HomeMy WebLinkAbout6G(4) SubGrant Agreement Technology ParkSUBGRANT AGREEMENT
BY AND BETWEEN
THE CITY OF SOUTH BEND, INDIANA
AND
THE UNIVERSITY OF NOTRE DAME DU LAC
(Certified Technology Park Project)
THIS AGREEMENT, entered into by and between the SOUTH BEND
REDEVELOPMENT COMMISSION, for and on behalf of the City of South Bend, Indiana,
Department of Redevelopment (hereinafter referred to as the "Grantor") and the UNIVERSITY
OF NOTRE DAME DU LAC (hereinafter referred to as the "Grantee") is executed pursuant to
the terms and conditions set forth herein, and shall be dated as of the date of final execution by
all parties hereto. In consideration of those mutual undertakings and covenants, the parties agree
as follows:
1. PURPOSE OF AGREEMENT:
The purpose of this Agreement is to enable the Grantor to make a subgrant to the above-
named Grantee from the funds received from the State of Indiana's Technology
Development Grant Fund ("TDGF") under the Technology Development Grant Fund
Grant Agreement between the Indiana Economic Development Corporation (the "State")
and the Grantor bearing Identification No. TDGF-08-100006 ("State Grant Agreement")
and in the amount of the lesser of Two Million and 00/100 Dollars ($2,000,000.00) or
One Hundred Percent (100%) of eligible costs of the Project as described in the State
Grant Agreement ("Grant Funds"), which State Grant Agreement is attached hereto and
incorporated herein as Exhibit "A-1". The Project Description and the Project Goals are
set forth in Exhibit "A " of the State Grant Agreement, which exhibit is incorporated
herein by reference. The grant provided for herein shall be used exclusively in
accordance with the provisions contained in this Agreement and in Indiana Code § 5-28-
10 establishing the Technology Development Grant Fund and any rules adopted
thereunder, as well as in that certain Certified Technology Park Agreement among the
State, the City of South Bend Common Council and the South Bend Redevelopment
Commission ("Technology Park Agreement"), and for no other purpose. The Technology
Park Agreement is attached hereto and incorporated herein as L;xhibit ``A-2".
2. TERM OF GRANT AGREEMENT:
The term of this Agreement shall be from August 14, 2009 until December 31, 2010
("Term"), unless sooner terminated as described in the State Grant Agreement. All work
and/or services under this Agreement must be completed by August 31, 2010 (the "Goal
Date").
3. DESIGN AND IMPLEMENTATION C-F PROJECT:
The Grantee shall be solely responsible for the proper design, and implementation of the
technology development Project that accomplishes the goals of the technology park
established under Indiana Code § 36-7-32 and as described in the State Grant Agreement.
The Grantor has no responsibility for such. design or construction. Grantee acknowledges
that neither the State nor the Grantor has had or will have any involvement or
responsibility regarding said design or construction.
4. MONITORING BY THE STATE:
(A.) The Grantee is responsible for obtaining and submitting to the Grantor all
documentation necessary for Grantor to obtain and submit to the State quarterly
progress reports (each a "Quarterly Progress Report") and all other documentation
so that the Grantor can comply with its monitoring obligations under the terms of
the State Grant Agreement which Quarterly Progress Reports shall include details
of progress made toward completing the Project and meeting the Project Goals as
described in the State Grant Agreement.
(B.) The Quarterly Progress Report described above shall be consistent with the
requirements set forth in Exhibit "'A" of the State Grant Agreement and shall be
submitted for the duration of this Agreement, and until the Project Goals have
been met and all required documentation has been submitted to the Grantor. The
Grantee has until the Goal Date to meet the Project Goals set forth in the original
Technology Development Grant Fund Grant Agreement hereinabove set forth.
(C.) Should the Grantee fail to meet the Project Goals by said Goal Date, the Grantee
shall provide within fifteen (15) days of the Goal Date a written justification to
the Grantor detailing why said Project Goal(s) will not be met on time.
(D.) In the event that such Quarterly Progress Reports are not submitted by Grantee
within the time frame allotted, or Grantee fails to produce the evidence required
by the Grantor under this Paragraph 4, the Grantee shall be deemed to be in
material breach of this Agreement and the Grantor may, among its other remedies,
withhold authorization for any payment request of the grant funds until such time
as the deficiency is corrected.
