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HomeMy WebLinkAboutAccess Agreement - Southhold LLC - Marriott Employee Parking at Century Center13 t6 COUNTY-0'ry Buj LDING 227 W. JETFERSON BOULEVARD Sou ri I BEND. INDIANA 46601-183 0 CITY oF Sourti BEND PETE BUTTIGIEG, MAY BOARD OF PUBLIC WC I February 13, 2018 Anant Patel Southhold, LLC 247 Dixie Way North South Bend, IN 46637 RE: Access Agreement Dear Ms, Patel: PHONt.', 574/235-9251 FAX 574/ 235-9171 The Board of Public Works, at its meeting held on February 13, 2018, approved the above referenced agreement for access and authorization for no more than thirty (30) Soutlihold (Courtyard by Marriott) employees to park in the Century Center parking lot contingent on agreed to additional terms added in Section 6 regarding termination. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure c: Aladean DeRose, Legal GARY A. GiLw" SUZANNA M. FRITZBERG ELiZABi..'rii A. MARADIK JAMEs A. MUELLER TI]ERI".'sr, T. DoRAu AGREEMENT FOR AUTHORIZED, LIMITED USE OF AND ENTRY UPON CENTURY: CENTER PARKING LOT BY THE EMPLOYEES OF COURTYARD BY MARIOTT THIS AGREEMENT is made effective the day of k Y i i o-r 2018, by and between the SOUTH BEND CIVIC CENTER BOARD OF MANAGERS (tM CC Board), the SOUTH BEND BOARD OF PUBLIC WORKS, and SOUTHHOLD, LLC, an Indiana corporation d/b/a Courtyard by Marriott, with its principal. office. located at 247 Dixie Way North, South Bend, IN 46637 C Southhold' ). RECITALS WHEREAS, the South Bend Redevelopment Authority ("the Authority") is the owner of a public. convention and.multi-purpose facility known as Century Center and its surrounding real estate. However, the Civil City of South Bend is .the owner of a certain portion of the parking lot adjacent to the Century Center building that is the subject of this Agreement (the Parking Lot), and.the South Bend Board of Public Works (BPW) is the City entity having control and supervision over the Parking Lot; and WHEREAS, The -CC Board supervises, manages, operates, and maintains Century Center, pursuant to an ordinance passed by the South Bend Common Council under Ind. Code §36-10-10-29; and WHEREAS, Southhold has constructed a Courtyard by Marriott hotel located at 121 Dr. Martin Luther King Jr. ;Drive ("the.. Hotel") .across the street from the Century Center facility that will enhance the marketability of Century Center, but the Hotel has very limited on -site parking, and in other nearby facilities, parking is also limited during normal workday hours; and WHEREAS, Southhold desires temporary access to the Property for the purpose of limited parking by bona fide employees of Southhold related to the use and operation of the Hotel; and WHEREAS, the CC Board and the BPW are willing to permit the access to and qualified use of the Parking Lot by bona fide employees of the Hotel subject to certain terms and conditions_ set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Grant of Parking Privilege, Commencement. Commencing as of March 1, 2018, the BPW grants to Southhold a temporary non-exclusive right on, in and across the Parking Lot for the sole purpose of parking by up to, but not more than, thirty (30) bona fide employees of Southhold at any time. This non-exclusive right to enter upon and use the Property for parking shall be during the scheduled working hours of said employees, and not at other times, nor for other purposes. The limit of thirty employees shall not mean per day, but rather that Southhold may designate a total of not more than thirty employees having such parking privileges, not all of whom may be parking at the same time. Said employees will not have specific reserved spaces, but shall park in a separate geographic area of the parking lot as shown in Exhibit A to this Agreement. 2. List of Users. Prior to Southhold's implementation of this Agreement, Southhold shall provide to CC Board's designated site Director a list of the names of each and all employee -users along with the year, make, model, and license plate number of each employee's vehicle, and Southhold shall update that list regularly and promptly provide it to the CC Board's designee whenever a change in the required information occurs. 3. Major Event Exception. It is acknowledged and understood by Southhold that during times when Century Center is the site of a "major event," the parking privilege and use under this Agreement is prohibited and shall not be exercised by Southhold's designated employees or by any other Southhold-affiliated person, unless the employee is participating in or attending the major event as a member of the public or invited guest; is not working for Southhold at the time of attendance; and pays the customary parking fee charged to the public, if any. A major event includes any activity involving a large attendance expected to use all or most of the Century Center parking lot. By way of example only, these may include a trade show, large banquet, wedding reception, a performance, a community -wide lecture, Martin Luther King Day activities, and other. The CC Board's designated Director shall provide Southhold with as much advance notice as possible of such event, and at least twenty-four (24) hours. It is estimated that there will be at least fifteen (15) such events per year, but probably not more than twenty-five (25). 