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CONTRACT FOR PURCHASE AND SALE
This CONTRACT OF PURCHASE AND SALE (hereinafter "Agreement "), dated this
atok"- day of , 2011, between DATA REALTY NORTHERN INDIANA,
LLC (the "Company ") qd the SOUTH BEND REDEVELOPMENT COMMISSION (the
"Commission "), the governing body of the Department of Redevelopment of the City of South
Bend, Indiana, existing and operating under the provisions of Indiana Code § 36 -7 -14, as
amended;
WITNESSETH:
1. The Property. The Commission is the owner of record of land in the Ignition Park
Planned Unit Development ( "IPPUD ") with the legal description as follows:
See Exhibit "A"
Consisting of more or less 5.0 acres (the "Property ")
The Property is further depicted on the Minor Subdivision attached as Exhibit "B ".
The Commission has completed the disposition process under Indiana Code § 36 -7 -14-
22 and desires to sell the Property to the Company under the terms and conditions set forth
herein pursuant to Indiana Code § 36- 7- 14- 22(h).
2. The Purchase Price. The Commission shall convey the Property to the Company
in exchange for cash in the amount of One Hundred Thirty -one Thousand Two Hundred Fifty
and 00 /100 Dollars ($131,250.00), and the conditions contained in paragraph 6 of the Agreement
(the "Purchase Price ").
3. Conveyance of Property. The Commission hereby represents it is not aware of
any easements or encumbrances other than those of record. At Closing, the Commission shall
convey the Property to the Company by Limited Warranty Deed in the form set forth at Exhibit
"C" subject to the following:
(a) Applicable zoning laws and regulations;
(b) Seller will convey title to the Property subject only to real property taxes
not yet due and payable, all easements, conditions, reservations, leases,
licenses, access agreements and restrictions as may appear of record, be
apparent by an inspection of the Property, or of which the Company has
actual or constructive knowledge and to such other exceptions as may be
approved as provided below.
Following the execution of this Agreement, Company shall obtain, at
Commission's expense, (i) not later than thirty (30) days after the date of
this Agreement a title commitment ( "Commitment ") on the Property from
a title company reasonably acceptable to Company (the "Title Company "),
together with legible copies of all exceptions of record referenced therein;
and at Company's expense (ii) not later than sixty (60) days after the date
of this Agreement an ALTA survey of the Real Estate.
Company shall have thirty (30) days after receipt of (i) such Commitment
and legible copies of all exceptions referenced therein and (ii) the ALTA
survey of the Property within which to notify Commission, in writing of
Company's disapproval of any exceptions or other matters shown in any
of the foregoing ( "Company's Disapproval Notice "). If Commission shall
not have received any such notice of disapproval within the
aforementioned time period, the Commitment and the condition of title
shall be deemed approved.
In the event of any such disapproval, within seven (7) days after delivery
of Company's Disapproval Notice, Commission shall give Company
written notice ( "Commission's Title Notice ") of those disapproved titled
matters which Commission covenants and agrees to either eliminate from
the "Title Policy" or to ameliorate to Company's satisfaction by Closing.
If Commission does not elect in Commission's Title Notice to eliminate or
ameliorate to Company's satisfaction any disapproved title matters or if
Company disapproves Commission's Title Notice, Company shall have
the right, in its sole and subjective discretion, to either (i) terminate this
Agreement within fifteen (15) days after receipt of Commission's Title
Notice by written notice to Commission, or (ii) to waive any such
matter(s). If Commission does not eliminate or ameliorate to Company's
satisfaction all such disapproved matters prior to or at the Closing, then
Company shall have the right, to terminate this Agreement by written
notice to Commission. However, Company will be deemed to have
waived all such item if Company proceeds to close the transaction
provided herein.
Company, at Commission's expense, may obtain at closing an Owner's
Policy of Title Insurance reasonable acceptable to Company with such
endorsements as Company may designate insuring Company's interest in
the Property, subject only to approved (or waived) title exemptions, which
policy shall be issued by the Title Company with liability in the amount of
the Purchase Price. Such policy is herein called the "Title Policy." The
cost of issuance and all costs of all endorsements of the Title Policy in the
amount of the purchase price will be paid by Commission at Closing ; and
(c) The terms and conditions of the IPPUD.
As a government entity, the Commission is exempt from taxation under Indiana law, and
therefore, no taxes should have accrued against the Property while the Commission is the owner
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of the Property. The Company agrees to accept the Property under the above - described
circumstances and subject to the above - described restrictions and encumbrance provided that the
Commission provides the Company a title policy from Meridian Title Company (the "Title
Company ") showing that no taxes are due and owing on the Property.