(E.) The State will periodically carry out a Monitoring Review (as defined below),
including an evaluation of activities, as deemed appropriate. The Grantee shall
effectively ensure the cooperation of the Grantee's employees in such monitoring
and evaluation efforts and shall produce all documentation reasonably requested
by the State evidencing the work completed on the Project. The Grantee will take
all actions necessary to correct or cure any findings identified by the State during
its monitoring and evaluation. The Grantee acknowledges that the State may not
access or disburse Grant Funds to Grantor and in such case, Grantor shall not
access or disburse Grant Funds to Grantee, until the State completes its
Monitoring Review and evaluation of activities it deems appropriate.
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(F.) After completion of the Project and before the final payment of up to Four
Hundred Thousand Dollars ($400,000.00) or Twenty Percent (20%) for the Grant
Funds can be paid to the Grantee ("Final Distribution Amount"), the State may
elect to conduct an on-site monitoring review of the Project ("Monitoring
Review"). The Monitoring Review will document the following:
(1.) Whether state, local and/or private funds allocated for the Project were
expended for activities consistent with the terms of this Agreement, the
State Grant Agreement and any amendments thereto.
(2.) A complete, detailed analysis of actual state, local and/or private funds
expended to date on the Project and conformity with the amounts for each
line item of the Budget (as defined in Paragraph 7).
(3.) A detailed listing of all Project costs by Budget line item which are
accrued yet unpaid, if any;
(4.) A written evaluation as to the Grantee's timely progress in Project
management, financial management and control systems, procurement
systems and methods, and performance relative to timely submission of
Quarterly Project Reports; and
(5.) A written evaluation as to the Grantee's compliance with procurement
policy and procedures.
The parties acknowledge that the Monitoring Review is only for the benefit of the
State and that the State may elect, in whole or in part, to allow the Grantor to
make a payment before the Monitoring Review has been completed.
(G.) If Grant Funds are disbursed and the Grant or the State Grant Agreement is
terminated by any party prior to the Expiration Date set forth in Paragraph 2 of
this Agreement, the State may elect to conduct an on-site Monitoring Review of
the Project described in Paragraphs 4 and 5 of this Agreement.
5. PAYMENT OF GRANT FUNDS BY THE CITY:
The payment of Grant Funds by the Grantor to the Grantee shall be made in accordance
with the following schedule and conditions:
(A.) This Agreement must be fully executed.
(B.) All the evidentiary materials required by Exhibit "C" attached hereto and
incorporated herein ("Conditions for Release of Funds") must be submitted to and
approved by the State.
(C.) Any and all other grant conditions as specified in Exhibit "C" must be met to the
State's satisfaction.
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(D.) All payments shall be made in arrears only upon presentation of approved and
signed State of Indiana Claim Vouchers. Payments made by Grantee shall be
deemed to be a payment by the Grantor for purposes of processing the Grantee's
claims in accordance with this Agreement and with the State Grant Agreement.
Such claim vouchers must be submitted with a Budget Expenditure Report
detailing disbursements of Grant Funds, or any local or other funds by Budget line
items described in the Budget attached hereto and incorporated herein as Exhibit
"B" of this Agreement.
(E.) The State may require the Grantee to produce satisfactory evidence, in the sole
opinion of the State, that substantial progress has been made towards completion
of the Project and that the conditions set forth or referenced in this Paragraph 5
have been met, prior to making a payment under this Agreement. All payments
are subject to the State's determination that the Grantee's performance to date
conforms to the Project as approved and described in Exhibits "A-1" and "A-2",
notwithstanding any other provision of this Agreement to the contrary. In the
event that the Grantee fails to show that the progress or completion of the Project
conforms to the description and schedule set forth in this Agreement, the State or
the Grantor may impose sanctions against the Grantee or may terminate the
Agreement under Para raph 20.
(F.) As stated in Paragr~h 4 of this Agreement, all Quarterly Progress Reports must
be submitted within the time frame allotted. In the event the Quarterly Progress
Reports are not submitted in the time frame allotted, the Grantor may withhold
authorization for any payment request until such time as the deficiency is
corrected.
(G.) No travel expenses shall be eligible for reimbursement under this Agreement.
(H.) The Grantor shall retain an amount of up to the Final Distribution Amount until
the Grantor receives the following documents:
(1.) A report prepared by a duly authorized representative of the State
summarizing the Monitoring Report, detailing how funds have been spent
on the Project in accordance with the Budget and evaluating the Grantee's
timely progress. This Monitoring Review is subject to Paragraphs 4 and 5
of this Agreement.
