'). The frst Annual Report iv the Conunission shall be submitted to the Commission on or before January 15, 2007 re}ated to Project Activities conducted in calendar ve~u ~'OOC. Thereafter, Annual Reports shall be submitted to the Commission no later than Januan~ 1 ~`~' of each year during the term of this Agreement. ~.3 In addition to the .Annual Report, SBHF shall: (a) Ensure that all TIF Re.°enue committed b~~ SBIIF on the Commission's behalf shall he necessar~~. reasonabie and directl~~ related to the Project Acti~~ities and accomplishing the Developmen'~ Plan and that all costs and expenses incurred shall he ]e~~al and proper and shall fall ~•it}lin the budget cate~~ories described at Exhibit "I3° and Exhibit "C". (bl ,A1] expenditwes steal] he supported b~~ pmper'.~~ executed. invoices, contracts or ~~ouci~ers or other official documentation e~~idencin~~ in proper detail ~~~e nature of the charees. AI] checks.. in.~oices. contracts. vouchers. orders. or other accounting documents pe:-[ainlitg in ~~~hole or in part io this Agreement shall be clear]~~ identified and readii~ accessible to t'~e _5 i C.Alh 1411'k Cpl ~. ~$A'V,C .S i3J i:. I~ .1~i~:ISL ~1~_~.. ~q ~l (i l,'_~]ICJ~ Commission for inspection and may be subject to disclosure under Indiana's Public Records Act. (c) i~o T1F Re~~enue under this Agreement shall he disbursed to SBHF. including TI1= Re~~enue related to the ?v1ana~~ement Fee, except pursuant to a ~~-ritten document that incorporates the applicable requirements of this A~=reement. (d) All records shall be maintained by SBHF for a period or three (~) ~~ears follo~a~ng the tetrnination of expiration of this A«reement. (e) /~t such times a~~d in such fouls as the Commission ma~~ require, SBHF shall furnish such statements. records, data and inforn;ation as the Commission ma~° request pertaining to matters covered b~° this t~g*reement. (~ SI3HP s1~a11 submit to the Commission a quarterly ~~ro<<ress report due to the Department of Com~nunit~° &: Economic Dc~~elopment on the fifth wor}:ine da~~ of the calendar quarter ~°hich sun~marixes the successes or failures of Project Activities. "Phis Agreement may riot be assi~~ncd by either pam~ ~s~ithout the express ~~ritten consent of the other pam~. SCCTIO;A 7.0 1'\nE~1~TFICATIO'\. SBHF hereb~~ a~arees and undertakes to defend, indcmni~fj and hold Tree and harmless the Cite of South Bcnd_ Indiana. and the South Bend Redevelopment Commission_ and the officers, ct~~ployees and agents of each. jointly and sercrall~~, free and harmless from any and all liability, loss. costs, damaees or expenses of every kind and character and description either direct or consequential, known or unknot~n. including attorne~~ fees, that the Cite of South Bend, Indiana and/or the South Bend Rede~ elopment Commission ma~~ suffer or incur as a resuh ~; an. claim or actions which may be brow<~ht h~~ an~~ person pertainin<~ to, arising out of or in connection With the performance of the Project Acti~~ities. exceptin~~ therefrom, claims arisin<~ out of the negligence of the Commission, its agents. or employees. SECTlO'\ 8.0 DEF.Al'LT. SBHF~s failwe to perform any term of pro~~ision of this A<~reement. ~~~hich failure continues uncured for z period of Thine (0) da.~s follo~~ina written notice of such failure. unless such period is extended by ~rTitten mutual consent. shalt constitute a default of this A~~reement. Dwinn said period, the Commission may ~~~i~,hold an~~ TIF Rey°eaues not ~~et distributed to SBHF including, but not lir~ted to; ~t~, '~1ana~~ement Fee claimed t?~~ SBHF until suci-~ time as 6 t!