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HomeMy WebLinkAbout6.F.(1) Certified Technology Park AgreementL~~ ~ ~ ~~ Staff Report to Redevelopment Commission Certified Technology Park Agreement and Grant Agreement Prepared by Don Inks 12-2 08 On August I S, 2008, the Redevelopment Commission approved the Certified Technology Park Application and the related Grant application. These ~ycre submitted to the Indiana Economic Development Corporation (IEDC). For the past scyeral ~e~eeks ~~~e have been working with the IEDC to draft the Certified Technology Park Agreement and the Technology Development Grant Fund Grant Agreement. These agreements are noy~~ ready for consideration by the Redevelopment Commission. The Certifiicd "hechnology Agreement ~a-ill also require the approval of the South Bend Common Council. Follo~ying arc highlights from the two Agreements. Certified Technolo~v Park Agreement 1. includes the State allowed maximum term of d years. ending 12 ~ 1 l~ ?. Requires City to complete acquisition. demolition and remediation. and invest an additional SG million in infrastructure or other construction costs . Allo~~~~ City to capture the maximum (allowed by State lacy) 5~ million in sales and income taxes 4. Allows City to capture Personal Property tax increment in addition to the SS million in sales and income taxes 5. Does not allow for City to captw~e Real Property tax increment exclusively fr~r Tech Park, but does not prohibit collecting this as part of the Northeast Neighborhood TIF. The Norflieast Neighborhood ~1~IF could fund activities in the Tech Park to the extent they arc T1F eligible activities. 6. City is to complete acquisition. demolition and remediation activities by .Imle 1.201 1. and Ann Kolata has said this is more than sufficient time to complete 7. City to im~est its additional S6 million by 1 2'31 ' 12 to achic~~c shop el ready condition 8. City required to make an Annual Report beginning ~- 15%10 (tor calendar 2009). including total employmult and payroll for all businesses in the Park and number of jobs created during the year. nature and extent of an_v technology transfer, nature and extent of am non-technology businesses in the Park. use and outcome of any State monies used, an analysis of Park's o~crall contribution to the technology based economy in ]ndiana (i.e. capital im estment and product de~~elopmu~t or commercialization) Technology Dc~ elopmcnt Grant Fund Grant Agreement 1 . S? million f~>r the purpose of constructing a business incubator on the lP (ce '~D site 2. City to submit Quarterly Progress Reports (to be supplied by 'qD) 3. City can Sub-Grant to l~D. but City will remain responsible to State (our Sub-Grant Agreement ~~~ith ND ~a~ill pass on all State requirements to i~'D, so ND «~ill be responsible to City) 4. Business incubator constructed ~~ ith State Grant Funds must remain an incubator for the usefid life of the building (as defined by IRS depreciation schedules). and this requirement is being passed on to ND 5. City ~~~ill submit claims to State based on claim documentation pro~~ided by 1~'D. and ~~-hen City recei~~cs State funds the City ~~~~i11 issue check to ~~D CERTIFIED TECHNOLOGY PARK AGREEMENT This Agreement is among the Indiana Economic Development Corporation (hereinafter referred to as "IEDC"), the City of South Bend, Indiana, by and through the South Bend Common Council, the legislative body of the City of South Bend, Indiana (the "Governmental Unit") and the South Bend Redevelopment Commission (the "Commission" and with the Governmental Unit, the "City"). RECITALS WHEREAS, Indiana Code § 3Cr-7-32 et seq (the "Act") provides that a governmental unit may apply to the IEDC for designation of all or part of the territory within the jurisdiction of the unit's redevelopment commission as a certified technology park under the Act; and WHEREAS, the IEDC may approve a unit's application for the designation of a certified technology park under the Act if the IEDC determines that the application demonstrates (i) a firm commitment from at least one (1) business engaged in a high technology activity creating a significant number of jobs and (ii) significant support from or a significant commitment by, a postsecondary educational institution or other instihrtion of higher education, a private research based institute, or a military research and development or testing facility on an active United States government military base or other installation located within, or in the vicinity of, the proposed certified technology park, among other criteria set forth in Section 11 of the Act; and WHEREAS, the IEDC may not approve an application for a certified technology park that would result in a substantial reduction or cessation of operations in another location in Indiana in order to relocate them within the certified technology park; and WHEREAS, the Act further provides that upon the IEDC's designation of the certified technology park that the IEDC, the unit's redevelopment commission and legislative body of the unit that created the redevelopment commission shall enter into an agreement governing the certified technology park's designation; and WHEREAS, to maintain its designation, the Act provides that a successful applicant must maintain information regarding the operation of the certified technology park, including but not limited to, the following: (1) total employment and payroll levels for all businesses operating within the certified technology park, (2) the nature and extent of any technology transfer