(2.) A final payment request submitted has been approved by the State of
Indiana Claim Voucher, and a Budget Expenditure Report.
(I.) Notwithstanding any other provision of this Agreement, the Grantee expressly
agrees that the monies provided herein by the Grantor are limited of the
Maximum Grant Amount for eligible Project expenditures as described in said
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Exhibit "B". The Grantor may de-obligate any Grant Funds which have not been
expended and drawn down as of the Expiration Date.
(J.) Failure to complete the Project and expend state, local and/or private funds in
accordance with this Agreement may be considered a material breach of the
Agreement and shall entitle the State or the City of South Bend to impose
sanctions against the Grantee including, but not limited to, suspension of all grant
payments, and/or suspension of the Grantee's participation in State grant
programs until such time as all material breaches are cured to the State's
satisfaction. Sanctions may also include repayment of all Grantee funds and all
funds from the State of Indiana, whether or not they are held or were expended for
this Project or accounted for in the Budget.
(K.) All payments shall be made in arrears by electronic funds transfer to the financial
institution designated by the Grantee in writing unless a specific waiver has been
obtained from Grantor. The written authorization must designate a financial
institution and an account number to which all payments are to be credited. No
payments will be made in advance of the receipt of goods or services that are the
subject of this Agreement except as permitted by Indiana Code § 4-13-2-20 or by
Indiana Code § 5-28-8.
(L.) Grantee understands and acknowledges that there are certain requirements,
covenants and restrictions arising out of the State Grant Agreement, and the
Technology Park Agreement between the State and the City, and that such
requirements, covenants and restrictions are intended to survive the Term of this
Agreement. Grantee further understands and acknowledges that it is bound by
such requirements, covenants and restrictions including, but not limited to, the
following:
Grantee shall provide to Grantor information regarding the operation
and maintenance of the 54,000 square foot business incubator located
on Parcel 1 of the Notre Dame Campus site as described and set forth
on Exhibit "D" hereto ("Business Incubator"), and commencing
February 15, 2010, shall provide an annual report to Grantor for the
immediately preceding calendar year ending December 31st ("Annual
Report"): (1) total employment and payroll levels for all businesses
operating within the Business Incubator, which should also include
the number of new jobs created that year; (2) the nature and extent of
any technology transfer activity occurring; (3) the nature and extent of
any non-technology businesses; (4) the use and outcomes of any Grant
Funds utilized; (5) an analysis of the Business Incubator's overall
contribution to the technology-based economy in Indiana, in a form
reasonably acceptable to the Grantor, including, but not limited to, the
amount of capital investment that occurred and the products that have
been developed or commercialized. The Annual Report shall further
include a complete list of the employers within the Business Incubator
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and corresponding addresses/telephone/contact information.
ii. Grantee shall maintain the Business Incubator as a "public facility" as
defined at Indiana Code § 36-7-32-9(2) and for the purposes described
in Indiana Code § 36-7-32-5, for the useful life as determined in
accordance with federal income tax depreciation schedules.
iii. Any sale or conveyance of all or part of the Business Incubator shall
contain a restrictive covenant that said Business Incubator must
continue to be used for "high technology activity", as defined by
Indiana Code § 36-7-32-7, and as a "public facility", as defined by
Indiana Code § 36-7-32-9(2), even if owned by a private entity, unless
the sale or conveyance is approved in advance by the State in writing.
The requirements of this Paragraph 5(L)(iv) apply to the Business
Incubator as a whole, and are not intended to apply to an individual
portion of the Business Incubator that may be subleased by the
Grantee, except to the extent that any such sublease would cause the
Business Incubator to no longer be used primarily for high technology
activities and as a public facility as defined above.
iv. In the event that the Business Incubator is sold or leased to a business
or entity engaged primarily in a high technology activity, as described
above, the terms of the conveyance or lease shall (1) include a
restrictive covenant that the Business Incubator will only be used
primarily for high technology activities and as a public facility, as
described above, and legal and equitable remedies and rights to ensure
the proper enforcement of said restrictive covenant, and (2) Grantee
discloses the material terms of the sale or lease in its Annual Report to
Grantor.
v. Grantee shall notify Grantor in advance of any action taken by Grantee
or any of its contractors, subgrantees, or assigns to approve, allow, or
permit a project or a significant activity to locate or occur within the
Business Incubator, the primary focus of which does not consiste of
high technology activities, as described above.
vi. Grantee understands and acknowledges that, should the Business
Incubator be operated in a manner so as to not principally benefit,
attract, or assist businesses that primarily engage in high technology
activity, as described above, Grantee shall be required to repay all or
part of Grant Funds upon receiving written notice from Grantor. In the
event that Grantee repays the total amount of Grant Funds provided for
in this Agreement, it shall be relieved of the requirements, covenants
and restrictions described in this Agreement.