_~~~t _ ~~~,.rtic, ~:~:s~a,~cn~st3;it~,n ,cr.:~r,tr~.., ~; ~~ ,:~_.t>oc the default is cured. ]f the default is not cured. the Commission ma~~ institute legal proceedings to enforce the terms of this Agreement or ma.' terminate this Agreement. If the default is cured. then no default shall exist and the Commission shall take no further action. If Commission elects to consider terminating this Agreement due to a material default of SBHF. then Commission shall give ~~Titten notice to SBHF by certified mail, return receipt requested, of Commission's intent to tern~inate this Agreement and this Agreement shall thereb~~ be terminated Thim~ (30) Da~~s thereafter. SECTI019.0 TERMI:~A"I70'~. 9.I I~ermination for Cause. The rights and duties under this Agreement ma~~ be terminated for cause by one party by smitten notice of such termination to the other party, ~~~hich notice shall specify any such cause(s) involved. Cause for such termination of a pam~'s. rights and duties under this Agreement shall include, but not be limited to, anv of the follo~~~ina_ (a). ]nsolvencv or F3ankruptcy. 7~he threatened insolvency of either pane. the filing of an ins°oluntar~~ petition against am' party seeking its adjudication of its bankruptcy or insolvency; (b). Force '~'lajeure. :~o party shall incur any liability to another pane. but anv party shall he entitled to tenminate this Agreement if performance by any party of its obligations is prevented b~~ Acts of God. the public enemy. earthquakes, hurricanes. tornados, 17oods, fire, epidemics, civil insurrections. loss of utilities. strikes or lockouts. 9.2 Termination V1`ithout Cause. The Commission may terminate this Agreement without cause upon not less than thirly~ (30) dad's prior ~~~ritten notice to 5131~IF b~~ certified mail. return receipt requested. Am' such ~yritten nonce shall designate the intended date of termination. y~'ithin fourteen (]4) days vi the date of such notice b.~ Commission. SBl~IF shall provide the Commission ~~ith a listing of those Project Actwities that are committed to under a fully executed agreement. SBHF shall not he required to continue to provide its sere°ices to the Commission under this Agreement, provided ho~~rver that SBHF shall complete those Project Activities that have commenced or are committed to under a fully executed contract as of the date of the Commissions ti~ritten notice of termination. SF_CTIO\ 1(1.0 EQt~AL OPPQRTL~'~'IT~'. SBHF, for itself and its successors and assigns. hereb~~ agrees that in undertaking Project Activities and in the performance of this Agreement. it ~~~ill not discriminate against any person because of race. color. religion. sex. or national oricin. S13IgF agrees to post in conspicuous places. available to emplo~~ees and applicants for employment. notices setting forth the provisions of this nondiscrimination clause and ~~~ill stag. in all solicitations or adyenisements for employees placed b~~ or on behalf of the SBHF or the Commission. that all qualified applicants ~~~ill recci~~e consideration for emp;oyment ~~~ithout regard to race. color. religion, sex. F JIU"'-,CCiRL.ALAA'PD.~T.~:~'RUJLCT$.A~~\+Y9S[3)iP.Tf~ -1GIti?(=_^,^,~',~'T V'a 0~( ~_DOC or national origin. SECTION 11.0 AME'N'DMENT. This Agreement ma.' he amended from time to time, in v,-hole or in par[, by mutual ~nTitten consent of the parties in accordance vt'ith this Agreement. SECTION J2.0 LAS".' GOVEK'~I1\G. This Agreement shall be construed and interpreted according to the la~~s of the State of Indiana. SECTION I~.O COOPF,RATION rN TFIE E~'F_NT OP A LEGAL CIL~LLENGE. ]n the event of an}' administrative, legal or equitable action or other proceedine instituted by ane person not a part}° to this Agreement challenging the ~~alidit}~ of an~~ pro~~ision of this Agreement. the Parties shall cooperate in defendin<~ such action or proceeding to settlement or final judgment includin~~ all appeals. ~aeh Pam shall select its otiv legal counsel and retain such counsel at its o~~.