activity occurring within the certified technology park; (3) the nature and extent of any nontechnology businesses operating within the certified technology park; (4) the use and outcomes of any state money made available to the certified technology park; and (5) an analysis of the certified technology park's overall contribution to the technology-based economy in Indiana; and WHEREAS, the Ciry has filed an application with the IEDC dated August 12, 2008 (the "Application") for the designation of an area commonly referred to as Imlovation Park at Notre Dame as a certified technology park under the Act (the "Park"), which Application is attached hereto as Appendix I and hereby incorporated herein by reference; and V~'HEREAS, the City desires to locate the Park in the areas commonly known as the Campus Site and the Sample Street Site and more particularly described at Exhibit A (collectively, the "Area"), which Exhibit A is attached hereto and incorporated herein by reference; and WHEREAS, the IEDC, after reviewing the Application, has determined that the Application demonstrates (i) a firm commitment from at least one (1) business engaged in a high technology activity creating a significant number of jobs and (ii) significant support from or a significant commitment by, a postsecondary educational institution, as evidenced by the commitment letter dated August 12, 2008 from the University of Notre Dame (the "Spow~sor"); and WHEREAS, the IEDC has also determined upon the City's satisfaction of its commitment to invest at ]east an additional six million dollars ($6,000,000) in infrastructure and other construction costs at the Sample Street Site, in addition to its efforts to acquire and remediate the land that comprises or may comprise the Sample Street Site that the entire Park would be ready to be developed to principally contain properly that may be primarily used for high technology activity (as defined in Section 7 of the Act) or a business incubator in accordance with Section 11(a)(6) of the Act; and WHEREAS, in light of the characteristics of the Park as identified in the Application, the market conditions near the Park and the unique support provided by the Sponsor, the iEllC has determined that Che designation of the Park would not result in a substantial reduction or cessation of operations in another location in Indiana in order to relocate into the Park; and WHEREAS, the City desires to support and to provide for the proper operation and maintenance of the Park consistent with the provisions of the Act and this Agreement; WHEREAS, the establishment of high technology activities and public facilities (as defined in Section 9 of the Act) within the Park, as outlined in the Application and this Agreement, serves a public purpose and is of benefit to the general welfare of the citirens of the City and the State by encouraging investment, job creation and retention, and economic growth and diversification; NOW, THEREFORE, the parties to this Agreement, in consideration of the mutual covenants, obligations, and stipulations set forth herein, witness and agree as follows: 1. PURPOSE OF AGREEMENT: The purpose of this Agreement is to enable the IEDC to designate the Park as a certified technology park under the Act and to establish the terms and conditions governing the Park's designation, in accordance with the Act. The Park is hereby designated as a certified technology park under Section 11 of the Act and such designation shall be governed by the Act and the terms and conditions of this Agreement. The Park shall consist of the Area, as further described in Paragraph 3 of this Agreement, will operate pursuant to the Business Plan attached to the Application as Attachment 1), and shall include the public facilities set forth in Exhibit B. -2- 2. 'PERM OF AGREEMENT: The team of this Agreement and the designation of the Park shall be from January 1, 2009 and shall continue in effect during the existence of the Park's designation as a certified technology park under Section I1 of the Act In accordance with the Act, the Park's designation is subject to the continued review of the IEDC and will expire on December 31, 2012 (the "Expiration Date") unless recertified by the IEDC. If the designation of the Park lapses or is terminated for whatever reason and the Park is subsequently recertified, this Agreement shall be automatically renewed and the );xpiration Date automatically extended and the Agreement shall operate as if the Park's designation continuously remained in effect unless the parties agree otherwise. 3. DESCRIPTION OF AREA The Park designation shall apply to the Area only. A description of the Area is as set forth at Exhibit A, as set forth above. The Commission may acquire, demolish, and rcmediate the real property depicted at Exhibit C as Land to be Acquired (East) ("Expansion Area No. I ") and Land to be Acquired (South) ("Expansion Area No. 2") as a part of its redevelopment efforts. If the Commission acquires, demolishes and remediates one or both of the foregoing areas in their entirety, the IEDC shall approve a request by the Commission to expand the boundaries of the Sample Street Site to include the acquired, demolished and remediated expansion area, and the Commission and the IEDC shall execute an addendum to this Agreement providing for that expansion. To avoid all doubt, it is understood that the designation of any expansion area will expire at the same time as the original Sample Street Site. 4. COVENANTS AND RESTRICTIONS: The following