Ventilation Easement Agreement - Encroachment Ventilation Shaft for Underground Garage – Commerce Center Development LLC

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-2- 3. Acknowledgement of Encroachment and Grant of Easement. The Parties hereby acknowledge the Encroachment and the City agrees that the Encroachment has a limited impact on the Easement Parcel and the surrounding area. Therefore, the City grants to CCD and its successors and assigns a non-exclusive easement over, under and across the Easement Parcel to allow ventilation from the parking garage underneath the Development via the Encroachment. The Parties agree that CCD shall not have any right under this Agreement to enlarge the Encroachment or install improvements of any kind on the Easement Parcel other than such improvements reasonably required to maintain and operate the Encroachment. Notwithstanding the foregoing or anything herein to the contrary, no improvement to the Easement Parcel installed by CCD or its successors or assigns shall interfere with the safety of or unobstructed use of the right of way by pedestrians. 4. Maintenance; Restoration. CCD will, at its sole expense, maintain and repair in good order and condition the Easement Parcel. In the event CCD or its employees, contractors, or agents damage any part of the Easement Parcel or the public right- of-way along LaSalle Avenue, CCD shall promptly notify the City's Department of Public Works and restore such areas to substantially the same condition that existed immediately prior to such damage and to the City's standards. For purposes of this provision, normal wear and tear shall not be considered “damage” to the Easement Parcel. 5. Termination. This Agreement shall terminate at such time as the Encroachment is removed. Upon the removal of the Encroachment, CCD or its successor or assign shall restore the Easement Parcel to the City's standards. 6. Insurance. CCD shall at all applicable times maintain real property insurance covering the Easement Parcel, as well as a general liability policy providing the Company at least One Million Dollars ($1,000,000) in coverage naming the City as an additional insured. 7. Indemnification. CCD shall indemnify, defend, and hold the City, its departments, boards, officers, agents, directors, and employees harmless from and against any and all claims resulting from injury to any person caused by the negligent or intentional acts or omissions of the CCD. Notwithstanding the foregoing or anything in this Agreement to the contrary the City shall be solely liable for the actions of the City and any of its officials, employees, or agents. In addition, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 8. Reservation of Rights. The City reserves the free use of its parcel in any manner not inconsistent with the terms of this Agreement. 9. Covenant Running with the Land. The Parties intend that the rights and obligations set forth herein shall run with the land and create an equitable servitude burdening the Easement Parcel and benefitting the Real Property, shall bind every person having any fee, leasehold, or other interest therein, and shall inure to the burden or benefit of CCD and its successors and assigns. 10. Recording. This Agreement shall be duly recorded in the Office of the Recorder of St. Joseph County, Indiana, and all recording fees will be paid by CCD.