~n expense, and in no event shall Commssion he required to bear the fees and costs of SBHF's attorneys nor shall SBHF be required to bear the fees and costs of Commission s attorney s. 1~he Parties a~~ree that this SEC~fIC)'.~ 13.0 shall constitute a separate agreement entered into concurrently ~~th this Agreement, and that if an~~ other provision of this A~~reemeni. or the Agreement as a whole. is invalidated. rendered null or set aside by a court of competent jurisdiction_ the Parties agree to he bound b_v the terms of this section, ti~hich shall survive such in~'alidation, nullification, or setting aside. SECTION 14.(1 'yIISCELLANEOL;S. 14.1 Se~~erabilih~. 1f am' terra or pro~'ision of this Agreement. or the application of anv term or provision of this Agreement to a particular situation. is heid b~~ a court of competent jurisdiction to he im~alid. void or unenforceable, the remaining terms and pro~~isions of this Agreement. or the application of this Ag~reentent to other situations.. shall continue in fu71 force and effect unless amended or modified b}~ mutual consent of the parries. ?~ot~~,~ithst~mdmg the foregoing. if anv material pro~•ision of this A~~reemerlt, or the application of such provision 1o a panicular situation. is held to be im~alid. void or unenforceable, Commission mad. in Corrmission~s sole and absolute discretion, terminate this Agreement b~~ pro~'idin~~ ~Titten nonce of such termination to SBNF. 14.2 Other Necessar-~~ Acts. Each part~~ shall execute and delis°er to the other all such other (urine: instruments and documents as may he reasonable necessary to accor.~pl;sh the s IL.A',-i ~ ' ~'.1'iCl~. C;~ v~,~\~ , ~13!iF ~'~ ~GRGLI,4F,'~"I~ v~4 0 -'':2:D<>C' Project Activities contemplated b~° this A«reement and to pro~~ide and secure to the other part~~ the full and complete enjoement of its rights and privileges hsretu~der. 14.3 \~'ai~~er of Jur~~ Trial. The parries acknowledge that disputes arising under this agreement are likely to he complex and ti~ev desire to streamline and minialize the cost o; resol~•ing such disputes. In any legal proceeding, each part~~ irrevocable waives the right to trial b~° jury in any action. counterclaim. dispute or proceeding based upon, or related w the subject matter of this Agreement. Tlvs waiver applies to all claims against all parties to such actions and proceedings. This waiver is kno~~ring]~~, intentionally and voluntarily made b~~ both parties. 14.4 _Attornc~~s' Fees. In the event of ane litigation, mediation or arbitration between the Parties regardin~~ an alleged breach of this Agreement. neither Part~~ shall be entitled to any award of attorneys' fees. 14.E Recordation. This Agreement or a Memorandum of Agreement may be recorded in the office. of the St. Joseph Count~~ Recorder subsequent to its execution. 14.6 Titles of Articles and Sections. Am' titles of the several parts. sections, and paragraphs of this Agreement are inserted for convenience or reference only and shall be disregarded in construing, or interpreting any of its pro~~isions. laJ Counterparts. This Agreement may be executed in counterparts, all of ~~~hich shall be deemed ori~~inals. 14.8 1~otices and Demands.:' notice_ dcma~~d, or other communication under the A<~rcement by either pam~ to the other shall be suljiciently given or delivered if it is dispatched b~~ re<__=istered or certified mail, postage prepaid. return receipt requested. or delivered personally, and (a) in the case of SBHF, is addressed to or delivered personally to the SBHF as follo~~~s: I~"i~la u cop}~ to: South Bend Herita~~e Foundation_ Inc 803 Lincoln~~~av y~~est South Bend. Indiana 466] 6 AT1:'~: Charlotte Sobel and Baker ~ Daniels ~'f0 V~'est Jeffersor, Bled.. Ste. 205 South Bend. Indiana 46601 ATT:~: Richard L. Hill. Esq. (b) in the case of use Comnvssion is addressed to or deli~~ered personall}~ to: N'i;h a copy to. 9 li`~u.'u ~.,14~i'RU~ .CTS`.A~~~~:. ,.Si3ii l'.Il~~ ;GR!