covenants and restrictions are applicable to all properties contained within the Area: A. The Commission has established or shall establish a certified technology park fund (the "CTP Fund") under Section 23 of the Act to receive (i) all property tax proceeds allocated under Section 17 of the Act and (ii) any monies distributed to the Commission under Section 22 of the Act (collectively, the "CTP Revenues"). All CTP Revenues, as well as grants, if any, awarded from the IEDC's Technology Development Grant Fund established under Indiana Code § 5-28-1U (the "TDGF Statute") shall be expended only in compliance with the Act, the IEDC's Certified Technology Park Program Regtnrements, and the TDGF Statute (as applicable), as all may be amended from time to time. B. The City shall maintain information regarding the operation and maintenance of the Park and, beginning March 15, 2010, shall provide an annual report (the "Annual Report") to the IEDC by March 15 of each year for the immediately preceding calendar year ending December 31: (1) total employment and payroll levels for all businesses operating within the Park, which should also include the number of new jobs created in that year, (2) the nature and extent of any technology transfer activity occurring within the Park; (3) the nature and extent of -3- any nontechnology businesses operating within the Park; (4) the use and outcomes of any state money made available to the Park; and (5) an analysis of the Park's overall contribution to the technology-based economy in Indiana, including but not limited to the amount of capital investment that occurred and the products have been developed and/or commercialized. The Annual Report shall further include complete list of the employers in the Yark by street names and the range of street numbers of each street in the Area as of December 31. C. The parties agree that the designation of the Yark and the tax increment recapture provisions of the Act are intended to attract and assist businesses that primarily engage in a high technology activity. In the event that the IEDC determines that the Park is being operated so as to not principally benefit, attract or assist businesses that primarily engage in a high technology activity, the IEDC may, upon providing notice to the City, restrict die tax proceeds allocated under Section 17 and Section 22 of the Act to only those derived from businesses primarily engaged in a high technology activity, as determined by the IEDC or with such exceptions approved by the IEDC in writing. D. The City shall maintain that all public facilities supported in whole or in part from CTP Kevenues or grant funds awarded under the TDGF Statute continue to be used as public facilities for their useful lives as determined in accordance with federal income tax depreciation schedules. Any sale or conveyance of a public facility must include a restrictive covenant that said public facility must continue to be used for a high teclnology activity and as a public facility, even if owned by a private entity, unless the sale or conveyance is approved in advance by the IEDC in writing. Based upon the conditions represented in the Application, the IEDC determines that, in order to increase employment and private investment in the Park, the City may sell or rent to a business engaged primarily in a high technology activity at a price less than market value public facilities owned by, or developed by or with the assistance of, the Commission; provided that (i) the terms of conveyance or lease shall include a restrictive covenant that the public facilities will only be used primarily for high technology activities and as a public facility and legal and equitable remedies and rights to insure the proper enforcement of said restrictive covenant and (ii) the City discloses the material terms of the sale or rental in its Annual Report for each year in which the compensation is Icss than market value. Notwithstanding the foregoing, the IEDC may provide the City written notice of its determination that any future permanent or temporary sale or rentals below market value shall be prohibited, and the City may not enter into an arrangement, which may inhibit the effectiveness of such prohibition (such as a long-term leases with subleasing capabilities or a non-arm's length transaction involving a significant portion of its public facilities). 5. FINANCIAL COMMITMENTS: In designating the Park as a certified technology park under the Act, the IEDC has materially and significantly relied upon the following financial and performance commitments provided by the City in its Application: -4- A. The Sponsor has committed to provide the resources necessary to complete Phase I of the Park's plan, as described in the Application. The cost of Phase 1 is estimated at approximately Fifteen Million Dollars ($15,000,000). As described in the Application, the Sponsor is also coordinating, and may underwrite, the operations of the Campus Site. B. The City will complete the acquisition, demolition and remediation of the property comprising the Sample Street Site by June I, 2011 using financial resources other than CTP Revenues. The City will also invest at least an additional Six Million Dollars ($6,000,000), exclusive of any CTP Revenues, for the construction of infrastructure and other improvements at the Sample Street Site to enable its real estate to achieve ashovel-ready condition by December 31, 2012. 