HomeMy Public PortalAbout004-2017 - Final Amendment -cost sharing re environmental remediation with Wayne CountyAMENDED INTERLOCAL AGREEMENT FOR THE SHARING OF COSTS
ATTENDANT TO THE ENVIRONMENTAL REMEDIATION OF
SITE AND REMOVAL OF UNSAFE STRUCTURE THEREON
THIS AMENDMENT TO AGREEMENT (hereinafter "Amendment") is entered into by
and between the CITY OF RICHMOND, INDIANA, a second class city located in Wayne
County, Indiana (hereinafter "City") and WAYNE COUNTY, INDIANA, a statutory unit of
government created by and under the laws of the State of Indiana (hereinafter "County") to be
effective as of the execution of this Amendment, (the "Effective Date") or upon compliance with
the procedural provisions set forth at I.C. 36-1-7, whichever is the later, as follows:
A. Recitals
1. City and County are each political subdivisions as said term is used at Indiana Code
(IC) 36-1-7-2(a) and as said term is defined at IC 36-1-2-13.
2. City and County equally shared the costs of a site evaluation of the former Reid
Hospital & Healthcare Site (the "Site"), which included an analysis of the environmental
conditions of the Site and structures thereon, as well as the development of costs estimates for the
environmental remediation of the Site and structures thereon as well as the demolition of those
structures and the post -demolition removal of demolition debris and rough grading of the areas of
the Site affected by those demolition activities (collectively referred to as the "Project").
3. The City previously procured commitments from the Indiana Finance Authority
and from the Indiana Revolving Loan Fund Brownfields Program for loans that would provide
financing for the Project (the "State Loans"); however, the City has since determined that it was
capable of financing its share of the costs associated with the Project without the assistance of the
State Loans thereby allowing it to forego the issuance and acceptance of the same.
4. In recognition of the fact that completion of the Project will remove environmental
hazards from the Site that pose a risk to public health and safety and to the land and subsurface
areas impacted by the Project, and will further result in the abatement of a public nuisance and
eyesore, City and County entered into an Agreement (the "Original Agreement") on October 3,
2017, for purposes of documenting financial contributions that each shall make or cause to be
made to finance the Project.
5. The Original Agreement provides for certain conditions precedent to the County's
contributions toward the Project costs contemplated therein. The parties hereto now desire to
amend those conditions precedent by removing the City's obligation to close and accept funding
of the State Loans as well as the City's prior commitment to not apply for or seek the use of funds
contained in the Consolidated EDIT Account maintained by the County for the purpose of
obtaining land for future economic development through the end of 2024.
6. Additionally, the parties desire to amend the Original Agreement to provide for a
specific percentage reimbursement to the County of the gross sale proceeds that might later be
realized by City's sale of the real estate comprising the Site, as more specifically set forth below.
Amendment No. 1 to Interlocal Agreement No. 4-2017
City — County Amendment to Interlocal
Agreement re Former Reid Site and
Contribution for Rehab and Demo Repayment
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7. In furtherance of the above -stated purposes, City and County desire to enter into
this Amendment to the Original Agreement as follows:
B. Terms of Agreement
1. Basis of Agreement. This Amendment is intended to constitute an Interlocal
Agreement evidencing the joint exercise of powers available to each of the City and the County,
as contemplated by the provisions of IC 36-1-7-2.
2. Duration of Agreement. This Amendment shall be in force from the Effective Date
and shall expire upon completion of the Project or upon the lapse of the period of time required in
order to assure City's compliance with the commitments that it makes in this Agreement.
3. Purpose of Agreement. This Amendment is intended to document the
commitments made jointly and severally by City and by County, through their respective executive
bodies and approved by their respective fiscal bodies.
4. Financing of Agreement. The provision of the funds by City and by County to fund
the Project shall be derived by the parties as follows:
a) County's Contribution was procured by County's Board of Commissioners
("Board") submitting Application Number 17-189 to the Economic
Development Corporation of Wayne County ("EDC") seeking a grant in the
sum of One Million Four Hundred Twenty Thousand and 00/100 US Dollars
($1,420,000.00) from the County -administered Consolidated EDIT Account
established by the contribution of part of their certified shares of economic
development income tax received by participating governmental units in the
County pursuant to IC 6-3.6-6-9.5(a)(2).
b) City's Contribution shall be procured from legally available and unencumbered
revenues as approved and/or appropriated by the City's Common Council as
recommended by the City's executive.
5. Conditions Precedent and Subsequent to Contributions. The obligations of the City
and of the County to make their respective Contributions shall be subject to the following
conditions and commitments by the affected parties.
a) Conditions to County's obligation to make its Contribution:
i) City making its Contribution; and
ii) City agreeing to each of the following commitments:
City — County Amendment to Interlocal
Agreement re Former Reid Site and
Contribution for Rehab and Demo Repayment
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City shall continue to contribute half of its certified distributions
of EDIT shares to the Consolidated EDIT account through the
end of 2024 provided that the Wayne County Council allows the
existing EDIT tax to continue to be assessed through the end of
2024.
