HomeMy WebLinkAboutAccess Easement - Fisher Matthews PLLC - Access to Dollar General Property1316 COUNTY-CH'y BUILDING
227 W. JEFFERSON BOULE.VARD
SOUTI I BEND. INDIANA 46601-1830
CITY OF Souri-i BLND PETE BUTTIGIEG, MAYOR
BOARD OF PUBLIC WOs_-
July 10, 2018
Rebekah Fisher
Fisher Matthews PLLC
414 Bridge Street
Franklin, TN 37064
RE: Access Easement
Dear Ms, Fisher:
PHONE 574/235-9,251
FAX 574/ 2359171
The Board of Public Works, at its meeting held on July 10, 2018, approved the access
casement in the amount of $10, for access to the Dollar General property at,6103 S.
Michigan Street
Enclosed please find the original of the access casement for your signature. Please sign and
return the original agreement to our office and retain a copy for your records.
If you have any further questions regarding this matter, please call this office at (574) 235-
925L
Sincerely,
Linda M. Martin, Clerk
GARY A. GILOT SUZANNA M. M7T713M., ELIZABF,,'i'ti A. MARADIK JAW"s A. MUELI'.EIZ Tf I F RFSF,J. DORAU
THIS INSTRUMENT PREPARED
BY AND WHEN RECORDED
RETURN TO:
FISHER MATTHEWS PLLC
414 Bridge Street
Franklin, TN 37064
Attention: Rebekah E. Fisher, Esq.
SANITARY SEWER EASEMENT
THIS SANITARY SEWER EASEMENT (the "Agreement") is made this 1Q day of
, 2018 by and between SOUTH BEND MICHIGAN STREET BTS RETAIL,
LLC, a Indiana limited liability company (hereinafter referred to as 'BTS"), and THE CITY OF
SOUTH BEND DEPARTMENT OF PUBLIC WORKS, a municipal corporation (hereinafter
referred to as the "City").
W>ITNESSETH:
WHEREAS, BTS is the owner of that certain tract or parcel of land lying and being in the
City of South Bend, St. Joseph County, Indiana, being more particularly described on
Exhibit "A" attached hereto and made a part hereof by this reference (hereinafter referred to as
the 'BTS Tract"); and
WHEREAS, BTS shall grant an easement to the City over an approximately fifteen foot
(15') wide portion of the BTS Tract to provide access to an existing sanitary sewer manhole
located in the US-31 right-of-way, near the northwest corner of the BTS Tract, as depicted on
Exhibit "B" attached hereto and made a part hereof; and
WHEREAS, BTS and the City desire to establish certain easements and rights benefiting
and burdening the BTS Tract and the parties, as hereinafter provided.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00), the
premises, the mutual benefits to be derived by the provisions of this Agreement, and other good
and valuable consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties hereto, BTS and the City do hereby covenant and agree as follows:
I. Benefited Parties/Binding Effect, The rights, easements and obligations
established in this Agreement shall be for the benefit of the parties and shall run with the land
and be binding upon the parties. The parties may delegate the right to use and maintain the
easement granted herein to its employees, agents, contractors and licensees, successors and
assigns.
2, Sanitary Sewer Easement in Favor of the_City. BTS hereby grants and conveys to
the City, a non-exclusive, perpetual easement, for the right to enter upon an approximately fifteen
foot (15') wide portion of the BTS Tract, being depicted on Exhibit "B" as the "Sanitary Sewer
Access Easement", to provide access to the existing sanitary sewer manhole located in the US-31
right-of-way, near the northwest corner of the BTS Tract.
3. No Interference. The City accepts this easement and right-of-way granted hereto
and covenants and agrees that in no event shall the City's activities prevent BTS from operating
its use on the BTS Tract.
4. Insurance. The City shall provide BTS with proof of personal injury/property
damage insurance in the form of a certificate of insurance in the amount of at least
$1,000,000.00/$1,000,000.00 from time to time upon request. The insurance set forth herein may
be carried in any combination of primary and excess liability policies so long as the total
insurance coverage meets the requirements of this Paragraph 4.
5. Indemnification. The City shall pay and protect, defend, indemnify and hold
harmless BTS, its successors, and assigns from and against any and all claims, demands,
liabilities, losses, lawsuits, judgments, settlements, damages, costs and expenses (including,
without limitation, attorneys' fees and costs) suffered or incurred by BTS, its tenants, agents,
servants, employees or invitees as a result of any personal injury, death, or property damage
arising from the negligent or willful acts or omissions of the City, its agents, servants or
employees during the City's use of the BTS Tract.