6. PRIMARY ACTIVITIES WITHIN PARK; MARKETING OBLIBATION The City shall make every effort to ensure that the primary activity of the Park shall be for high technology activities. The City shall notify IF_.DC in advance of any action taken by the City or the Sponsor or any of its contractors, grantees or assigns to approve, allow or permit a project or a sigiuficant activity to locate or occur within the Park, the primary focus of which does not consist of high technology activities. In consideration for the designation of the Park and any funds received under Paragraph 7, the City hereby agrees to market the Park, on behalf of the IEDC, through the teen of this Agreement to the extent required by the Act. 7. CERTIFIED TECHNOLOGY PARK INCREMENTAL TAX FINANCING FUND: The tax increment financing fund established under Section 22 of the Act (the "State CTP Fund") shall receive (i) 100% of the aggregate amount of state gross retail and use taxes that are remitted under Indiana Code §6-2.5 by businesses which exceed the gross retail base period amount, in accordance with Indiana Code § 36-7-32-22(b)(1); and (ii) 100°'0 of the income tax incremental amount pxovided for in Indiana Code § 36-7-32- 22(b)(2)(A)-{D). Notwithstanding the foregoing or anything in the Act to the contrary, not more than an aggregate total of Five Million and 00/100 Dollars ($5,000,000.00) in CTP Revenues or other funds that may be deposited into the State CTP Fund over the course of its designation. 8. CERTIFIED TECHNOLOGY PARK FUND: Except as set forth in Section 4 of this Agreement, money deposited in the CTP Fund may be used by the Connnission only for one or more of the following purposes: A. Acquisition, improvement, preparation, demolition, disposal, construction, reconstruction, remediation, rehabilitation, restoration, preservation, maintenance, repair, furnishing, and equipping of public facilities. B. Operation of public facilities as defined in the Act. -5- C. Payment of the principal of and interest on any obligations that are payable solely or in part from money deposited in the CTP Fund and that are incurred by the Commission for the purposes of financing or refinancing the development of public facilities in the Park. D. Establishment, augmentation or restoration of the debt service reserve for obligations described in Section Sc of this Agreement. E. Payment of the principal of and interest on bonds issued by the City to pay for public facilities in the Park. F. Payment of premiums on the redemption before maturity of bonds described in Section 8c of this Agreement. G. Payment of the amounts due under leases payable from funds deposited in the CTP Fund. H. Reimbursement to the Governmental Unit for expenditures made by it for public facilities in the Park. Payment of expenses incurred by the Commission for public facilities that are in the Park. J. For any purpose authorized by an agreement between the Commission and another redevelopment commission entered into under Section 26 of the Act. K. For any other purposes permitted by the Act, as amended. 9. ACCESS TO RECORDS: A. The City and its permitted grantees or contractors, if any, shall maintain all books, documents, papers, accounting records, and other evidence pertaining to the expenditures of the CTP Revenues ("Records"), for inspection by the IEDC, the State of Indiana or by any of their respective authorized representatives, and reasonable requests for copies thereof shall be furnished to the IEDC and the State of Indiana if requested. The City and its permitted grantees or contractors, if any, shall make all Records available at their respective offices at all reasonable times during the term of this Agreement and for three (3) years from the date of the final expenditure of the CTP Revenues eligible to be captured under this Agreement or until a state or federal audit has been completed and all audit exceptions cleared, whichever is earlier. B. If the IEDC determines that fraud or other criminal misconduct has occurred involving CTP Revenues, the IEDC shall consider the City in default and may terminate this Agreement. The City will be responsible for reimbursement to the IEDC of the full amount of CTP Revenues misappropriated. -6- C. The IEDC and its authorized representatives and staff have the right, at all reasonable times, to make site visits to: (1) review Park accomplishments and to confer with principals of the City and permitted grantees or contractors, if any; (2) to audit Records and management control systems; and (3) to provide such technical assistance as may be required. If any site visit is made on the premises of City, the Park or any grantee or contractor under this Agreement, the City shall provide and shall require its grantees and contractors to provide all reasonable facilities and assistance for the safety and convenience of the IF,DC or its representatives in the performance of their duties. All site visits and evaluations shall be performed in such a manner drat will not unduly delay the Park's operations or work on the Park. The City will be given at least one (1) week prior notice before any site visit. 