4. Commission Obligations at Closing. At Closing, the Commission shall provide a
title policy (the "Title Policy ") from the Title Company acceptable to the Company insuring the
transfer of the Property to the Company in the amount of One Hundred Thirty -one Thousand
Two Hundred Fifty and 00 /100 Dollars ($131,250.00). Other than each party's respective
attorney's fees, the Commission shall pay all closing expenses and fees, which shall be
evidenced by a Closing Statement prepared by the Title Company and signed by the parties
hereto or their respective representatives at closing. The parties each represent that no real estate
commissions are due and owing to any party with respect to this transaction.
5. Closing Date and Deliverables. The Closing shall be held at a mutually agreed
upon location and time (herein referred to as the "Closing ") on a date which is not more than
thirty (30) days from the date of this Agreement or as otherwise agreed (the "Closing Date "). At
Closing:
(a) Commission shall deliver to the Company the duly executed and
acknowledged Limited Warranty Deed conveying the Property to
Company as provided in Paragraph 3.
(b) Company shall deliver to the Commission: (i) the cash portion of the
Purchase Price; (ii) a Certificate of Existence of the Company issued by
the Indiana Secretary of State's Office on the Closing Date or thirty (30)
days prior thereto, evidencing the Company is an Indiana corporation in
good standing under Indiana law; and (iii) evidence satisfactory to the
Commission the Company has performed or is capable of performing the
conditions set out in paragraph 6 of this Agreement, including the
recording of the Declaration of Easement described in 6(g).
(c) Possession shall be delivered at Closing.
(d) The parties shall pay all closing costs at Closing in accordance with
Section 4 and shall execute a Closing Statement evidencing such fees.
6. Company's Conditions and Use of Property. Except as otherwise provided
herein, the Company agrees:
(a) To purchase the Property "AS IS WHERE IS" and without any representations or
warranties as to the condition of the Property by the Commission and acknowledges that the
Commission, including any of its representatives, has not made any warranties or representations
of any kind relating to the Property or the condition or use thereof. The Commission shall,
within five (5) days after the execution of this Agreement, provide to Company any and all
environmental reports it has completed prior to the execution of this Agreement. In addition,
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Commission shall provide Company access to the premises in order for Company to conduct an
inspection before proceeding with this transaction to purchase the Property. The Company shall
conduct such inspection within sixty (60) days of the date of this Agreement, and by proceeding
to close this transaction the Company shall have completed to its satisfaction its own
investigation of the Property and has chosen to rely exclusively on its own inspections of the
Property. However, after the inspection of the Property and before Closing, Company shall have
the right, in its sole and subjective discretion, to either (i) terminate this Agreement by providing
Commission written notice of its decision to terminate; or (ii) waive any such matters which may
arise as a result of this inspection.
After Closing, the Company assumes liability for the condition of the Property from and
after the date of Closing. The Commission retains liability for the condition of the Property prior
to the date of Closing. Neither party is indemnifying the other regarding the condition of the
Property.
(b) Use the Property consistent with electronic data storage, transmission, and
disaster recovery purposes consistent with the IPPUD. This use shall be supported by the
construction of a no less than 45,000 square foot and no more than 55,000 square foot facility
consistent with the architectural guidelines of the IPPUD, with the capability of expanding an
additional 40,000 square feet.
(c) Convey back the Property to the Commission ( "the Reconveyance ") in the event
it (i) fails to obtain a Building Permit within six (6) months after the date of this Agreement
consistent with paragraph 6(b) above; and (ii) fails to develop the Property pursuant to paragraph
6(b) above within three (3) years of the date of this Agreement. As part of the Reconveyance,
the Commission will pay to the Company the cash amount of the purchase price herein.
In the event Company satisfies conditions (i) and (ii) above, the Commission shall
execute and record a release in a form reasonably satisfactory to Company contained in the
Limited Warranty Deed.
(d) Not discriminate on the basis of race, color, creed, sex, or national origin in the
sale, lease, rental, use or occupancy of the Property.
(e) Prior to the construction of any improvements on the Property, submit to the
Commission any and all design plans for approval by the IPPUD Architectural Design
Committee, whose approval will not be unreasonably withheld or delayed. However, the
Company further agrees to submit a design plan which will include a water feature and office
curtain wall as depicted in the illustration attached hereto and made a part hereof as Exhibit "D ".
The water feature and office curtain wall are hereafter known as "Enhancement Number I".
The Commission shall provide construction drawings, at its cost, for the super structure
canopy extensions and wrap- around to hide rooftop mechanicals as depicted on Exhibits "D -I"
and "D -2" hereafter known as "Enhancement Number 2 ".