~?.~^ V"! V~4 (.i; ~-.DOC SoutL Bcnd Rede~'elopment Conmussion City' of South Bend_ Department of Community ~ Economic Development L00 Count,'-Cite Buildine 22 % West Jefferson Bl.°d. South Bend. Indiana 4660] ATTIy: Director of Redevelopment Cite of South Bend, Department of Lav; ] 400 Counn~-Cite Buildin~~ 227 ti>`'est Jefferson Bled. South Bend. Indiana 4660] ATT'~: Cite Attorney or at such other address ~~ith respect to either such pane as that pam~ may from time to time designate in ~a~ritin~~ a~~d for~~ard to the other as provided in this Section. ]~.9 Corporate Aufhorit~•. The undersigned persons executing and de]i~~erin~~ 4iis A~~reement on behalf of SBHF represent and cenifi~ that they are t1~e dul~~ authorizcd~ofiicers of SBHF aitd ha~~e been fully empo~~~ered by proper resolution of its I3oar-d of Directors to execute and deli~~er this Agreement and that all necess3rv corporate action has been taken and done by SBIiF. *~*~ ]0 1!.,U"PL.I n..Pi2C; zC,'$ \i'NC ~Sii'P' J ~~i CLG'~7LTi A'd OC')]_~.ll0: CITE' OF SOUTI3 I3I;Nll, llEPAIZT?V'IENT OF REDEVELOP'~ZENT ~ ~~ l'n>ifeC ;vpme and ! 4ie South I3end Ftede~~elopment Commission ~G r ~i South Bcnd Rede~~clopment Commission S"h.ATE OF INDIANA j SS: ST..IOSEPH COUNTY ) Before me. the undersigned, a Notar~~ Public; in and for said Count}° and State, personall~• a~eared 1 ', r,,-~~~ ~ ,~, i e1 and ~~~cc. ~oU, ~~e~, kno«~n to me to he the a"~(~i~~tr~ ~ and ~c~~c_1~,~ res~~ctivel~ of the South Bend Rede~~elopment Commission and ackno~~]ed~ed the ea tion of the foregoin~~ Af*recment B~~ a~~d I3et~~een the South Bend Rede~-clopment Commission and South Bend Heritage Foundation. Inc. Related To the West Washington-Chapin Development Area. LN ~t'IT'~L-SS WHEREOF, I have hereunto subscribed mr name and axed my official sea] on the ~~f ~ da. of ~`< r~; v, car . 20 ~ ~: - y ~-fir i~ w~ ~ ~ "~ ~- ;' v ~. ~,. ~~-- Notary Public Residzng in S:. 7oseph Couni~~, Indiana !^?. ,~ -r. a .:~~LL, ~'_. _ . f~% i _ f ~i._.,. S'~ '~^.,__., ~~. .. !I: ti"! )° I.~!'i2U~~3C~I~S-~'~h,CA,tiHIiI~TJr r1~6G.'13'~i A~~ ((~.'i~=1)C)C SOUTH BE'~D HEI2lTAGE FOL~DAT10?~, I\C. c; -, y-; / _ ~ ~ ~I /l1L(1 ~u'II1C LIC ~~ l~~ ~,~L ~,»,. ~n:, ., ~~ ~('~-I fem. P~'c~~~~ S~ _~ t~~, or- r,~I~La;~a ~ ~ ss: S7~. JOSEP}I COU'N'TY ) Before me, the undersigned. a Notan Public, in and for said Count~° and State; personall~° appeared ~~ ~~ V_G~/tic`'~ and ~~~" ~,~/Z kno~am to me to be the ~~ ~~(~ and ~~~~,_~~~~ respecti~~e]}~ of Sauih Bend Heritage Foundation, Inc. and acla~o~~~ledged the execution of the foregoing .Agreement B~~ and Betio/cen the South Bend Rede~°clopmcnt Commission and South Bend ;Ierita~~e Foundation, lnc. Related 'Io the ~~,'est 1>`'ashington-Chapin De./eloptnent Area. I~' ~'ITIyESS l4'HLREOF, I ha~~e hereunto subscribed m}' name and affixed m~° official sea] on the ~°~day of ~)~ ~/~~ . 200 ~.~' ~ ri ~1~~' 1~~~~~~~ eta ~ Public Residing in St. Joseph Count}. lndiana l~-~~+~i/SSl DN ~~r ~~~~ ~ ~ ~ /a,~iac~~ li AO~i'i !'i:U.I1C IS,R~I~ -,SHili=]7r ~~J2LE'~'c'~~I V'4 U~=DOC EAHII~IT "A" Description of Development Area \~'I[~. 1d'i~l~i. ~IF.P,'\~~-.~~„SI3ilP.i ~' CiRcil1:!~~; A': i.'.^'.~:_UUC (2). The West ~~'ashineton-Chapin De~~clopment Area.. as reduced herein to exclude Reduction Area 'yo. 1 shall be hereinafter knoti~n as the "~~%est ~~asliington-Chapin Derelop;nent .Area° and is more pailicularl~~ described as follo~~s: ~','cst ~'`'ashin~~ton-Cha~;ii~ Development Area A Parcel of land being a part of Section 10, and a part of Section l l_ To~~~nship 3 i Not-th, Ranee 2 Fast, City of South Bend, Poi~taee To~~~nship. St. Joseph County. Indiana, and being more particularly described as follo~s~s: Commencine at the }?oint of intersection of y~'estern ,Avenue