10. STATUTORY AUTHORITY OF CITY: As a condition of designation of the Park, the City expressly warrants to the IEDC that the Commission has been duly established under, and operates pursuant to, Indiana Code § 36-7-14 or that represents a Department of Metropolitan Development on behalf of a consolidated city under Indiana Code § 36-7-I5.1. l 1. COMPLIANCE WITH LAWS: A. The City agrees to comply with all applicable federal, state and local laws, rules, regulations and ordinances, and all provisions required thereby to be included herein are hereby incorporated by reference. The enactment of any state or federal statute or the promulgation of regulations thereunder after execution of this Agreement shall be reviewed by the IEDC and the Ciry to deterniine whether the provisions of the Agreement require forma] modification. (B.) The City and its agents shall abide by all ethical requirements that apply to persons who have a business relationship with the IEDC and the State of Indiana, as set forth in Indiana Code § 4-2-6 et s_eg, Indiana Code § 4-2-7 et sec, the regulations promulgated thereunder, and Executive Order 04-08, dated April 27, 2004. If the City is not familiar with these ethical requirements, the City should refer any questions to the Indiana State Ethics Commission, or visit the Indiana State Ethics Commission website at http://www.in.gov/ethics. if the City or its agents violate any applicable ethical standards, the IEDC may, in its sole discretion, terminate this Agreement inmiediately upon notice to the IEDC In addition, the City maybe subject to penalties under Indiana Code § 4-2-6-12. (C.) The City certifies by entering into this Agreement, that neither it nor its principal(s) is presently in arrears in payment of its taxes, permit fees or other statutory, regulatory or judicially required payments to the IEDC or the State of Indiana. Further, the City agrees that any payments in arrears and currently due to the IEDC or the State of Indiana may be withheld from payments due to the City. Additionally, further work or payments may be withheld, delayed, or denied -7- and/or this Agreement suspended until the City is current in its payments and has submitted proof of such payment to the iF,DC. (D.) The City warrants that it has no current or outstanding criminal, civil, or enforcement actions initiated by the State of Indiana pending, and agrees that it will immediately notify the IpllC of any such actions. During the term of such actions, the City agrees that the IEDC may delay, withhold, or deny work or funding under this Agreement. (E.) If a valid dispute exists as to the City's liability or guilt in any action initiated by the IEDC, the State of Indiana or its agencies, and the IEDC decides to delay, withhold, or deny funding to the City, the Ciry may request that funding be continued. The City must submit, in writing, a request for review to the Indiana Department of Administration (IDOA) following the procedures for disputes outlined herein. A determination by IDOA shall be binding on the parties. Any payments that the IEDC may delay; withhold, deny, or apply under this paragraph shall not be subject to penalty or interest under Indiana Code § 5-17-5. (F.) "I`he City warrants that the City and its grantees and contractors, if any, shall obtain and maintain all required permits, licenses, and approvals, as well as comply with all health, safety, and environmental statutes, rules, or regulations in the performance of work activities at the Park. Failure to do so is a material breach of this Agreement and grounds for immediate suspension of~ this Agreement, and if it persists in a material way, for tern~ination of the Agreement and denial of further assistance from the IEDC. (G.) The City hereby affirms that the Governmental Unit is a "unit" as such term is defined in Tndiana Code ~ 36-]-2-23 and used in the Act, that it owes no outstanding reports to the lndiana Secretary of State. and that it is in good standing with the Indiana Department of Revenue. The City also affirms that (1) there are no outstanding enforcement actions against it by agencies of the State of Indiana, and (2) there are no significant workforce issues pending against the City. The below named signatory(ies) hereby warrant that they are authorized to make such affirmations to the IEDC. (H.) City agrees that the IEDC may confirm, at any time, that no liabilities exist to the IEDC or the State of Indiana, and, if such liabilities are discovered, that IEDC or the State of Indiana may bar the Ciry from conU-acting with the TEDC or the State of Indiana in the future, cancel existing contracts, withhold payments to setoff such obligations, and withhold further payments or purchases until the entity is current in its payments on its liability to the IEDC or the State of Indiana and has submitted proof of such payment to the IEDC or the State of Indiana. 12. COMPI,iA\'CE WITH TELEPHOT\E SOLICITATIONS ACT: The City shall abide by Indiana Code § 5-22-3-7 and include the following in any agreement or contract with a grantee or contractor (the "Grantee"). -8- (I) the Grantee and any principals of the Grantee certify that (A) the Grantee, except for de minimis and nonsystematic violations, has not violated the teens of (i) Indiana Code § 24.7 [Telephone Solicitation of Consumers], (ii) Indiana Code ~ 24-~-12 [Telephone Solicitations], or (iii) Indiana Code § 24-5-14 [Regulation of Automatic Dialing Machines] in the previous three hundred sixty-five (365) days, even if hrdiana Code ~ 24.7 is preempted by federal lav ;and (R) the Grantee will not violate the terms of Indiana Code § 24-4.7 for the duration of the Agreement, even if Indiana Code § 24-x.7 is preempted by federal law. (2) The Grantee and any principals of the Grantee certify that an affiliate or principal of the Grantee and any agent acting on behalf of the Grantee or on behalf of an affiliate or principal of flee Grantee: (A) except for de minimis and nonsystematic violations, has not violated the terms of