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(f) The Company shall provide to the City without a charge for the rental of space for
a period of fifteen (15) years, five (5) "Racks" in the Company's facility. A "Rack" is defined as
"a nineteen inch (19 ") wide metal frame used to hold various hardware devices, such as servers,
hard disk drives, modems, and other electronic equipment for use with computers." The
Commission shall be responsible for any and all connectivity and utility costs incurred as a result
of the usage of the Racks. The Commission shall be permitted to allow third parties to utilize the
Racks which are being provided by the Company pursuant to this paragraph 6(f).
(g) By execution of this Purchase Agreement, the Company approves the filing of a
Declaration of Easement by the Commission in a form substantially similar to Exhibit "E"
permitting the City of South Bend access to the Property for purposes of the provision of
utilities, including but not limited to, water, sewer, dark fiber, telephone, electric, gas, and such
other utility services which are necessary to service the IPPUD.
(h) For the seven (7) year period from and after the date of Closing, the Company
shall not apply for or seek real property tax abatement as described in I.C. 6 -1.1 -12.1 et seq. and
further authorized by Article 6 of the South Bend Municipal Code. However, nothing prohibits
the Company from seeking an abatement regarding any additional improvement to the real estate
during the seven (7) year period immediately after Closing, or at any time from and after the
seven (7) year period after the date of Closing.
(i) The Commission shall maintain the Real Estate it owns adjacent to the Property by
mowing and planting such screening bushes and trees in order keep and maintain the Property
and the balance of the IPPUD in a reasonably attractive condition. In the event an Owner's
Association is formed as part of future Restrictive Covenants to be recorded in conjunction with
the IPPUD the maintenance responsibility will be assumed by such Owner's Association and the
costs of maintenance shall be allocated according to its by -laws.
7. Commission Obligations. The Commission acknowledges the requirement of the
Enhancements in paragraph 6(e) above are architectural features it has specifically requested,
and the Company would not otherwise have included in its design plans. The Commission
further recognizes the importance of Company's decision to locate its facility in Ignition Park, as
well as the right granted to Commission to use the Racks and backup power as described in
paragraph 6(f). Taking into consideration the Enhancements, the intended use of Company and
the extra amenities being provided to the City and future users of Ignition Park, all of which will
encourage additional development of Ignition Park, and the anticipated use of the remaining
property in the IPPUD, the Commission shall do the following:
(a) In recognition of the fact the Company and additional companies locating in the
IPPUD will require substantial electric power, the City is obligated to provide power to the
Property of not less than 9.6MW. The City shall take all reasonable actions, including but not
limited to, requiring American Electric Power ( "AEP ") and its affiliate, Indiana Michigan Power
Company ( "IMP ") (hereafter collectively the "Power Company ") to provide an Express Feeder
Line at the Power Company's cost from its Studebaker Substation to the Property. This Express
Feeder Line shall be installed through conduit supplied to the Commission by the City of South
Bend. In addition, the City shall take all reasonable actions, including but not limited to, the
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Power Company providing a Stand -By Power Source from the Power Company's Kankakee
Substation. Both the Express Feeder Line and the and Stand -By Power Source (also known as
"Alternative Feed Services ") shall at all times at no additional cost to Company have the
capability to provide to Company Nine and six - tenths Megawatts ( "9.6MW ") of electric power.
(b) In order to compensate Company for the Commission's requirement of the
Enhancement Number 1, the Company shall provide evidence reasonably satisfactory to
Commission of the cost of Enhancement Number 1 (ie: utilizing the Means Cost Estimating
Method and providing the specific references to unit prices of the base building separate from
Enhancement Number 1), and the Commission shall provide a list of proposed site amenities
listed on Exhibit "F" ( "Site Amenities "). Each Site Amenity shall be assigned a value, and the
Commission shall provide at Company's request the documentation for reaching such value.
The Commission and Company shall mutually agree upon and select Site Amenities whose value
is equal to or less than the value of the Enhancements. The Commission shall then provide at its
cost completion of those Amenities selected by the Company.
(c) The Commission shall provide, at its own expense, a generator (including switch
gear and transformers) reasonably satisfactory to Company on Company's property to be used as
a backup power source by the Company at this location. The City shall enter into a Use,
Operations and Management Agreement (which is identified as Exhibit H to this Agreement and
incorporated herein by reference) with Company on reasonable commercial terms which will
permit Company the exclusive right to use the backu. The Company will have the right to
purchase the generator from the City on the seventh (7t ) anniversary of the closing date of this
Agreement for the total purchase price of one dollar ($1.00), subject to any action required of the
Commission to dispose of property under State law.
(d) The Commission shall have an option in its absolute discretion at its cost to
design, bid, and construct, Enhancement Number 2. Company and Commission shall cooperate
with each other including their respective architectural and construction firms to complete the
construction of Enhancement Number 2.
(e) The Commission shall provide access to the Property by public right -of -ways
illustrated on Exhibit "G" (the Company's proposed building is cross - hatched).