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6. ACCESS TO RECORDS:
(A.) Grantee and its permitted subgrantees or subcontractors, if any, shall maintain all
books, documents, papers, accounting records, and other evidence pertaining to
costs incurred under this Agreement ("Records"), for inspection by the Grantor,
the State of Indiana or by any of their respective authorized representatives, and
reasonable requests for copies thereof shall be furnished to the Grantor and the
State of Indiana if requested. Grantee and its permitted subgrantees, 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 final
payment under this Agreement or until a state or federal audit has been completed
and all audit exceptions cleared, whichever is earlier.
(B.) If the State or the Grantor determines that fraud or other criminal misconduct has
occurred with disbursements made to Grantee, the Grantor will consider Grantee
in default and will terminate this Agreement in accordance with Para~ph 20.
Grantee will be responsible for reimbursement to the State of the full amount
granted to Grantee at the time of the termination.
(C.) The State, Grantor, and their authorized representatives and staff, have the right,
at all reasonable times, to make site visits to: (1) review Project accomplishments
and to confer with principals of the Grantee and permitted subgrantees, 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 Grantee or any subgrantee or contractor under this Agreement, Grantee shall
provide and shall require its contractors and subgrantees to provide all reasonable
facilities and assistance for the safety and convenience of the Grantor, State, or
their authorized representatives, in the performance of their duties. All site visits
and evaluations shall be performed in such a manner that will not unduly delay
the Grantee's operations or work on the Project. Grantee will be given at least
one (1) week prior notice before any site visit.
7. PROJECT BUDGET AND BUDGET MODIFICATION:
The Budget for the Project is set forth as Exhibit "B" of this Agreement ("Budget"). The
Grantee shall not spend more than the amount for each line item, as described in Budget,
without the prior written consent of a duly authorized representative of the Grantor, nor
shall the Project costs funded by the grant and those funded by the local and/or private
share be amended without prior written consent of the Grantor.
8. STATUTORY AUTHORITY OF GRANTEE:
Should any court of competent jurisdiction find Grantee legally ineligible to receive this
Subgrant, Grantee expressly agrees to repay all monies paid to it under this Agreement.
9. USE OF GRANT FUNDS BY GRANTEE:
Grant funds received by the Grantee pursuant to this Agreement shall be used only to
reimburse the Grantee for instituting an approved TDGF project permitted by Indiana
Code § 5-28-10 and for no other purpose. Grantee proposes to construct the Business
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Incubator as described in Exhibit "A" of the State Grant Agreement to be located on
Parcel 1 of the Campus Site as described in Exhibit "D", and as further defined as a
"public facility" by Indiana Code § 36-7-32-9 Grantee shall use said public facility as
either a community laboratory for the facility's tenants, or as a business incubator for its
respective useful lives as determined in accordance with federal income tax depreciation
schedules, and the Grantee shall repay the Grantor the entirety of Grant Funds should a
continued violation of said covenant persist thirty (30) days after receipt of written notice
for Grantor of said violation. Grantee further agrees to execute its responsibilities by
following and applying at all times the highest professional and technical guidelines and
standards. The Grantee certifies that no other state or federal ft>tnds from any source will
be used to finance activities reimbursed under this Agreement. Grantor hereby agrees
and acknowledges that the Grant Funds received by the Grantee pursuant to this
Agreement are not subject to Indiana's public bidding and/or common construction wage
laws, as set forth in Indiana Code § 5-16 and Indiana Code § 5-22. Grantor further
acknowledges that the Grant Funds received by the Grantee pursuant to this Agreement
may be used to pay for the costs of construction (including professional service contracts
in connection with such construction (i.e., engineering and architectural contracts)) of the
Business Incubator, and/or any costs of equipping the Business Incubator.
10. COMPLIANCE WITH LAWS:
(A.) The Grantee 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 Grant Agreement shall be reviewed by the Grantor and the Grantee to
determine whether the provisions of the Grant Agreement require formal
modification.