and ~~`illiam Street; thence NoiZh along the centerline of ~~+'illiam Sucet to the Easterl}~ projection ofthe Southerly right-o f- ~a~ay first 14.0 foot alley: being the point of be~~inning: thence ~>,'esterly along the South right-of- ~~~ay line of said Y4.0 foot alley and projected to the intersection of the Vilest right-of-~~~av line of Taylor Su-eet: thence North alone the ~§'est ri ~zht-of-~~~av line of Tar~lor Street to the. intersection of the South right-of--«~ay line of V~'a~me Street; thence ~>,'est along the South ii ~~ht-of-~~~av line of ~>,'avne Street to the intersection of the Last right-of-~~~av line of Scott Street; thence South along the East richt- of- ~~~ay line of Scott Street to the interne-coon of the Easterl~~ projected South right-of-~~'ay line of Napier Street; thence 'v'est along the South right-of-v~~ay line oCNapier Street to the intersection of the centerline of the first 14.0 foot Worth-South alley; thence South alone the centerline of said 14.0 foot alle~~ to the projected Southerly right-of-~~~av line of the first 14.0 foot East-y1'est alley; thence ~'`~'est along the projected and South n~uht-of-~~~ay~ line of said alley to the intersection of the East properly line of St. Joseph Count}~ Tax parcel 18-3051-2012. Bloch ~1 (no~~~ noted as Block x','88-Parcel 5): thence South along said East property line of paid Parcel ~ and projected to the intersection of the centerline of V','estcrn Avenue (State Road 2); thence y'v"est alon<~ the centerline of V>,'estern ,Avenue to the intersection of the North n<zht- of-r~~av line of the Conrail Railroad properly (formerly known as the Penn Centrai Railroad); thence Northwesterly along the Nonh right-of-~~a~~ line of said Conrail Railroad property and projecting beyond Olin°e Street, intersectin~~ ~~~ith a projected centerline of the first North-South 14.0 foot alien. 1>.~est of Olive Street (no~e~ noted as Block V>v' 12-Parecl 1); thence North a~ong the projected and centerline of sate Aor-th-South 14.0 foot alley to the intersection of the North ri<~ht-of-~a~a~~ line of Oranee Street: thence East aion~~ the'.vorih right-of-~aa~ line of Orange Street to the intersection of the East ri~~ht-of-~~ay line of Olin e Street; thence North alone the East right-of- ~r~ay line of Olire Street to tl:e intersection of the Soutl; right-of-~~~ay of Linden Street; thence East alone the South ri~~ht-of-~~av line of Linden Street to the intersection of the Ay"est ri~~la-of- r~~a~~ line of Sadie Street thence South alone the ~~~est riu~ht-of-ra~ar~ line of Sadie Street to the intersection of the North propem,~ line of Lot ~7 of.arnold's Second Addition to the Cite of South Bend (no~~ noted as Bloch ~'~~_-parcel 21 ); thence East a]on~ a projected line of Said Lot 77, a;so bein~~ alone the'_~oi7h line ofLot ~6 ofsa.id Arnold's Second .Addition (no~~~ noted as F31ock ~~';-Parcel 1); thence continui~~~ East along the 1~'orth Line, of Lots ?4; 3 ~ and 12 of Oak Gro~~e .lddition (no~r~ noted as Block \~~ ;-Parce i 2, Block \~'.~-Parcel ] and Parcel2) to the intersection of the ti'est right-of-~~~a}~ iine o1~ O'Brien Street thence Forth along the V~`est right-of-wa}' ]ine of O'Brien Street to the intersection of the projected North propem}~ line of Lot 2, of Oak Grove Addition; thence East along the projected and'~orth line of Lot 2 (no~~~ noted as Block ~'~'S- Parcel 1) to the East ri~~ht-of-~~~a~ line of Grant Street thence South alor:~e the Fast ~i<~ht-of-way line of Grant Street to the approximate mid-point of Lot 19 of Colleee Grope Addition (nova noted as Block ~~~(-Parcel ] ); thence East along a line and approximate mid-point of Lot 19 to the East right-of-~~,~av line of Johnson Street; thence North along the Fast right-of-~av line of lohnson Street to the centerline of the first alle~~ North of Oranee Street; thence Fast along the alley centerline to a ';~'or;h South allcv: thence North along said alley centerline to the ?north line of Lot 20, Coiiege Gro~~e .Addition; thence East along the i~'orth line of said Lot 20, and projected to the East right-of-~~~av line of Brookfield Street; thence South alone the East rittht- of-~~ ay line to a point being the approximate mid-point of Lot ? 