(f) The Commission shall support any applications filed by the Company for: (i) a
personal property tax exemption for enterprise information technology equipment as described in
I.C. 6- 1.1- 10 -44.
(g) Upon written request from Company, and provided that the Company has
fulfilled its obligations in paragraph 6(c), Commission will provide a release of the
Reconveyance conditions of the limited warranty deed.
(h) The Commission will ensure the Dark Fiber Loop operated by the St. Joe Valley
Metro Net, Inc. will access the park and provide dual feeds to the Property at the outside
boundary line of the Property in locations satisfactory to Company. The Company shall be
responsible for all lateral feeds from the outside property line to the Company's building.
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W Company has been informed by the Commission it will record at some future date
Restrictive Covenants for the IPPUD. Company shall agree to be bound by such Restrictive Covenants so
long as they are in a form reasonable satisfactory to it so as not to unreasonably impair or restrict its use
of the Property.
8. Assignment. This Agreement may not be assigned by the Commission to any
other party without the written consent of the Company, which consent may be withheld for any
reason, except in the case of an assignment any entity of the City of South Bend or the
Commission or any entity in which the City of South Bend or the Commission have a controlling
interest or is the general partner, such consent shall not be unreasonably withheld. This
Agreement may not be assigned by the Company without the written consent of the Commission,
which consent may be withheld for any reason.
9. Entire Agreement. This Agreement embodies the entire agreement between the
parties and cannot be varied except by the written agreement of the parties. No representation,
promise, or inducement not included in this Agreement shall be binding upon the parties hereto.
10. Timiniz. Time is of the essence of this Agreement.
11. Notices. Any notices, requests, or other communications required or permitted to
be given hereunder shall be in writing and shall be either (i) delivered by hand, (ii) mailed by
United States registered mail, return receipt requested, postage prepaid, (iii) sent by a reputable,
national overnight delivery services (ie: Federal Express), or (iv) sent by facsimile (with the
original being sent by one of the other permitted means or by regular United States mail) and
addressed to each party at the applicable address set forth herein. Any such notice, request, or
other communication shall be considered given or delivered, as the case may be, on the date of
hand delivery (if delivered by hand), on the third (3`d) day following deposit in the United States
mail (if sent by United States registered mail), on the next business day following deposit with
an overnight delivery service with instructions to deliver on the next day or on the next business
day (if sent by overnight delivery service), or on the day sent by facsimile (if sent by facsimile,
provided the original is sent by one of the other permitted means as provided in this paragraph or
by regular United States mail).
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Company:
Richard Carlton
Data Realty Northern Indiana, LLC
1400 Angela Blvd.
South Bend, Indiana 46601
With copy to:
Glenn Killoren
Attorney at Law
ls` Source Bank Center
100 North Michigan
South Bend, IN 46601
Commission:
Donald E. Inks, Director
Department of Redevelopment
City of South Bend, Indiana
1200 City- County Building
227 W. Jefferson Boulevard
South Bend, IN 46601 -1830
With copy to:
Charles Leone, Esq.
City Attorney
City of South Bend, Indiana
1400 City- County Building
227 W. Jefferson Boulevard
South Bend, IN 46601 -1830
12. Binding Terms. All the terms and conditions of this Agreement are hereby made
binding on the successors and permitted assigns of both parties hereto.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana and venue for any action shall be St. Joseph
County, Indiana.
14. Binding Upon Execution. This Agreement shall not be effective or binding until
fully executed by all the parties.
15. Survival of Terms. This Agreement, including without limitation, paragraphs 6
and 7, will survive closing of the conveyance the Property and shall not be considered merged
into the deed or other documentation reflecting conveyance of the Property.
16. Partial Invalidity. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of
this Agreement shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.
17. Additional Documents. Each party shall execute and deliver to the other all such
other further instruments and documents as may be reasonably necessary to accomplish the
actions contemplated by this Agreement and to provide and secure to the other party the full and
complete enjoyment of its rights and privileges hereunder.
18. Negotiated Agreement. This Agreement was negotiated by the parties at arm's
length and each of the parties hereto has reviewed the agreement after the opportunity to consult
with independent counsel. Neither party shall maintain that the language in the Agreement shall
be construed against any signatory hereto.
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19. Construction of Terms. Words of any gender used in this Agreement shall be
held and construed to include any other gender, and words in the singular number shall be held to
include the plural, and vice versa, unless the context requires otherwise.