(B.) The Grantee and its agents shall abide by all ethical requirements that apply to
persons who have a business relationship with the Grantee and the State of
Indiana, as set forth in Indiana Code § 4-2-6 et seq., Indiana Code § 4-2-6 et seq,
the regulations promulgated thereunder, and Executive Order 04-08, dated April
27, 2004. If the Grantee is not familiar with these ethical requirements, the
Grantee should refer any questions to the Indiana State Ethics Commission, or
visit the Indiana State Ethics Commission website at www. in. gov/ethics/. If the
Grantee or its agents violate any applicable ethical standards, the State may, in its
sole discretion, require the Grantor to terminate this Grant Agreement
immediately upon notice to the Grantee. In addition, the Grantee may be subject
to penalties under Indiana Code § 4-2-6-12, as amended from time-to-time.
(C.) The Grantee certifies by entering into this Grant 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 Grantor or the State of
Indiana. Further, the Grantee agrees that any payments in arrears and currently
due to the Grantor or the State of Indiana may be withheld from payments due to
the Grantee. Additionally, further work or payments may be withheld, delayed, or
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denied and/or this Grant Agreement suspended until the Grantee is current in its
payments and has submitted proof of such payment to the Grantor.
(D.) The Grantee 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 State of any such actions. During the term of such
actions, Grantee agrees that the State may delay, withhold, or deny work under
any Supplement or contractual device issued pursuant to this Grant Agreement.
(E.) If a valid dispute exists as to the Grantee's liability or guilt in any action initiated
by the Grantor, the State of Indiana or its agencies, and the Grantor decides to
delay, withhold, or deny funding to the Grantee, the Grantee may request that
funding be continued. The Grantee 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 Grantor may delay, withhold, deny, or apply
under this paragraph shall not be subject to penalty or interest under Indiana Code
§ 5-17-5.
(F.) The Grantee warrants that the Grantee and its subcontractors, 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 for the State. Failure to do so is a material breach
of the Grant Agreement and grounds for immediate termination of the Grant
Agreement and denial of further work with the State or the Grantor.
(G.) The Grantee hereby affirms that it is properly registered and owes no outstanding
reports with the Indiana Secretary of State and that it is in good standing with the
Indiana Department of Revenue. Grantee also affirms that (1) there are not
outstanding enforcement actions against it by agencies of the State of Indiana, and
(2) there are no significant workforce issues pending against the Grantee. The
below named signatory (ies) hereby warrant that they are authorized to make such
affirmations to the Grantor.
(H.) Grantee agrees that the State may confirm, at any time, that no liabilities exist to
the Grantor or the State of Indiana, and, if such liabilities are discovered, that
Grantor or the State of Indiana may bar Grantee from contracting with the Grantor
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 Grantor or the State of
Indiana and has submitted proof of such payment to the Grantor or the State of
Indiana.
11. COMPLIANCE WITH TELEPHONE SOLICITATIONS ACT:
As required by Indiana Code § 5-22-3-7:
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(1) Grantee and any principals of the Grantee certify that:
(A) Grantee, except for de minimis and nonsystematic violations, has not
violated the terms of
(i) Indiana Code § 24-4.7 [Telephone Solicitation of Consumers],
(ii) Indiana Code § 24-5-12 [Telephone Solicitations], or
(iii) Indiana Code § :?4-5-14 [Regulation of Automatic Dialing
Machines] in the previous three hundred sixty-five (365) days,
even if Indiana Codf; § 24-4.7 is preempted by federal law; and
(B) Grantee will not violate the terms of Indiana Code § 24-4.7 for the
duration of the Agreement, even if Indiana Code § 24-4.7 is preempted by
federal law.
(2) 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 the 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 § 24-4.7 is preempted by federal law;
and
(B) will not violate the terms of Indiana Code 24-4.7 for the duration of the
Agreement, even if Indiana Code § 24-4.7 is preempted by federal law.
12. CONFLICT OF INTEREST:
(A.) As used in this paragraph:
(1.) "Immediate family" means the spouse and the unemancipated children of
an individual.
(2.) "Interested party" means:
(a.) The individual executing this Agreement;
(b.) An individual who combined with his immediate family has an
equity interest of one percent (1 %) or more of the Grantee, if the
Grantee is not an individual; or
(c.) Any member of the immediate family of an individual specified
under subdivision 1 or 2.
(3.) "Department" means the Indiana Department of Administration.
(4.) "Commission" means the State Ethics Commission.