4. Release and Indemnification. In consideration for authorization and approval by the Commission for Southhold's employees to enter upon and use the Parking Lot for that purpose, Southhold hereby agrees and undertakes to hold the Civil City of South Bend, Indiana, the South Bend Board of Public Works, and the Civic Center Board of Managers, the agents, contractors, employees, successors and assigns of each, free and harmless from any liability, loss, costs, damages or expenses, including attorney's fees, which the Civil City of South Bend, the South Bend Board of Public Works , and/or the Civic Center Board of Managers may suffer or incur, as a result of any claims or actions which may be brought by any person or entity arising out of the matters approved and granted herein by the BPW. If any action is brought against the City of South Bend, the South Bend Board of Public Works, or the Civic Center Board of Managers, the agents, contractors, employees, successors -and assigns of each, because of the parking by Southhold's employees, the undersigned agrees to defend such action or proceedings at its own expense and to pay any judgment rendered therein. 5. Southhold's Consideration. In further consideration for Southhold's use of the *.*CC.Marriott Employee Parking Agrmt. final 2 Parking Lot, and in lieu of monetary compensation. Southhold agrees to cooperate with. CC Board in affirmatively attracting convention business, other business opportunities, and in improving the economic impact of Century Center. upon the City. 6. Limitation of Rights and Termination of Agreement. Southhold understands and agrees that the use rights granted under this agreement are temporary and do not constitute either a lease. or an interest in the Property. Southhold further understands and agrees that the rights granted. under this Agreement shall terminate without further action by the Commission upon the earlier of (i) cessation of Southhold's operation of the Courtyard by Marriott Hotel (ii) occurrence of a force majeure; (iii) inability of The Board or the Commission to continue providing the privilege described in this Agreement in which latter event the Board or Commission will provide Southhold with as much. advance notice as possible, but not less than sixty (60) days, (iv) conversion, whether actual or imininent, of the Parking Lot or any portion thereof, into another or different development opportunity; or {) if Suthhold, lV[arzottor It In their sole and absolute discretion, the CC Board or the BPW may also terminate this Agreement upon the CC Board's or the BPW's determination that one or more of the following (each a "Termination Event") has occurred or is occurring: (a) Southhold breaches any term, provision, or obligation under this Agreement; (b) Southhold's use of the Parking Spaces violates any term or provision of this Agreement or applicable law; (c) Southhold's use of the parking area harms or endangers public health, safety, or general welfare (d) Century Center's operations would be adversely affected by continued effect of this Agreement. Following determination that a Termination Event has occurred, the CC Board's or the BPW will give Southhold written notice of termination in care of: Mr. Anant Patel, 247 Dixieway North, South Bend, Indiana 46637. 7. Repair. To the extent that any portion of the Property is disturbed in connection with the exercise of the privileges granted under this Agreement, Southhold shall restore the Property to the saine condition in which it was immediately prior to such disturbance to the satisfaction of the BPW. 8. Hazardous Substance. Southhold will not permit, knowingly or unknowingly, any Hazardous Substance to be brought or remain upon, kept, used, discharged, leaked, or emitted at the Parking Lot. For purposes of this Agreement, "Hazardous Substance" means, without limitation, any substance, chemical, material or waste, whether solid, liquid, gaseous or thermal, (i) the presence of which causes a nuisance or trespass of any kind; (ii) which is regulated by any Environmental Law as defined herein because of its toxic, flammable, corrosive, reactive, carcinogenic, inutagenic, infectious, radioactive, or other hazardous property or because of its effect on the environment, natural resources or human health and safety, including, but not limited to, petroleum and petroleum products, polychlorinated byphenyls, trichloroethylene, trichloroethane and other chlorinated industrial solvents, and a volatile organic compounds; or (iii) which is designated, classified, or regulated as being a hazardous or toxic substance, material, pollutant, waste (or a similar such designation) under any federal, state or 3 local law, regulation or ordinance, including under any Environmental Law such as the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. §9601 et seq.), the Emergency Planning and Community Right -to -Know Act (42 U.S.C. §11001 et seq.), the Hazardous Substances Transportation Act (49 U.S.C. §1801 et seq.), or the Clean Air Act (42 U.S.C. §7401 et seq.), or Indiana Environmental Legal Action statute (I.C. § 13-30-0, et seq.). For purposes of this Agreement, "Environmental Law" means, as amended and as now in effect, any and all federal, state, local, and foreign statutes, regulations, ordinances, and other provisions having the force or effect of law, all judicial and administrative orders and determinations, all contractual obligations, and all common law concerning public health and safety, worker health and safety, pollution, or protection of the environment, including, without limitation, all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any hazardous materials, substances, or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise, or radiation. 9. Compliance with Law. Southhold understands and agrees that it will, at its own expense, observe and comply with all present and future statutes, laws, ordinances, requirements, orders, rules and regulations of all governmental authorities. 