20. Authority to Execute. The undersigned persons executing and delivering this
Agreement on behalf of each of the parties respectively represent and certify that they are the
duly authorized officers of each and have been fully empowered to execute and deliver this
Agreement and that all necessary corporate action has been taken and done. The undersigned
persons executing and delivering this Agreement on behalf of the Company represent and certify
that (i) they are the officers of the Company duly authorized by a resolution of the Members to
purchase the Property and enter into this Agreement and (ii) that such action is consistent with
the Company's Articles of Organization, Operating Agreement, and prior Resolutions, and to the
extent that this Agreement or any obligation herein conflicts with said documents, the Company
by approving this Agreement shall deem such documents to be amended to allow for this
Agreement and any action or obligation contemplated or required hereunder. This Agreement
may be executed in duplicate or through counterparts.
(remainder of page intentionally left blank)
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EXECUTED in duplicate, each part being an original, as of the day and year set forth
above.
ATTEST:
Signature
Printed Name and litle
Printed:
Title:
ATTEST:
Signature
Printed Name and I We
Gibney \dataReal tyPUR8
DATA REALTY NORTHERN INDIANA, LLC
Z4 -
Richard Carlton, President/COO
Its Authorized Representative
CITY OF SOUTH BEND, DEPARTMENT OF
REDEVELOPMENT, by and through the
South Bend Redevelopment Commission,
its governing body
10
STATE OF INDIANA )
) SS:
ST JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this
day of , 2011, personally appeared Richard Carlton, its Authorized
Representative o Data Realty Northern Indiana, LLC and acknowledged execution of the
foregoing Contract for Purchase and Sale on behalf of said Company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
Notary u is
Resident of
My commission expires:
County, Indiana
11
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Jennifer H. H�uu/lfinger
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STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this
day of , 2011, personally appeared
and known to be the and ,
respectively, of the South Bend Redevelopment Commission, the governing body of the City of
South Bend, Department of Redevelopment and acknowledged execution of the foregoing
Contract for Purchase and Sale on behalf of said Commission and Department.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
Resident of the County, Indiana
My commission expires:
12
Notary Public
EXHIBIT A
Lot Numbered 4 as shown on the Ignition Park Second Minor Subdivision
recorded in the Office of the Recorder of St. Joseph County, Indiana, as
Instrument Number 1115569(the "Real Estate ").
EXHIBIT B
Site Plan
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EXHIBIT C
Deed for the Property
AUDITOR'S RECORD
Transfer No.
Grantee's Address and Mail Tax Statements to: Taxing Unit
Date
Property
Address:
Tax ID No.
LIMITED WARRANTY DEED
CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT,
The Grantor
Releases and Quit Claims to
DATA REALTY NORTHERN INDIANA, LLC,
The Grantee
For and in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt of
which is hereby acknowledged, the following described real estate in St. Joseph County, in the State of
Indiana, to wit:
Subject to the obligation of Grantee to convey back to Grantor the real estate pursuant to the
terms of paragraph 6(c) of the Contract for the Purchase of Real Estate executed by Grantor and
Grantee.
The Grantor herein and its successors shall warrant and defend the title to the real estate above - described
to said Grantee, its successors and assigns, against the lawful claims and demands of all persons claiming
by, through or under the said Grantor, but none other.
Signed and dated this
STATE OF INDIANA
ST. JOSEPH COUNTY
Before me, a
on the day of
day of , 2011.
SS:
Notary Public in and for said County and State, personally appeared
and acknowledged the execution of the foregoing Quit Claim Deed
, 2011.
My Commission Expires:
Notary Public
Residing in St. Joseph County
THIS INSTRUMENT PREPARED BY: Richard A. Nussbaum, Il, Attorney at Law, 5th Floor - Plaza
Building, 210 S. Michigan St., P.O. Box 300, South Bend, Indiana 46624.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security
number in this document, unless required by law - Richard A. Nussbaum, II.
EXHIBIT D
Data Realty Northern Indiana, LLC Building Illustration
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EXHIBIT E
Declaration of Utility Easement
DECLARATION OF UTILITY EASEMENTS
THIS DECLARATION OF UTILITY EASEMENTS ( "Declaration ") is executed this
day of July, 2011 by the SOUTH BEND REDEVELOPMENT COMMISSION (the "Commission"
or "Grantor "), the governing body of the Department of Redevelopment of the City of South Bend,
Indiana, existing and operating under the provisions of Indiana Code § 36 -7 -14, as amended, having
its principal place at 12'h Floor, County -City Building, South Bend, Indiana 46601.
For valuable consideration, Grantor does hereby grant unto The City of South Bend, a Utility
Easement as provided herein for the benefit of the City of South Bend, an Indiana Municipal
Corporation.
Statement of Facts
Grantor is the owner of property legally described as follows:
Lot Numbered 4 as shown on the Ignition Park Second Minor Subdivision recorded
in the Office of the Recorder of St. Joseph County, Indiana, as Instrument Number
1115569 (the "Real Estate ").