1 (no~~~ noted as the North line of Block VG'S-Parcel 1); thence East alone an approximate mid-point line and projecting East to the intersection of the Vest right-of-~~~av line of College Street; then North along the V~`est right-of-~~~av line of Colle~~e Street to the intersection of the South right-of=~~~av line of Linden Street; thence Fast along the South ris*ht-of-~~~av line of Linden Street; to the intersection of the East right-of-~~~av line Birdsell Street thence South alon<~ the East right-of=~~~av iine of Birdsell Street to the intersection of the North propem line of Lot 25 oCArnold ck Pagin's Subdivision (no~e~ noted as Block ~~'~'? 1-Parcel 1 ); thence East along the North propem' line of said Lot 25 to the intersection of the centerline oCthe first 14.0 foot 1~or-th-South alie~~; thence South along the centerline ofsaid alley to the intersection of the centerline of the first East-~>,'est 16.5 foot alley; thence East alone the centerline of said alley to the intersection of the 1~'est right-of=~~~a~~ line of Studebaker Street: ti~ence North to the intersection of a projected North ri~aht-of=~~~ay~ line oft-line Street; thence East along the projected and North right-of-~~a~~ line of Hine Sueet to the intersection of the East right-of-~aav iine of ~'~~alnut Street: thence South along the East ri~uht-of-~~~a~~ ]ine of ~>,'alnut Street to the intersection of the South propem line or the Cite Cemeter~~: thence East along the South property line of Said Cemeten to the intersection of the East proper-w line ofsaid Ccmeterr~: thence North alor.~~ the East property line of said Cemeter~~ fo a point approx;mztel~~ 39.0 feet Forth of the Northwest Comer of Lot 6 of Kuespel~ d; Sommer's Addition (no~~ noted as Block \0 =+-1-Parcel ?); thence '~ortheastcrl~~ along a projected line and parallel ~1~iti~ rite NorZh~~ e.terl~ line of Kuespcr', ~C Sonlmcr's Addition to the intersection o. the centerline n` LaPorte A~~enue: thence Nor7h~~~esterl~~ alone the centerline of LaPorte A~ enue to the intersection of the projected centerline of the first J 4.(i Soot East-~~'est alley_ I~~in~, No~Zh of LaSalle Court; thence East aloi~<~ the centerline oCsaid al I e~ to the intersection of the ~h~est property line ofLot 1. part of the ori~~inal L,ot 1 01 Chapin's Subdi~~isioi~ of bank outlots 1 and 2; thence South along the A~'esi proper~l~ line of said Lot 7 to the \orthr~~est comer of Lot 3 of Horatio Chapin Subdi~~ision (no~~ noted as Block \~'S2-Parcel 6); thence Southeasierl~~ along the'~orth property line of Lots .?, ~, ?, 9 and 1 1 (no~~ noted as Block \~~~2- Parcels 6, r, 8, 9 and 10) to the intersection of the centerline of \~'illiam Street; thence South along the cen~crline of ~~'illiam Street to the point of beginning. E~FIIBl7 "B" Project Acti~~itics and Procedure for Accomp[ishinb Certain Project Actin°ities I. PROJECT ACT11'ITIES. `'Project Acti~~ities`~ for purposes of this Agreement are those sere°ices pro~~ided b~ o~ throu~~h SI3III= utilizing the TIF Re~°enues identified in t}us Agreement for redevelopment acti~~ities conducted within the ~~'est ~>,'ashington-Chapin Development .Area that are consistent v~•ith and essential to accomplishing the Vr'est ~~'ashingrton-Chapin Development Area Development Plan under the au1}iort~~ of the South 13cnd Redevelopment Commission. The permitted use of TIF Revenue b}~ SI3HF includes costs and expenses associated ~~th the followin~~ Project Activities: (a). Real property acquisition costs and related costs and expenses neccssan° to accomplish carne including curve}'s, appraisals, title work. environmental studies, rind other due diligence activities incidental to the transaction as Fell as closing costs, recordinct fees related to same: (b) Residential and commercial relocation expenses in accordance ~s~th the Uniform Relocation Assistance and Real Propert}° Acquisition Policies Act of ]970 and the Cornntission's Relocation Policy; (c) Demolition of structures and site clearance; and (d) ,'~9aintenance of properties acquired under this Agreement including. but not limited to; costs associated with maintaining and securing said proper}° in compliance with local ordinances and regulations, as pro~~idcd in this Agreement. lice of "I-IF Revenues b~ S13HF for am' use not described abo~-e shaI] he permitted only upon prior v~7-itten consent of the Commission, which such appro~•al shall not be unreasonabl~° ~~-ithhcl d. Ii. PROCEDURES FOR ACCO'v9PLlSH1'tG CEI2TA11\ PROJECT ACTJ~'ITIES. Le«al Requirements For ProPerTv .Acquisition: 'The ponies ackno~~ledge that Commission is required to comply ~r•ith ]C 36-7-] 4-19 concerning acquisition of real propem~ which includes the obligation u~: (i) appro~~e and adopt a ]istin~~ of iiaterests in propem~ to be acquired. (ii) obtain t~~~o (2j independent appraisals of fair market ~~alue, (iiil submit a purchase offer to the propem~ o~~ner in the form prescribed br statute: and (;~~) negorate for the purchase of the propert~~. All propem~ interests acquired shall he iiee and clear of all liens, assessmems grad ether goverrm~enta] charges except for current pmpem~ taxes ~~~?sich are prorated to the date of closin~~. The Commission takes title to property b~ ~e~a:;ant~~ deed tendered in the name of the `'Cit1~ of South Bend, for the use and benefit of its Department of Rede~~e)opment"..Acquisition of H. F'P... L,! r0"C-.-S\1'V^.'C-S,4-3ilFlIP..~ I;LG'~"I;~..~ A-[ i41~_.IiOC property in a rede~~e]opment area designated as bli~~hted must be reasonable, appropriate and necessa;~~ to accomplish the development plan for the area. Relocation payments shall be made in accordance With Unifornl Relocation Assistance and Real Property Acquisition Policies Act of 1970 and the Commission's Relocation Police and, ~-here applicable, shall require submission of im~oices to the Commission related to moving expenses, etc. SIIHF has experience and know°Icdge in property acquisition a~~d de~~elopment and shall pro.°ide its ser~'ices to the Commission in accordance ~~,ith this Agreement. In addition to the terms and conditions set forth in the AL~reement and the requirements of IC 75-7-]4, et seq., the follo~a~~ng procedures have been mutually established and agreed upon b}~ SBHF and the Commission: 1. Prc~err` Acquisition: (aj II'illi~~~ Seller: (J) SI3I-IF shall he responsible for bringing to the Commission for its consideration SJ3I-IF~s recommendation of two (2) independent appraisers v,~th ~~°hom the Commission ~dll contract. In malting its reconunendation. SBHF shall obtain at ]east three (~) quotes from qualified appraisers and the Commission shall select tv~~o (2) appraisers. In accordance. ~~-ith Indiana Code ~ ~6-7-]4-J9, the appraisals are for the inforn~ation of the Commission and arc not open for public inspection. (Z) At the recommendation of ST3HF, provided that acquisition of the propert~~ is reasonable, appropriate anc necessary to accomplish the Development Plan, the Commission sill add the subject propem= to its acquisition Iist at the price to he offered established b}' the average of tti~~o (2) independent appraisers. (3) At the recommendation of SBHF, the Commission ~~'ill tender a purcl~sse offer to the propem° o~~»er in the prescribed form and