City through its legal department and in consultation and with
the assistance, as requested by City, of County's legal
department, shall seek to determine whether there exist
potentially responsible parties (PRPs) against whom claims for
some or all of the costs of environmental remediation might be
asserted. If any such PRPs are identified, City and County agree
to confer on terms for the retention of legal counsel to pursue
such claims.
b) Conditions to City's obligation to make its Contribution:
i) County making its Contribution.
6. Reimbursement upon Sale of Real Estate and /or Recovery from PRPs. The parties
acknowledge and agree that City holds title to the land comprising the Site and is exploring options
to market and sell the same. The parties agree that upon the sale of the Site, the City will reimburse
the Consolidated EDIT Account pursuant to the following formula:
a) City has paid direct costs for the Project that total the sum of Two Million
Nineteen Thousand Four Hundred Thirty and 511100 US Dollars
($2,019,430.51).
b) County has made direct costs contributions to the Project consisting of:
1) The sum of Six Hundred Thirteen Thousand Nine Hundred Ninety-four
and 10/100 US Dollars ($613,994.10) was heretofore paid to City in
November, 2019.
2) The additional sum of Seven Hundred Seventy-two Thousand Two
Hundred Nine and 32/100 US Dollars ($772,209.32) will be paid by
County to City within five (5) business days after the final execution of
this Amendment by the second party to sign.
3) The total sum of the contributions by County, upon payment of the sum
set forth immediately above in subparagraph b) 2) will be the sum of
One Million Three Hundred Eighty-six Thousand Two Hundred Three
and 42/100 US Dollars ($1,386,203.42).
City — County Amendment to Interlocal
Agreement re Former Reid Site and
Contribution for Rehab and Demo Repayment
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c) The sum of the City's direct Project costs (subparagraph a)) plus the total of
contributions by County (subparagraph b) 3)) is the sum of Three Million Four
Hundred Five Thousand Six Hundred Thirty-three and 93/100 US Dollars
($3,405,633.93).
d) Reid Hospital & Health Care, Inc. ("Reid Health") has pledged and/or
contributed toward the total costs of the Project the sum of One Million and
00/100 US Dollars ($1,000,000.00).
e) The City will reimburse County in the sum of Forty and 70/100 percent
(40.70%) (the "Reimbursement Rate" calculated as the percentage of County's
contributions set out in subparagraph b) 3) to the total Project costs set out in
subparagraph c), above) for all Net Proceeds received by City from the sale of
all or a portion of the Site and from any net recovery from litigation or
settlement proceeds derived from PRPs. Said Reimbursement Rate shall be
adjusted by the sum of any additional costs incurred by City and/or by the sum
of any additional contributions made by County after the Effective Date of this
Amendment that are directly related to the original scope of work comprising
the Project, or as said scope might be modified by mutual agreement of City
and County.
f) For purposes of this Amendment, the monies pledged or costs incurred and paid
by Reid Health directly related to the Project, as set forth above at subparagraph
d), will not be included as part of the total costs of the Project that is used in the
calculation of the Reimbursement Rate.
g) For purposes of this Amendment, the monies pledged or costs incurred and paid
by Reid Health directly to City and related to the Project will not be included in
the amount of the direct Project costs paid by City or included in the sum set
forth above at subparagraph a).
h) For purposes of this Amendment, the term "Net Proceeds" in reference to
monies received by the City from the sale of all or a part of the Site shall refer
to the net proceeds paid to City after deducting the costs of the sale, including,
but not limited to, broker fees, buyer's allowances or costs paid by City, as
seller, or any other such seller -allocated costs. Typically, the "Net Proceeds"
that are payable to City, as seller, and as shown on the settlement statement as
the "net proceeds payable to seller" or similar language, shall comprise the Net
Proceeds received by City and would be subject to reimbursement to County at
the Reimbursement Rate. Should monies otherwise due to City, as seller, be
withheld from those monies directly paid out of closing to City, placed in
escrow, or otherwise withheld pending the post -closing satisfaction of
designated contingencies, then such withheld or escrowed funds shall not be
paid over to County until the post -closing contingencies have been satisfied. At
City — County Amendment to Interlocal
Agreement re Former Reid Site and
Contribution for Rehab and Demo Repayment
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that time, City shall reimburse County its share of the remitted contingency
withheld funds at the Reimbursement Rate, less any expenses paid by City to
affect the satisfaction of the particular contingency.
i) For purposes of this Amendment, the term "Net Proceeds" in reference to
monies received by the City from PRPs shall refer to the net proceeds paid to
City after deducting the costs of the collection or litigation proceedings giving
rise to the recovery from the PRP(s). Such costs could include, but are not
limited to, attorneys' fees, court filing fees, witness fees, deposition and
discovery costs, expert witness or consultant fees, etc. The County's share of
the Net Proceeds, when so determined and after receipt by City, shall be paid
to County at the Reimbursement Rate factor to compute the reimbursement due
County.