Grantor desires to establish a Utility Easement for the purpose of constructing and
maintaining utilities and drainage facilities over, under and across the real estate.
NOW, THEREFORE, Grantor hereby declares as follows:
1. Grantor, for the benefit of the Commission, the City of South Bend, the current and
future owners of the Real Estate, declares and grants a perpetual non - exclusive Easement for the
purpose of constructing, maintaining and reconstructing utilities including but not limited to electric,
water, telephone, fiber optics, drainage, sewer, and gas (collectively "Utility Services "). This grant
of Easement includes the right of any Grantee to utilize any Public Utility Companies in order to
carry out the intent of this Declaration of Utility Easements. The Easement herein granted includes
the right of ingress and egress to, from and over the Easement Premises for the purpose of
maintaining said utilities and drainage facilities.
2. Grantor, its successors and assigns, retain, reserve and shall continue to enjoy the use
of the surface of the Easement Premises for any purposes which do not interfere with or prevent the
use by Grantees of the Easements described in paragraph 1.
3. The Easements granted herein are subject at all times to Grantees' obligation to: (i)
restore the Easement Premises to substantially its condition prior to coming upon said Real Estate;
and (ii) refrain from interfering with the intended use of the Real Estate by Data Realty Northern
Indiana, LLC as defined in: (a) a Contract for Purchase and Sale of Real Estate executed between
Data Realty Northern Indiana, LLC and the Commission for the Real Estate; and (b) the Site Plan
provided Commission by Data Realty Northern Indiana, LLC depicting the initial and expanded
footprint of its building on the Real Estate.
In order to ensure the Easements granted herein do not interfere with the intended use of the
Real Estate by Data Realty Northern Indiana, LLC, permission shall be obtained from Data Realty
Northern Indiana, LLC for the specific location of the Easements granted which consent shall not be
unreasonably delayed or withheld taking into consideration the location of utility on -site laterals need
to take the shortest, most economical path from the public right -of -way over the Real Estate.
[SIGM 71TRE PAGE TO FOLLOW)
2
III WITNESS NVI-ICREOF, the Grantor has executed this Declaration as of the date and year
first above written.
CITY OF SOUTH BEND, DEPARTMENT OF
REDEVELOPMENT, by and through the
South Bend Redevelopment Commission,
its governing body
By:
Printed:
Title:
ATTEST:
stgnmWy.
Printed Name and rule
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a rotary Public for and in said County and State this day of
2011, personally appeared and
known to be the and , respectively, of the South
Bend Redevelopment Commission, the governing body of the City of South Bend, Department of
Redevelopment and acknowledged execution of the foregoing Contract for Purchase and Sale on behalf of said
Commission and Department.
LW WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
Resident of the
My commission expires:
County, Indiana
Notary Public
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number
in this document, unless required by law - Richard A. Nussbaum, II.
THIS INSTRUMENT PREPARED BY: Richard A. Nussbaum, H, Attorney at Law, 5th Floor - Plaza
Building, 210. S. Michigan St., P.O. Box 300, South Bend, Indiana 46624.
Gone dntanwttyWtihtyESMTB
EXHIBIT F
Site Improvements to be Provided by Commission
1. Storm water harvesting eliminating need for storm water retention on site
2. On -site utility laterals outside building
3. Parking lot and access for on -site circulation (passenger and truck)
4. Generator enclosure
5. Landscaping
6. Lighting
7. Cost of construction drawings for Enhancements No. 1.
8. Utility laterals from the outside boundary of the Property
DETAILS AND COSTS FOR SITE IMPROVEMENTS SHALL BE PROVIDED AS SOON AS
AVAILABLE AND PRIOR TO SELECTION BY PARTIES PURSUANT TO PARAGRAPH
7(b)
EXHIBIT G
Ignition Park Street Plan
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EXHIBIT H
Use, Operations, and Management Agreement for Power Generator
USE, MANAGEMENT AND OPERATIONS AGREEMENT
This Use, Management, and Operations Agreement ( "L'se Agreement ") is made and
entered into this day of
, 2011 by and between Data Realty
Northern Indiana, LLC (the "Company ") and the South Bend Redevelopment Commission (the
"Commission's the governing body of the Department of Redevelopment of the City of South
Bend, Indiana, existing and operating under the provisions of Indiana Code 6 36 -7 -14, as
amended (collectively the "Parties "),
Background
A. The Parties entered into a Contract for Purchase and Sale (`'Contract ") for
property located in the Ignition Park Planned Unit Development ( "IPPUD ") with
the legal description as follows:
See Exhibit A (the "Property ")
B. Company plans to build a data storage facility of not less than 45,000 square feet
and not more than 55,000 square feet which will utilize substantial electric power.