Indiana Code § 24-4.7 in the previous three hundred sixty-five (365) days, even if Indiana Code ~ 24}.7 is preempted by federal law; and (B) will not violale the terms of Lidiana Code § 24-4.7 for the duration of the Agreement, even if Indiana Code § 24-4.7 is preempted by federal law. 13. DRUG-FREE WORKPLACE CERTIFICATION: (A.) The City hereby covenants and agrees to make a good faith effort to provide and maintain adrug-free workplace during the term of this Agreement. City will give written notice to the IF_,DC within ten (10) days after receiving actual notice that the City, or an employee of the City in the State of Indiana has been convicted of a criminal drug violation occurring in City's workplace. (B.) It is further expressly agreed that a false certification, a violation of the certification or the failure of the City to in good faith comply with the terms of this Paragraph shall constitute a material breach of this Agreement and shall entitle the IEDC to impose, or may otherwise result in; sanctions against the City including, but not limited to, suspension or termination of this Agreement and/or the debarment of the City from doing further business with the IEDC and the State of Indiana for up to three (3) years. (C.) In addition to the provisions of above paragraphs, if the total Agreement amount set forth in the Agreement is in excess of Twenty-Five Thousand Dollars ($25,000.00), the City hereby further agrees that this Agreement is expressly subject to the terms, conditions and representations of the following Certification: This certifzcatiorz is required by Executive Order No. 90-5, April 12, 1990, issued by the Governor of Indiana. Pursuant to its delegated authority, the Indiana -9- Department of Adrninish~ation is requiring the inclusion of this certification in all grants with and grants from the State of Indiana iii excess of $25,000.00. No award of a grant sTzall be made, and no grant, purchase order or agreement, the total amount of which exceeds x'25,000.00, shall be valid, unless and until this certification has been fully executed by the City and n-lade part of the agn~eenaent as part of the Park documents. The City certifies and agrees that it will provide adrug-free workplace by: Publishing and providing to all of its employees a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the City's workplace and specifying the actions that will be taken against employees for violations of such prohibition; and 2. Establishing adrug-free awareness program to inform employees about: (a.) The dangers of drug abuse in the workplace; (b.) The City's policy of maintaining adrug-free workplace; (c.) Any available drug counseling, rehabilitation, and employee assistance programs; and (d.) The penalties that may be imposed upon au employee for drug abuse violations occurring in the workplace. 3. Notifying all employees in the statement required by subparagraph 1 above that as a condition of continued employment the employee will; (a.) Abide by the teams of the statement; and (b.) Notify the City of any criminal drug statute conviction for a violation occun-iug in the workplace no later than five (5) days after such conviction. 4. Notifying in writing the IEDC within ten (10) days after receiving notice from an employee under subparagraph 3(b) above, or otherwise receiving actual notice of such conviction; and 5. Within thirty (30) days after receiving notice under subparagraph 3(b) above of a conviction. imposing the following sanctions or remedial measures on any employee who is convicted of drug abuse violations occurring in the workplace: (a.) Take appropriate personnel action against the employee, up to and including termination; or (b.) Require such employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for such purpose by -10- a Federal, State or local health, law enforcement, or other appropriate agency; and 6. Making a good faith effort to maintain adrug-free workplace through the implementation of subparagraphs I through 5 above. 14. NONDISCRIMINA'T'ION: Pursuant to h~diana Code § 22-9-I-10, the Civil Rights Act of 1964, the Age Discrimination in Employment Act. and the Americans with Disabilities Act, City and its grantees or contractors shall not discriminate against any employee or applicant for employment related to the Park with respect to the hire, tenure, terms, conditions, or privileges of employment or any matter directly or indirectly related to employment, because of the race, color, religion, sex, age disability, national origin or ancestry or status as a veteran. Breach of this covenant may be regarded as a material breach of contract. Acceptance of this Agreement also signifies compliance with applicable federal and state laws and regulations prohibiting the aforementioned discrimination in the provision of services. 15. NOTICE TO PARTIES: Whenever any notice, statement or other communications shall be sent to the IEDC, or the City and the Commission, it shall be sent to the following address, unless otherwise specifically advised in writing. Notices to the Indiana Economic Development Corporation shall be sent to: Indiana Economic Development Corporation Attention: Genera] Counsel One North Capitol, Suite 700 Indianapolis, Indiana 46204 Notices to the City and the Commission shall he sent to: South Bend Redevelopment Commission Attention: Department of Law 227 West Jefferson Boulevard, Suite 1400 South Bcnd, Indiana 46601 16. ORDEK OF PRECEllF,NCE: Any inconsistency or ambiguity in the Agreement shall be resolved by giving precedence in the following order: (1) this Agreement (including its exhibits). (2) the Act and all applicable State of Indiana or IEDC regulations or guidelines, (3) all application requirements and guidelines, and (4) the Application. 