10. Insurance. Southhold, at its expense, shall maintain during the term of this Agreement, commercial general liability insurance on the Property covering Contractor as the named insured and identifying the City of South Bend, Indiana, the South Bend Board of Public Works, and the Civic Center Board of Managers as an "additional insured" with terms satisfactory to the CC Board and the BPW and with companies qualified to do business in the State of Indiana, for limits of not less than $700,000.00 for bodily injury, including death resulting therefrom, and personal injury for any one (1) person in any one (1) occurrence, $5,000,000.00 for such injuries for all persons for any one (1) occurrence, $1,000,000.00 property damage insurance, or a combined single limit in the amount of $6,000,000.00. Notwithstanding the foregoing, Southhold shall, at all times, maintain said general liability insurance naming the City of South Bend, Indiana, the South Bend Board of Public Works, and the Civic Center Board of Managers as an "additional insured" for bodily injury, including death resulting therefrom and personal injury with limits sufficient to cover the City, the CC Board and the BPW's exposure to liability for said injuries, which amounts are set forth at Indiana Code § 34-13-3-4, as the same may be amended, superseded or recodified from time to time. 11. Assignment. Southhold may not assign this Agreement without first obtaining the BPW's written consent to such assignment, which the BPW may grant or withhold in its sole discretion. In the event the Company seeks the BPW's consent to an assignment of this Agreement, the Company will provide to the BPW any and all information reasonably requested by the BPW concerning the proposed assignee's identity, corporate existence, financial standing, or other matters relevant to the BPW's consideration. *,*CC.Marriott Pinployee Parking Agrmt. final 4 12. Parties Benefitted, The Civil City of South Bend, the CC Board, the BPW, and Southhold acknowledge and agree that this Agreement is for, the benefit of them and that there are no third -party beneficiaries of this Agreement. Nothing herein expressed or implied is intended to give or will be construed to confer upon any person other than the Parties hereto, and their permitted successors or assigns, any rights or remedies under or by reason of this Agreement. 13. Maintenance. Century Center staff shall be solely responsible for the routine, ordinary care and maintenance of the Parking Lot during this period of Southhold's employees' use. 14. Non -Discrimination, Southhold, for itself and its successors and assigns, agrees that during the term of this Agreement, Southhold shall not discriminate on the basis of race, color, creed, sex or national origin in the sale, lease, rental, use or occupancy of the hotel, 15. Indiana Law and Interpretation. This Agreement shall be governed by the laws of the State of Indiana, and any legal cause of action arising out of this Agreement shall be filed in a State court of competent jurisdiction for St. Joseph County, Indiana, unless otherwise directed by state or federal law. The parties, having mutually participated in the formulation and negotiation of this Agreement, this Agreement shall not be more strictly construed, nor shall ambiguities be resolved presumptively against any party hereto. 16. Legal Capacity. The undersigned person(s) signing on behalf of his/her respective Party certify that he/she is duly authorized to bind his/her respective Party to the terms hereof. IN WITNESS WHEREOF, the Parties have each executed this Agreement as of the date first written above. CITY OF SOUTH BEND, SOUTHHOLD, LLC DEPARTMENT OF PUBLIC WORKS Signature Printed lame and Title Anant Patel, Pres'>dent South Bend Board of Public Works Printed Name and'Ptle ATTEST: APPRUVRI) Wor Signature PrintedName and Title 4- Q.4 M- 5 South Bend Redevelopment Commission CIVIC CENTER BOARD OF MANAGERS ATTEST: Signature Signature Printed Marne and Title Printed Name and Tire *,*CC.Marriott Employee Parking Agant, final 6 7 EXHIBIT "A" Century Center Parking Lot Map Identifying Employee Parking Area *. *CC.Marriott Employee Parking Agrtnt. final BOARD OF PUBLIC WORKS AGENDA ITEM RE, VIEW REQUEST FORM Date Name February 5, 2018 Department Legal BPW Date February 13, 2018 Phone Extension 5866 R,,equi,req,"Prior ,to,'Submittal to Board Legal Attorney Name Clara McDaniels Controller review is requiired for all Contracts $5,000.00 or more Controller El and greater than one year in length per the City Purchasing Policy Purchasing F-1 N Agreement F-1 Professional Services ❑ Bid Opening F-1 Quote Opening E] Chg Order No. EJ Ease./Encroach. F-1 Other: Company or Vendor Name, New Vendor MBENVBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description ❑I Contract E] Proposal L] Addendum E] Amendment EJ Bid Award E] Req. to Advertise Title Sheet, El Quote Award F] C/O & PCA No. F] PCA n Traffic Control E] Resolution 7 Claim El Yes El If Yes, Approved by Purchasing F-1 No MBE Completed E-Verify Form Attached El Yes ❑ WBE 0 No Nlon-monetary {i.e., cooperate with Century Center Board in affirmatively attracting convention and other business opportunities). No set termination, date — cessation of Southhold's operation of the Courtyard by Marriott Hotel, forces majeure or inability to continue providing parking priviledge. Authorizes no more than 30 Southhold, employees to -park in City na lot aGowe4he-streef44q+i-the , Centu Far have Only Amount of F-1 increase R Decrease Previous Amount $ Current Percent of Change: _- % New Amount $ Total Percent of Change: % — Time Extension. Dispersal After Approval Copy Original