C. One of the attributes of the Property is the availability and reliability to access
electric power.
D. As part of the Contract for Purchase and Sale, Company is providing Commission
five (5) Racks as defined in the Contract in the Company's facility, and as a
further inducement for Company to locate in the Property, Commission shall
provide at its cost a Generator switch gear and transformers reasonably
satisfactory to Company on the Property to be used as a back up power source
pursuant to paragraph 6(f) and 7(c) of the Contract. A description of the
Generator is attached hereto as Exhibit `B" (the "Generator ").
NOW THEREFORE, for and in consideration of the mutual promises and covenants
contained herein and for all other good and valuable consideration the receipt of which is
mutually acknowledged, the Company and the Commission agree as follows:
1.
In of Background. The items in the background section shall be
incorporated into the operational provisions of this Agreement as if fully set out herein.
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2. Term of Agreement. The Term of this Agreement ( "Term ") shall commence as of
the closing date of the Contract ( "Closing Date ") and continue until the seventh (7a') anniversary
of the Closing Date. On the seventh (7a') anniversary of the Closing Date, Company shall have
the option to purchase the Generator for one dollar ($1.00) subject to compliance by the
Commission of all requirements of Indiana law for the disposition of Property.
3. Use, Operation and Management Responsibilities. During the term, the Company
shall have the exclusive use of the Generator subject to its sole obligation under this Use
Agreement to, including but not limited to, operational and maintenance responsibilities. Any
structural modifications which are necessary shall be the sole responsibility of Company.
4. Commission Cooperation on Warranty Claims. The Commission shall have no
repair or maintenance responsibilities for the Generator, but shall cooperate with Company to
submit claims based upon any warranties which are provided by the manufacturer or any
contractor or subcontractor who installs the Generator.
5. Compliance with Applicable Laws, Ordinances, or Repair of Damage. In the use
of the Generator, the Company shall not permit the violation of any applicable laws or
ordinances or permit the Generator to be damaged by its use. Any damage caused by the use of
the Generator (other than that due to defects or design flaws) shall be promptly repaired by the
Company at its sole expense in an acceptable, workmanlike manner, and in compliance with all
of the applicable zoning, fire code, building and health department statutes; ordinances, rules,
and regulations.
6. Insurance. The Company shall insure against loss to the Generator, and in the
event of a catastrophic failure or destruction of the Generator, will utilize the proceeds of
insurance to restore its use.
2
All of the insurance policies issued herein shall show the Commission as a named insured
as its interest may appear. All such insurance policies shall be written by companies authorized
to do business in the State of Indiana.
7. Utility Service. Company shall be responsible for the payment of all utilities
providing service to the Generator.
8. Indemnification.
A. The Company agrees to indemnify and hold harmless the Commission and the
City of South Bend and its respective officers, directors, duly authorized agents
and employees from any and all claims brought against them for personal injury,
death, property damage and any other losses, damages, charges, or expenses,
including reasonable attorney fees, which in connection with, or by reason of any
act, omission, or negligence of the Company or of any occupant, visitor or user
present on or about the Generator in connection with the Company's activities
pursuant to this Use Agreement.
B. The Company further indemnifies and holds harmless the Commission, its
officers, directors, employees and agents with respect to any claim or liability for
the loss or theft of or damage to the Generator.
9. Default and Remedies. In the event either Party hereto shall materially breach,
violate or fail fully to perform any term or provision contained in this Use Agreement; the non-
breaching Party may, upon thirty (30) days written notice thereof, terminate this Use Agreement,
provided however, the defaulting party shall have the right and opportunity to cure the default
within said thirty (30) day period or if such breach, violation or non - performance can not be
cured within a thirty (30) day period to begin diligently to effect such cure during such period.
In the event such breach, violation, or non - performance is not cured within said thirty- (30) day
period (or, as to defaults not curable within thirty (30) days, diligent efforts to effect a cure
during such thirty (30) day period have not begun), then this Use Agreement shall terminate
upon the expiration of such period and the non- breaching party shall thereupon have the right to
exercise such additional rights or remedies as it may have by law.
3
10. Notices. Any notices, requests, or other communications required or permitted to
be given hereunder shall be in writing and shall be either (i) delivered by hand, (ii) mailed by
United States registered mail, return receipt requested, postage prepaid, (iii) sent by a reputable,
national overnight delivery services (ie: Federal Express), or (iv) sent by facsimile (with the
original being sent by one of the other permitted means or by regular United States mail) and
addressed to each party at the applicable address set forth herein. Any such notice, request, or
other communication shall be considered given or delivered, as the case may be, on the date of
hand delivery (if delivered by hand), on the third (P) day following deposit in the United States
mail (if sent by United States registered mail), on the next business day following deposit with
an overnight delivery service with instructions to deliver on the next day or on the next business
day (if sent by overnight delivery service), or on the day sent by facsimile (if sent by facsimile,
provided the original is sent by one of the other permitted means as provided in this paragraph or
by regular United States mail).