7. Discretion of City to Determine Acceptable Proposal for Sale of Site. The parties
agree that City may, in its discretion, choose to convey the Site to any party of its choosing, and
may do so for nominal consideration or no consideration as an incentive for future development
on the Site; thereby benefiting the City and the County. City agrees to confer with County, through
its Board of County Commissioners, at the appropriate time and subject to the necessary
confidentiality that must be observed when working with such commercial developers, to advise
County of City's intended disposition of the Site.
8. Discretion of City to Determine Acceptable Settlement with PRP. The parties agree
that City may, in its discretion, choose to accept any proposed offer of settlement from any PRP,
subject to City's obligation to confer with County, through its Board of County Commissioners,
prior to accepting such settlement proposal.
9. Staffing and Supplying Joint Undertaking. The joint exercise of powers and
undertakings of the parties shall not require additional staffing on the part of either of the units to
the Original Agreement and to this Amendment. Likewise, it is not expected that any additional
specially purchase supplies will be required in order to affect the joint exercise of the powers of
the units to the Original Agreement and to this Amendment.
10. Disposition of Property. All of the parcels comprising the Site have been acquired
by City pursuant to the undertakings contemplated by the Original Agreement with no
compensation then paid by City to County for such Site acquisition.
11. Administration of Undertakings. City, by its executive and his designees, as the
enforcement authority pursuant to which an unsafe building order previously issued against the
structures located on the Site, shall be responsible for (i) all record keeping and document
generation necessary for the completion of the Project; (ii) contracting for, and overseeing the
work comprising the Project; paying all contractors, subcontractors, materialmen, suppliers as well
as architects and engineers performing professional services in the design and implementation of
City — County Amendment to Interlocal
Agreement re Former Reid Site and
Contribution for Rehab and Demo Repayment
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the work comprising the Project; (iii) and providing an accurate accounting of all City funding of
the Project that identifies the source of such City Project funding.
(End of Page 5 — Signature Templates Follow)
Approved:
David M. Snow, Mayor of the
City of Richmond
Also Approved By:
CITY OF RICHMOND, INDIANA
BY ITS COMMON COUNCIL
Larry Parker, President
STATE OF INDIANA )
SS:
COUNTY OF WAYNE )
Before me, a Notary Public, in and for said County and State, personally appeared Ronald Oler,
President of the Common Council of the City of Richmond, Indiana, who acknowledged that the
foregoing Amendment to Interlocal Agreement was executed in such capacity as his voluntary act
and deed for and on behalf of said Council and that the foregoing representations are true and
correct.
Witness my hand and notary seal this day of 2021.
, Notary Public
Residing in County, Indiana
My Commission Expires: 920
City — County Amendment to Interlocal
Agreement re Former Reid Site and
Contribution for Rehab and Demo Repayment
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STATE OF INDIANA )
SS:
COUNTY OF WAYNE )
BEFORE ME, a Notary Public, in and for said County and State, personally appeared David M.
Snow, Mayor of the City of Richmond, Indiana, who acknowledged that the foregoing Amendment
to Interlocal Agreement was executed in such capacity as his voluntary act and deed for and on
behalf of said City and that the foregoing representations are true and correct.
Witness my hand and notary seal this day of
My Commission Expires: , 20
2021.
, Notary Public
Residing in County, Indiana
APPROVED BY WAYNE COUNTY GOVERNMENT
WAYNE COUNTY, INDIANA
By its Board of County Commissioners
IN
Kenneth E. Paust, President
And by its County Council
LOW
Attest:
Kimberly Walton, Auditor
Robert V. Chamness, President
City — County Amendment to Interlocal
Agreement re Former Reid Site and
Contribution for Rehab and Demo Repayment
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STATE O F INDIANA )
) SS
COUNTY OF WAYNE )
BEFORE ME a notary public in and for said county and state personally appeared the within
named Kenneth E. Paust, Robert V. Chamness and Kimberly Walton, respectively the president
of the Wayne County Board of County Commissioners, the president of the Wayne County
Council and the Auditor of Wayne County, Indiana, each of whom acknowledged their execution
of the foregoing Amendment to Interlocal Agreement as their voluntary act and deed and affirm
that the foregoing representations are true and correct.
Witness my hand and notary seal this day of
Printed:
Notary Public residing in
My Commission Expires:
,20
2021.
County, IN
I affirm under penalties for perjury that I have taken reasonable care to redact each Social Security number in this
document, unless required by law. Ronald L. Cross.
This Instrument Prepared By:
Ronald L. Cross, Attorney #3450-49
Boston Bever Forrest Cross & Sickmann
27 North 81' Street
Richmond, IN 47374
Phone: 765.962.7527
Facsimile: 765.966.4597
Email: rcross@bbfcslaw.com