(B.) The Department may cancel this Agreement without recourse by the Grantee if
any interested party (i) is an employee of the State of Indiana or the Grantor, (ii)
is a state officer or special state appointee of the Grantor under Indiana Code § 4-
2-6, or (iii) a public servant of the Grantor under Indiana Code § 35-44-1.
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(C.) The Department will not exercise its right of cancellation under subparagraph (B.)
above if the Grantee gives the Department an opinion by the Commission
indicating that the existence of this Agreement and the employment, election or
appointment by the State of Indiana of the interested party does not violate any
statute or code relating to ethical conduct of state employees, officers and special
state appointees of the Grantor. The Department may take action, including
cancellation of this Agreement consistent with an opinion of the Commission
obtained under this paragraph.
(D.) Grantee has an affirmative obligation under this Agreement to disclose to the
Department when an interested party is or becomes an employee, officer or
special state appointee of the State of Indiana. The obligation under this
paragraph extends only to those facts that the Grantee knows or reasonably could
know.
13. DRUG-FREE WORKPLACE CERTIFICATION:
(A.) Grantee hereby covenants and agrees to make a good faith effort to provide and
maintain adrug-free workplace during the term of this Agreement. Grantee will
give written notice to the State within ten (10) days after receiving actual notice
that the Grantee, or an employee of the Grantee in the State of Indiana has been
convicted of a criminal drug violation occurring in Grantee's workplace used to
administer and perform under this Agreement.
(B.) It is further expressly agreed that a false certification, a violation of the
certification or the failure of the Grantee to in good faith comply with the terms of
this Paragraph shall constitute a material breach of this Agreement and shall
entitle the State to impose, or may otherwise result in, sanctions against the
Grantee including, but not limited to, suspension of grant payments, the
termination of this Agreement and/or the debarment of the Grantee from doing
further business with the Grantor 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), Grantee hereby further agrees that this Agreement is expressly
subject to the terms, conditions and representations of the following Certification:
This certification is required by Executive Order No. 90-5, April 12, 1990, issued by the
Governor of Indiana. Pursuant to its delegated authority, the Indiana Department of
Administration is requiring the inclusion of this certification in all grants with and grants
from the State of Indiana in excess of $25, 000.00. No award of a grant shall be made,
and no grant, purchase order or agreement, the total amount of which exceeds
,$25, 000.00, shall be valid, unless and until this certification has been fully executed by
the Grantee and made part of the grant or agreement as part of the grant documents.
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Grantee 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 Grantee's
workplace and specifying the actions that will be taken against employees
for violations of such prohibition; and
Establishing adrug-free awareness program to inform employees about:
(a.) The dangers of drug abuse in the workplace;
(b.) The Grantee'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 an employee for drug
abuse violations occurring in the workplace.
Notifying all employees in the statement required by subparagraph (A.)
above that as a condition of continued employment the employee will;
(a.) Abide by the terms of the statement; and
(b.) Notify the Grantee of any criminal drug statute conviction for a
violation occurring in the workplace no later than five (5) days
after such conviction.
4. Notifying in writing the Grantor within ten (10) days after receiving notice
from an employee under subparagraph (3.)(b.) above, or otherwise
receiving actual notice of such conviction; and
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 related to the administration and performance
of this Agreement:
(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
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 (1.) through (5.) above.
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14. FUNDING CANCELLATION CLAUSE:
When the Director of the State Budget Agency makes a written determination that funds
are not appropriated or otherwise available to support continuation of performance of the
State Grant Agreement, this Agreement shall be canceled. A determination by the
Budget Director that funds are not appropriated or otherwise available to support
continuation of performance shall be final and conclusive.
15. [RESERVED]
16. NONDISCRIMINATION:
Pursuant to Indiana Code § 22-9-1-10 and the Civil Rights Act of 1964, that Age
Discrimination in Employment Act and the Americans with Disabilities Act, Grantee and
its Sub-Grantees shall not discriminate against any employee or applicant for
employment related to this Agreement 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.
17. NOTICE TO PARTIES:
Whenever any notice, statement or other communication is required under this
Agreement, it shall be sent to the following address, unless otherwise specifically
advised.