6. Extent of Liability. The City agrees that any claim against BTS shall be confined
to and satisfied only out of, and only to the extent of, BTS's interest in the BTS Tract, as such
interest is constituted from time to time. Nothing contained in this paragraph shall limit or affect
any right that any party might otherwise have to seek or to obtain injunctive relief or to
specifically enforce the rights and agreements herein set forth.
7. Duration. The provisions of this Agreement shall run with and bind the land
described herein and shall be and remain in effect perpetually to the extent permitted by law.
S. Severability. Any provisions of this Agreement which shall prove to be invalid,
void or illegal shall in no way affect, impair or validate any other provisions hereof and such
other provisions shall remain in full force and effect.
9. Miscellaneous. This Agreement shall be governed in accordance with the laws of
the State of Indiana. The paragraph headings in this Agreement are for convenience only, shall in
no way define or limit the scope or content of this Agreement, and shall not be considered in any
construction or interpretation of this Agreement or any part hereof. Nothing in this Agreement
shall be construed to make the parties hereto partners or joint venturers. No parry hereto shall be
obligated to take any action to enforce the terms of this Agreement or to exercise any easement,
right, power, privilege or remedy granted, created, conferred or established hereunder. This
Agreement may be amended, modified or terminated only in writing, executed and
acknowledged by all parties to this Agreement or their respective successors or assigns. Time is
of the essence of this Agreement.
[remainder of page intentionally left blank; signatures to follow]
-2-
IN WITNESS WHEREOF, BTS and the City have set their hands and seals as of the day,
month and year first above written.
BTS:
SOUTH BEND MICHIGAN STREET BTS
RETAIL, LLC, an Indiana limited liability company
By:_
Name:
Title:
STATE OF OHIO }
COUNTY OF CUYAHOGA }
Authorized Signatory
The foregoing instrument was acknowledged before me this day of
, 2018, by of SOUTH
BEND MICHIGAN STREET BTS RETAIL, LLC, an Indiana limited liability company, on
behalf of the limited liability company.
(Notary Seal)
Notary Public:
My Commission Expires:
-3-
STATE OF INDIANA
SS:
COUNTY OF ST. JOSFPH
CITY:
THE CITY OF SOUTH BEND
DEPARTMFNT flF PUBLIC WORKS, a
municipal corporation
f .PWork,
By:
Its:
Sworn to before me and subscribed in rn presence this /%' day ofGC G. y �, 20
by Cs P r4X' i) 1'e- r (a' � � �i'°` l the 13 o j/A61& 1z)vZer of THE CITY OF SOUTH
BEND DEPARTMENT OF PUBLIC WORKS„ a municipal corporation, who acknowledged the
same to be his/her tree act and deed and the free act and deed of the municipal corporation,
a. =80al
MARTIN
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bend)(sanitary),doc
_4-
EXHIBIT "A"
Legal Description of BTS Traci
THE FOLLOWING DESCRIBED LAND SITUATED IN ST. 30SEPH COUNTY INDIANA, TO WIT:
A PARCEL OF LAND IN THE SOUTHWEST QUARTER OF SECTION NUMBERED 36, TOWNSHIP 37
NORTH, RANGE 2 EAST, BOUNDED BY A LINE RUNNING AS FOLLOWS: BEGINNING AT A POINT
1,052.85 FEET NORTH AND 30 FEET EAST OF THE SOUTHWEST CORNER OF SAID SOUTHWEST
QUARTER OF SAID SECTION 36; THENCE EAST TO THE WEST LINE OF MICHIGAN ROAD A
DISTANCE OF APPROXIMATELY 237.65 FEET; THENCE SOUTHWESTERLY ALONG THE WEST
LINE OF MICHIGAN ROAD A DISTANCE OF 62.88 FEET; THENCE WEST 224.63 FEET TO A POINT
60 FEET SOUTH OF THE PLACE OF BEGINNING; THENCE NORTH TO THE PLACE OF BEGINNING,
AND BEING KNOWN AS LOT NUMBERED 8 AND THE SOUTH ONE-HALF OF LOT NUMBERED 7 AS
SHOWN ON THE UNRECORDED PLAT OF C.H. FLUEGEL'S PLAT.