thereafter. SB]IF shall negotiate diiectly ~~~ith the propem o~a~ner. (4) In accordance s~,~th SECT10'~ 2.0 of the A~~rcement. SBNF shall act as the Commssion's agent in obtaining su;~~ey and title ~s~ork for the sahject pmpcm~ and shall execute such a~~reements as are necessan~ on behalf of and as agent :or the Commission. (~l SBHi' shall be responsible for n.al:in~~ recommendations t~~ the Corrunission concerning relocation benefits and other actions incidental to the pmnert~~ acquisi?ion a:~d, upon such recommendatior, b~~ SBHF, the Commission s'nall execute such agreements. (() SBHF shall upon direction from the Commission, cause the transaction to be closed. iL1':P),-..,i'i<O~..CTSV.l4. ~~Sliili-~~L ~. Iu=L.t'.'~7 A'=~~F,~_.D'1C ~1~i Im~olznzlaryAcouisi~ion~ if SBIIF is unable to successfulh negotiate purchase of the subject propert~~, SBI1F ma~~ recommend that the Commission proceed to utilize the po~~-er of eminent domain. Not~~~ithstanding the foregon~g. all decisions concerning the exercise of eminent domain shall be at the sole discretion of the Commission. An~~ appraisals obtained b,~ SBIIF incidental to im~oluntar~~ acquisition of propem~ sha11 be conducted by M.A.I. certified appraisers. in negotiating propem~ acquisition on the Commission's behalf, SBHI= shall not threaten the use of eminent domain anainst a propem~ o~~~ier as a means of negotiation. II. Demolition: Em~ironmentaL Miscellaneous Consultants!Contractors. SBHI= shall obtain not less than three (~} quotes from qualifed persons contractors%companies setlin~~ forth the scope of ~~,~ork to be performed, the cost of such ~~ork and the teens and conditions thereof. SBHF shall re~~ic~~ the quotes recei~~ed and make a reconunendation to the Commission for the Commission's final appro~°al. Excepting contracts related to propert~~ maintenance. SBHF shall not execute an~~ contract on the Commission's bcha]£ ~aithoui prior appro~~al of the Commission. In~~oices seekin~~ pa~~ment for such scr~~ices sha11 be submitted to the Commasion or_ at SI3HF's option. it mad' make payment for such ser~~ices and seek reimbursement from the Commission upon submission of ~~~ritten documentation supporting said reimbursement request. III. Sur~~c~~: Pro~ert~ ?y'(aintenance. SBIIF shall obtain not Icss than (~j three quotes from qualified persons'amtractors!companies and shall select rite lo~~es1_ responsible, responsi~°e bidder. SBI-IF may execute a contract on the Commissions behalf ~t~ithout prior approra] of the Commission pro~'ided that the cost of the contract does not exceed ~I,~00.00. I~'. Title Insurance. SBIIF shall obtain title ~~°ork f om either Meridian 1 isle Corporation or Metropolitan Title Corporation and shall execute such agreements a_s are reasonable and necessar~~ on behalf of and as a~~ent for the Comn>zssion. ,:.U'1, 1.Pi:0 ~TS PAA _,,C!i!;P~~ 1cI;G~3~ii[!~~! A'4 ~Y~'~I~>llUC E\HIBIT "C" ?006 TIF Project Budget: I-n<aman V~atatoriui~~ S2%3.000 ?natatorium Consmuct;on 27.000 SBHF Fee 5,00,000 '.natatorium Subtotal Oil Ea_~ss x_000 Trees for 360 1. f. in front of Oil Express ~?0 SBHF Fee 5 S.SOU Oil Express Subtotal Dr. Martin Luther King. ir. Dri~~e ~ 36,000 Site survey and%or Physical enhancements (i.e., remo~~al of chain link fences. installation of nee- fences, nr:~n~ shrubbery, etc. depending on properi}~ o~~~ners' requests, etc.) 3,600 SBHF Fee S 39,600 Dr. Martin Luther King, lr. Drive Subtotal ~34~,100 2006 Projects Total 5 ?9,290 Carn~o~•er 2007 T1F Projects The expected fundin~~ a~~ailability for- 2007 is SZU8,734 These funds Neill be used for the acauisitio^ of either f-]un~~ich lron ~'~'orks, the Housing Authority Maintenance Building. or the small industr~ia] building to the immediate ~~~est of the Oil Express site at 1 X30 VJ. ~'~'ashington, and their associated demolition costs.