17. ENFORCEMENT OF AGREEMENT: Upon designation of the Park under the teams of this Agreement and the Act, a subsequent failure of any party to comply with the terms of this Agreement may result in -11- the termination or rescission of the designation as a Park effective upon delivery of written notice to the non-offending party. Further, the IEDC retains the right to revoke, by delivery of written notice to the City, the tax increment and recapture rights of the Park under the Act in the event of the IEDC's determination of noncompliance by the Governmental Unit, the Commission, its grantees or contractors or any tenant located in the Park, notwithstanding any term of this Agreement to the contrary. The City shall not cuter into any transaction under the Act which may inhibit the IEDC's enforcement of this Agreement, including a hansaction under Section 24, without the express written approval of the IEDC. 18. ASSIGNMENT: The City shall not assign in whole or any part of the Park or this Agreement or the rights hereunder to any other person or entity. 19. HOLD HARMLESS: The City shall indemnify, defend, and hold harmless the IEDC and the State of hldiana and their respective agents, officers, employees and representatives from all claims and suits for financial loss or for loss or damage to property, including the loss of use thereof, and injuries to or death of persons, including without limitation any officers, agents, employees and representatives of City or its grantees or contractors, and from all judgments recovered therefor and for expenses in defending any such claims or suits, including court costs, attorneys' fees, and for any other expenses caused by an act or omission of City andlor its grantees, contractors, agents, officers or employees in connection with performance of this Agreement or of the IEDC in exercising its rights under this Agreement. The IEDC shall not provide such indenn>ification to the City 20. DEBARMENT AND SUSPENSION: The City certifies, by entering into this Agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from entering into this Agreement by any federal agency or department, the IEDC, or agency or political subdivision of the State of Indiana. City further certifies, by entering into this Agreement, that it will not knowingly, with funds received under this Agreement or otherwise deposited into the CTP Fund, grant to, or hire, any entity which it nor its principals are, at the time of the contract debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from entering into an agreement with any federal agency or department, the IEDC, or agency or political subdivision of the State of Indiana. The term "principal" for purposes of this Agreement is defined as an officer, director, owner, parn~er, key employee, or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of City. 21. PENALTIES; INTEREST; ATTORNEY'S FEES: The IEDC will in good faith perform its required obligations hereunder and does not agree to pay any penalties, liquidated damages, interest or attorney's fees, except as authorized by Indiana law, in part, if applicable, Indiana Code ~ 5-17-5, Indiana Code § 34-54-8, and Indiana Code ~ 34-13-1. Notwithstanding the provisions contained in - IZ - Indiana Code § 5-17-5, the parties hereto stipulate and agree that any liability resulting from any failure of the IEDC to make payments as required hereunder shall he based solely on, and limited to, the principal amount of any previously generated CTP Revenues that have been withheld, and shall not be based on fimding from federal or other sources or the City's projected or committed use of any source of funding. 22. REMEDIES NOT IMPAIRED: No delay or omission of IEDC in exercising any right or remedy available under this Agreement shall impair any such right or remedy, or constitute a waiver of any default or acquicsecnce thereto. 23. MISCELLANEOUS. (A.) The headings in this Agreement are intended solely for convenience or reference and will be given no effect in the construction or interpretation of this Agreement_ (B.) This Agreement, including any attached exhibits, supersedes all prior oral and written proposals and communications, if any, and sets forth the entire Agreement of the parties with respect to the subject matter hereof and may not be altered or amended except in writing, signed by an authorized representative of each party hereto. (C.) The construction and enforcement of this Agreement will be governed by the laws of the State of Indiana, without regard to principles of choice of Law and suit, if any, under this Agreement shall be brought in Indiana, and the City hereby consents to the personal jurisdiction of Indiana courts. (D.) No waiver of any default, failure to perform, condition, provision or breach of this Agreement will be deemed to imply or constitute a waiver of any other like default, failure to perform, condition, provision or breach of this Agreement. (E.) If any paragraph, teen, condition or provision of this Agreement will be found, by a court of competent jurisdiction, to be invalid or unenforceable, or if any paragraph, term, condition or provision is found to violate or contravene the laws of the State of Indiana, then the paragraph, term, condition or provision so found will be deemed severed from this