Company:
Richard Carlton
Data Realty Northern Indiana, LLC
1400 Angela Blvd.
South Bend, Indiana 46601
With copy to:
Glenn Killoren
Attorney at Law
Barnes & Thornburg
1" Source Bank Center
100 North Michigan
South Bend; IN 46601
4
Commission:
Donald E. Inks, Director
Department of Redevelopment
City of South Bend, Indiana
1200 City - County Building
227 W. Jefferson Boulevard
South Bend, IN 46601 -1830
With copy to:
Charles Leone, Esq.
City Attorney
City of South Bend, Indiana
1400 City - County Building
227 W. Jefferson Boulevard
South Bend, IN 46601 -1830
11. Miscellaneous Provisions. The following general terms are made a part of this
Use Agreement:
A. This Use Agreement shall bind, and inure to the benefit of, the Parties and their
heirs, personal and legal representatives, and successors and assigns.
B. This Use Agreement shall be interpreted by the laws of the State of Indiana and
any venue for any action related to this Use Agreement shall be in the St. Joseph
County, Indiana Courts.
C, In the event of any Parties' failure to perform or observe any of the covenants,
terms or conditions in this Use Agreement, the defaulting Party shall pay the other
Parties' attorney fees, costs and expenses, including expenses of preparing any
notice of delinquency request for performance, whether or not any legal action is
instituted, including by reason of enforcing the non - defaulting Parties' rights
hereunder.
D. Any Parties' failure to enforce any of its rights or remedies upon the other Parties'
breach of any of the covenants, terms or conditions of this Use Agreement shall
not be deemed a waiver of those rights or remedies, not shall its failure bar or
abridge any of its rights or remedies upon any subsequent default.
E. If any covenant, term or condition of this Use Agreement is held invalid or
unenforceable by a court, the remaining covenants, terms or conditions shall not
be affected by such an occurrence. Each covenant, term and condition of this Use
Agreement shall be given effect and enforced against the breaching Party to the
fullest extent permitted by law.
P. This Use Agreement constitutes the entire Use Agreement between the Parties
and may not be modified except in writing; signed by both Parties. Any prior
understanding or representation of any kind preceding the date of this Use
Agreement shall not be binding on either Party except to the extent incorporated
in this Use Agreement.
G. The undersigned persons executing and delivering this Use Agreement on behalf
of each Party represent and certify they are duly authorized with authority to
execute this Use Agreement; they have the full legal right, power and authority to
enter into this Use Agreement and to grant the rights and perform the obligations
contained herein: to the extent any third party consent or approval is required to
grant such rights or perform such obligations hereunder those third party consents
or approvals will be obtained, but each Party may rely on this Use Agreement as a
valid and binding obligation, enforceable in accordance with its terms.
H. Phis Agreement may be executed in counterparts, each of which when taken
together shall constitute one and the same instrument.
ESIGN4TURES CONTAINED ON FOLLOWINU PAGE)
IN WITNESS WHEREOF, the undersigned on behalf of the Commission and the
Company execute this Use, Management, and Operations Agreement as of the day and year first
written above.
ATTEST:
fgmture
-Printed amp and it C
By:
Printed:
Title:
ATTEST:
rO Name Title
Gibnay1dK19Rea1tylmcAGR2
DATA REALTY NORTHERN INDIANA, LLC
Wis
Richard Carlton, PresidentI000
Its Authorized Representative
CITY OF SOUR BEND, DEPARTMENT OF
REDEVELOPMENT, by and through the South
Bend Redevelopment Commission, its governing body
7
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this
day of , 2011, personally appeared
and knoAm to be the and ,
respectively, of the South Bend Redevelopment Commission, the governing body of the City of
South Bend, Department of Redevelopment and acknowledged execution of the foregoing
Contract for Purchase and Sale on behalf of said Commission and Department.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
Notary Public
Resident of the County, Indiana
My commission expires:
STATE OF INDIANA )
) SS:
ST JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this
day of , 2011, personally appeared Richard Carlton, its Authorized
Representative of Data Realty Northern Indiana, LLC and acknowledged execution of the
foregoing Contract for Purchase and Sale on behalf of said Company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
Resident of the
My commission expires:
County, Indiana
6
Notary Public
Lot Numbered 4 as shown on the Ignition Park Second Minor Subdivision
recorded in the Office of the Recorder of St. Joseph County, Indiana, as
Instrument Number 1115569 (the "Property ").
lK
EXHIBIT "B"
[TO BE PROVIDED]
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