(A.) Notices to the GRANTOR shall be sent to:
SOUTH BEND REDEVELOPMENT COMMISSION
227 West Jefferson, Ste. 1200
South Bend, Indiana 46601
Attention: Director, Donald Inks
with a copy to:
CITY OF SOUTH BEND, DEPARTMENT OF LAW
227 West Jeffersion, Ste. 1400
South Bend, Indiana 46601
Attention: City Attorney
(B.) Notices to the GRANTEE shall be sent to:
UNIVERSITY OF NOTRE DAME DU LAC
203 Main Building
Notre Dame, Indiana 46556-5602
Attention: Vice President and General Counsel
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(C.) Copies of the fore~oin>? Notices shall be sent by the entit ivin~ the Notice to•
THE INDIANA ECONOMIC DEVELOPMENT CORPORATION
Finance & Administrative Services Division
Office of Development Finance
One North Capitol Avenue, Suite 700
Indianapolis, Indiana 46204-2288
Notices, statements or other communications shall be deemed delivered when received.
18. ORDER OF PRECEDENCE:
Any inconsistency or ambiguity in the Grant Agreement shall be resolved by giving
precedence in the following order: (1) the State Grant Agreement (including its exhibits),
(2) this Subgrant Agreement (including its exhibits), (3) Indiana Economic Development
Corporation guidelines, (4) all grant application requirements and guidelines, and (5) the
Grant Application.
19. [RESERVED]
20. TERMINATION OF GRANT AGREEMENT:
This Agreement may be terminated with or without cause by the Grantee or the Grantor
before its Expiration Date by sending the Grantee or the Grantor written notice via
certified mail, return receipt requested, at least thirty (30) days prior to the date of
termination. Upon receipt of this notice from the Grantor to the Grantee, no new or
additional liabilities payable by the Grantor shall be incurred without the prior written
approval of the Grantor. The Grantee shall continue to be responsible and liable for the
proper performance of its obligations to the date of termination. In the event of such
termination by either party, the State may perform an on-site monitoring review of all
Project expenditures and complete a Monitoring Report, as described in Paragraph 4 of
this Agreement, with respect to the Grantee's proper expenditure of all grant funds and
company matching funds through the date of termination.
21. ASSIGNMENT:
This Agreement binds the Grantee's successors and assignees to all terms and conditions
of this Agreement. Grantee shall not assign, subgrant or subcontract the whole or any
part of the Project unless it was specifically identified in the original Proposal or has been
approved in writing by the Grantor. This Agreement shall bind the Grantee's successors
and assignees to all terms and conditions of this Agreement. Grantor may assign
Grantor's rights under this Subgrant Agreement to the State without notice to or obtaining
the consent of Grantee, and the Grantee hereby accepts any such assignment by the
Grantor without further notice.
22. HOLD HARMLESS:
Grantee shall indemnify, defend, and hold harmless the Grantor and the State and their
respective agents, officers, employees and representatives from all claims and suits for
loss or damage to property, including the loss of use thereof, and injuries to or death of
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persons, including without limitation any officers, agents, employees and representatives
of Grantee or its subgrantees or subcontractors, 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 Grantee
and/or its subgrantees, subcontractors, agents, officers or employees in connection with
performance of this Agreement. Neither the Grantor nor the State shall provide such
indemnification to Grantee.
23. DEBARMENT AND SUSPENSION:
Grantee 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 Grantor, 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,
partner, 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 Grantee.
24. PENALTIES; INTEREST; ATTORNEY'S FEES:
The Grantor 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
Indiana Code § 5-17-5, the parties hereto stipulate and agree that any liability resulting
from any failure of the Grantor to make payments as required hereunder shall be based
solely on the amount of funding originating from the Grantor or the State of Indiana and
shall not be based on funding from federal or other sources. The Grantee shall have no
claim against the State for any payment withheld from the Grantor, for whatever reason.
25. 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 the venue
for any court action shall be the circuit or superior court of St. Joseph County,
Indiana or the United States District Court of the Northern District of Indiana and
the Grantee hereby consents to the personal jurisdiction of said courts.
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(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, term, 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 be
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 be 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.
(G.) Grantee shall be responsible for providing all necessary unemployment and
workers' compensation insurance for Grantee's employees.
(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 parties
to be enjoyed or performed after the expiration or termination of this Agreement,
will survive until their purposes are fulfilled.
26. REPRESENTATIONS CONCERNING APPLICATION:
The Grantee represents and warrants that the representations, statements and all other
matters contained in the application submitted by the Grantee to the County or State 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.