ALSO, A PARCEL OF LAND IN THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 37
NORTH, RANGE 2 EAST, BOUNDED BY A LINE RUNNING AS FOLLOWS. BEGINNING AT A POINT
1,052.45 FEET NORTH AND 30 FEET EAST OF THE SOUTHWEST CORNER OF SAID SOUTHWEST
QUARTER OF SAID SECTION 36; THENCE NORTH 20 FEET; THENCE EAST TO THE WEST LINE
OF MICHIGAN ROAD; THENCE SOUTHERLY ALONG THE WEST LINE OF MICHIGAN ROAD A
DISTANCE OF 21 FEET; THENCE WEST TO THE PLACE OF BEGINNING, AND BEING KNOWN AS
THE NORTH ONE-HALF OF LOT NUMBERED 7 AS SHOWN ON THE UNRECORDED PLAT OF C.H.
FLUEGECS PLAT.
ALSO, ONE CERTAIN PARCEL OF LAND IN THE SOUTHWEST QUARTER OF SECTION 36,
TOWNSHIP 37 NORTH, RANGE 2 EAST, BOUNDED BY LINES RUNNING AS FOLLOWS, VIZ:
BEGINNING.AT A POINT 875.09 FEET NORTH AND 30 FEET EAST" OF THE SOUTHWEST CORNER
OF THE SOUTHWEST QUARTER OF SAID SECTION, TOWNSHIP AND RANGE; THENCE NORTH
117.09 FEET; THENCE EAST TO THE WEST LINE OF THE MICHIGAN ROAD AND NOW LOCATED;
THENCE SOUTHERLY ALONG THE WESTERLY LINE OF SAID ROAD 120 FEET; THENCE WEST TO
THE PLACE OF BEGINNING, AND BEING KNOWN AS LOTS NUMBERED 9, 10 AND 11 ON THE
UNRECORDED PLAT OF C.H. FLUEGEL'S PLAT.
EXCEPTING FROM THE ABOVE PARCELS: A PART OF LOTS 7 THRU 11, BOTH INCLUSIVE, IN
C.H. FLUEGEL'S UNRECORDED PLAT, A SUBDIVISION.IN THE SOUTHWEST QUARTER OF
SECTION 36, TOWNSHIP 37 NORTH, RANGE 2 EASTIN ST. JOSEPH COUNTY, INDIANA,
DESCRIBED AS FOLLOWS:. COMMENCING AT THE SOUTHWEST CORNER :OF SAID. SECTION.36;
THENCE NORTH 0021'30" WEST (DEDUCED FROM C.H. FLUEGEL'S UNRECORDED PLAT USING
THE 81=.RING NORTH 16°28' EASTTAKEN FROM STATE HIGHWAY.PROJEGT 10.(11), THIS AND
ALL SUBSEQUENT BEARINGS IN THIS [DESCRIPTION :BEING BASED ON THE SAME SYSTEM)
87.0.11 FEET (875;09 FEET FROM DEED RECORD 747, PAGE 49) ALONG THE WEST LINE OF.
SAID SECTION 36 TO A POINT 30.00 FEET (MEASURED AT. RIGHT ANGLES) WEST OF THE
SOUTHWEST CORNER OF SAID ,LOT 11; THENCE NORTH 89036'30° EAST 30.00 FEET TO THE
SOUTHWEST CORNER OF SAID LOT 11; THENCE NORTH 89036'30" EAST 179.87 FEET ALONG.