Agreement, but all other paragraphs, terms, conditions and provisions will remain in full force and effect. (F.) The parties to the Agreement, in the performance of this Agreement, will he acting in an individual capacity and not as agents, employees, partners, joint venturers or associates of one another. The employees or agents of one party shall not be deemed or construed to he the employees or agents of any other party for any purposes whatsoever. No party will assume any liability for any injury (including death) to any persons, or any damage to any property arising out of the acts or omissions of the agents, employees or subagents of any other party. -13- (G.) The City shall be responsible for providing all necessary unemployment and workers' compensation insurance for the City's employees expended with funds received or disbursed as a result of this Agreement. (H.) Unless otherwise terminated or modified as expressly permitted hereunder, this Agreement will remain in force during the term stated in Paragraph 2. Notwithstanding anything contained herein to the contrary, provisions of this Agreement, which by their nature contemplate rights and obligations of the pasties to be enjoyed or performed after the expiration or termination of this Agreement, will survive until their purposes are fulfilled. 24. REPRESENTATIONS CONCERNING APPLICATION: The City represents and warrants that the representations, statements and all other matters contained in the Application are true and complete in all material respects. It shall be considered a material breach of this Agreement if such representations, statements and other matters were not true and complete at the time the Application was made. 25. AUTHORITY TO COMMIT TO GRANT AGREEMENT: Notwithstanding anything in this Agreement to the contrary, the signatories for the City represents that he/she has been duly authorized to execute contracts on behalf of the City and has obtained all necessary or applicable approvals from the office of the City to make this Agreement fully binding upon the City when his/her signature is affixed, and this Agreement is not subject to further acceptance by City when accepted by the IEDC. 26. DEFLNITIONS: Terms not otherwise defned in this Agreement shall have the meanings set forth in the Act. 27. NON-COLLUSION AND ACCEPTANCE: The undersigned attests, subject to the penalties for perjury, (i) that he/she is the contracting party, or that he/she is the duly authorized representative, agent, member or officer of the contracting party; (ii) that he/she has not, nor has any other member, employee, representative, agent or officer of the City, directly or indirectly, to the best of his/her knowledge, entered into or offered to enter into any combination, collusion or agreement to receive or pay, and (iii) that he/she has not received or paid any sum of money or other consideration for the execution of this Agreement other than that which appears upon the face of the Agreement. (remainder of page intentionally left blank) -14- IN WITNESS WHEREOF, the parties, by their duly authori~~ed representatives, have executed this Agreement on the dates entered below. SOUTH BEND REDEVELOPMENT COn4MISSION Marcia Jones, President Date: Signature Page of South Bend RedeveGopment Commission to Technology Park Certif cation Agreement -15- CITY OF SOUTH BEND, INDIANA Timothy Rouse Common Council President Date: Signature Page of Preszdent of the Common Council of the City of Soutle Bend, Indiana to I ecknology Park Certification Agreement -16- INDIANA ECONOMIC DEVELOPMI/NT CORPORATION Nathan J. Feltman, Indiana Secretary of Commerce Signature Page of Indiana ~'cononaic Development Corporation to Technolo~~ Park Certification Agreement -17- EXHIBIT A LEGAL DESCRIPTION Campus Site Parcel 1 [Please insert the legal description obtained from DLZ Industrial on Drawing Number 8129PL for both Parcel 1 and Parcel 2] Parcel 2 Indiana University Medical School at South Bend Parcel The building commonly known as 1234 Notre Dame Avenue, South Bend, Indiana 46617 and airy academic researching centers constructed in the area adjacent thereto, south of Angela Boulevard and north of Napoleon Street between Notre Dame Avenue and Eddy Street. Office Structure located at the NW corner of Eddy Street and Angela Boulevard The two (2) office buildings to be located on the northwest comer of Eddy Street and Angela Boulevard as identified on the mapped attached as Exhibit A-1 and may be referred to as (~ and [ ]North Eddy Street, South Bend, Indiana. Sample Street Site The area west of Franklin Street (vacated), south of Sample Street, east of Prairie Avenue (State Road 23), and north of Cotter Street from Prairie Avenue (State Road 23) to Kendall Street, then east of Kendall Street and north of the Penn Central Railroad (Michigan Central Railroad). (To the extent Kendall Street is vacated to provided for the expansion of the parcel west of Kendall Street, the boundaries shall shift east to the end of that parcel as expanded between Cotter Street and the Penn Central Railroad (Michigan Central Railroad). EXI~I$IT B PUBLIC FACILITIES TO BE DEVELOPED AND COST 1. 54,000 square foot business incubator to be located on Parcel 1 of the Campus Site. (Approximate cost $15,000,000.) 2. Public infrastructure or other improvements to be constructed by the City on the Sample Street Site to enable the site to be considered shovel-ready and to provide for the development of that site. (Approximate cost $6,000,000 to X9,000,000.) APPENDIX I APPLICATION