27. AUTHORITY TO COMMIT TO GRANT AGREEMENT:
Notwithstanding anything in this Agreement to the contrary, the signatory for the Grantee
represents that he/she has been duly authorized to execute contracts on behalf of the
Grantee and has obtained all necessary or applicable approvals from the office of the
Grantor to make this Agreement fully binding upon the Grantor when his/her signature is
affixed, and this Agreement is not subject to further acceptance by Grantor when
accepted by the Grantor.
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28. 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 firm, 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)
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IN WITNESS WHEREOF, Grantee and Grantor have, through duly authorized representatives,
entered into this Agreement. The parties, having read and understand the foregoing terms of the
Agreement, do by their respective signatures hereby agree to the terms thereof.
UNIVERSITY OF NOTRE DAME DU LAC
By:
Signature
Printed Nnnre and Title
DATE:
2009
SOUTH BEND REDEVELOPMENT COMMISSION
By:
Printed Name and Title
DATE: , 2009
ATTEST:
By:
Signature
Printed Name and Title
DATE:
2009
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EXHIBIT A-1
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EXHIBIT A-2
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EXHIBIT B
PROJECT BUDGET
CAPITAL COSTS* RA L MAT H T L T
CONSTRUCTION $2 000 000.00 $13 000 000.00 $15 000 000.00
SSET PURCHASE* 0.00 0.00 0.00
LEASE 0.00 0.00
$2,000,000.00 $13,000,000.00 $15,000,000.00
P RATING EXPEINDI. RE ** T F A A TOTAL COSTS
OPERATIONAL $0.00 $0.00 $0.00
GRAND TOTALS $2 000 000.00 $13 000 000.00 $15 000 000.00
*In no event shall such expenditures be more than the lesser of (i) $2,000,000 or (ii) 50% of cost
to be matched from other sources.
**Grant awards for operational expenses awarded may not exceed 80% of the total operating
expenditures in the year in which the grant is provided, and may not exceed 60%, 40% and
20% of the total operating expenses in the three (3) successive fiscal years following in the
fiscal year in which the grant is awarded.
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EXHIBIT C
CONDITIONS FOR RELEASE OF FUNDS
The following documents must be submitted to and approved by the State before
any funds may be received under this Agreement:
1. Executed Copies of all agreements between the Grantee and all consultants to be
paid with Grant Funds.
2. Executed copy of this Agreement.
3. Estimated Construction Schedule and Budget.
4. An executed claim voucher for eligible Project costs.
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EXHIBIT D
Campus Site
Parcel 1
A parcel of land in the Northwest Quarter of Section 6, Township 37 North, Range 3 East of the
Second Principal Meridian, St. Joseph County, Indiana, more particularly described as follows:
Commencing at the Northeast Corner of the Northwest Quarter of said Section 6; thence
South 00°43'29" East (this and all subsequent bearings based on the Indiana State Plan
Coordinate System; East Zone), 460.85 feet along the East line of said Northwest Quarter to
the northwesterly right-of--way purposes along State Road 23 (South Bend Avenue) recorded
October 5, 1991 on Document Number 9129497 in the Office of the Recorder of St. Joseph
County, Indiana; thence South 53°08'24" West, 123.83 feet along said northwesterly line to
the POINT OF BEGINNING of this description; thence continuing along said line South
53°08'24" West 58.42 feet; thence South 50°14'48" West, 250.32 feet along said line to the
northwesterly boundary of S.R. 23; thence South 52°50'49" West 338.01 feet along said
boundary; thence north 36°50'07" West, 588.23 feet to the south line of a parcel of land
designated on parcel number 3 for relocated Edison Road and Twyckenham Drive extension
of aRight-of--Way plat recorded August 16, 2005 as Document Number 0537239 in said
Recorder's Office; thence along the southerly and westerly lines of said parcel number 3 the
following 6 courses and distances:
1) northeasterly 241.94 feet along a curve to the left having a radius of 1190.00 feet and
subtended by a long chord bearing North 56°00' 19" East, a distance of 241.52 feet;
2) northeasterly 591.36 feet along a curve to the right having a radius of 1070.00 feet
and subtended by a long chord bearing North 66°00'50" East, a distance of 583.86 feet;
3) South 58°26'38" East, 68.74 feet;
4) South 00°47'43" West, 10.96 feet;
5) southerly 265.73 feet along a curve to the left having a radius of 960.00 feet and
subtended by a long chord bearing South 07°08'04" East, a distance of 264.89 feet;
6) South 15°03'52" East, 139.03 feet to the point of beginning, and containing 9.446
acres more or less.
SBDS02 PFACCENDA 386222v2
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