THE SOUTH LINE OF SAID. LOT 11 TO THE POINT OF'BEGINNING OF THIS DESCRIPTION, SAID
POINT OF BEGINNING BEING 5,0(1) FEET. (MEASURED AT RIGHT ANGLES). WEST OF THE
WESTERN BOUNDARY OF U.S, 31 THENCE ALONG A LINE IN SAID. LOTS 7 THRU 11, BOTH
INCLU5IVE,5.00 FEET WEST OF AND PARALLEL TO THE WESTERN BOUNDARY OF U.S. 31,
NORTHEASTERLY 185.05 FEET ALONG AN ARC TO THE LEFT AND HAVING.A RADIUS OF
3-771.81 FEET AND SUBTENDED. BY A LONG ;CHORD. HAVING A BEARING OF NORTH 11058'39"
EAST AND A.LENGTH 185.02 FEET; THENCE NORTH .23°21'05" WEST 18.02 FEET.TO A POINT
ON T.F E. NORTH LINE OF SAID LOT 7, AND SAID POINT ALSO BEING 15.00 FEET (MEASURED AT
T RIGHTANGLES) WEST OF THE WESTERN BOUNDARY OF U.S. 31; THENCE NORTH 89°37'131" . ,
EAST`15.26 FEET,ALONG THE NORTH LINE OF SAID LOT.7 TO THE WESTERN BOUNDARY OF
U.S. 31; THENCE ALONG THE WESTERN BOUNDARY OF U.S.. 31 SOUTHWESTERLY 201.84 FEET,
ALONG AN ARC TO THE RIGHT AND HAVING A RADIUS OF 3,776.81 FEET AND SUBTENDED BY
ALONG CHORD HAVING A BEARING.OF. SOUTH.11°44'06" WEST AND:A LENGTH Of 201.82
FEEL TO A POINT ON THE SOUTH LINE LINE OF: LOT 11 AND THE WESTERN BOUNDARY OF
U.S. 31; THENCE SOUTH 89036*30" WEST 5.47 FEET ALONG THE SOUTH LINE OF SAID LOT 11
TO THE POINT OF BEGINNING,
ALSO EXCEPTING; APART OF LOTS 7 AND 8:IN C.H. FLUEGECS UNRECORDED PLAT, A
SUBDIVISION IN THE SOUTHWEST QUARTER OF. SECTION 36, TOWNSHIP 37: NORTH, RANGE 2
EAST, ST. JOSEPH COUNTYVINDIANA, DESCRIBED ASTOLLOWS: COMMENCING.ATTHE.
SOUTHWEST.CORNER OF SAID SECTION; THENCE NORTH 1015'04" EAST 9$0.33 FEET.ALONG.
THE WEST LINE OF SAID SECTION TO THE PROLONGED. NORTH LINE OF.SAID LOT 7; THENCE
SOUTH 88044'56" EAST 17.52 FEET ALONG SAID PROLONGED NORTH .LINE TO THE
NORTHWEST CORNER OF: SAID LOT 7 A. ND THE P.OINT;OF BEGINNING OF THIS DESCRIPTION,
WHICH POINTOF BEGINNING IS ALSO ON THE.EAST BOUNDARY OF MAIN STREET, THENCE
CONTINUING SOUTH 88044'56" EAST 30.56 FEET ALONG THE NORTH LINE OF SAID LOT 7;
THENCE SOUTH 31048'09" WEST 59A1 FEET TO THE. WEST LINE OF SAID LOT 8, WHICH POINT
IS ALSO ON THE.FAST BOUNDARY OF MAIN STREET; THENCE NORTH 0040'01" EAST 50.90
FEET ALONG THE WEST LINE OF SAID LOTS 7 AND 8 TO THE POINT OF BEGINNING.
Property Address: 6103 S. Michigan Street, South Bend, St. Joseph County, Indiana 46614
Tax Parcel #: 023-1018-038602 and 023-1018-038604
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SHEE.TTITLIE: DATE: " II
AS pnyinecsHaq PROPOSED SEWER ACCESS EASEMENT 03/0912018
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW RE,QUEST FORM
Data June 19, 2018
Name
Carl Littrell
Department
DPW Engineering
BPW Date
June 26, 2018
Phone Extension
9149
Legal Attorney Name Clara McDaniels
Controller review is required for all Contracts $5,000.00 or more
Controller Ell and greater than one year in length per the City Purchasing
Policy
Purchasing F]
lH
Agreement
IH Contract
H Proposal Ll Addendum
El
Professional Services
0
Amendment
F] Bid Opening
F]
Bid Award
El Req. to Advertise E:1 Title Sheet
Quote Opening
F-1 Quote Award
Chg Order No.
E] c/o & PCA No.
❑ PCA
Ease./Encroach.
Traffic Control
❑ Resolution
Other: Grants Access
El Claim
Easement to City Across
Company or Vendor Name
New Vendor LJ Yes U If Yes, Approved by Purchasing
F-1 No
MBEANBE Contractor 0 MBE Completed E-Verify Form Attached
F-1 AAMC:
Project Name
Project Number
Funding Source
Account No.
Amount
Terms of Contract
Purpose/Description
Dollar General— Michiaan Street
DPO17-089
N/A
M
By this document the BPW accepts an access easement across
the Dollar General Property at 6103 S. Michigan Street
Amount of EI increase
E] Decrease
§11
R.
Previous Amount $
Current Percent of Change: %
New Amount $
Total Percent of Change: %
Time Extension:
Dispersal, AfterApproval
Copy Original
1:1 Z Fisher Matthews PLLC — 414 Bridge Street Franklin TN 37064
R 0 Attn: Rebekah E. Fisher, Esq.
El El