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Community & Economic Development
1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fax 574/235 -9021
To: South Bend Redevelopment Commission
From: Jitin Kain, Senior CED Specialist -W—
Subject: Data Realty Fagade Easement & Amendment to Use /Management Agreement
Date: April 19, 2012
In July 2011, the Commission approved the sale of Lot 4 at Ignition Park to Data Realty Northern
Indiana LLC which is currently building an approximately 50,000 sq.ft data center.
Data Centers are typically built as bunkers, however, Ignition Park is designed as a high tech, high
aesthetic park. There was a desire to see the first building designed and built to architectural
standards established for the park. As part of the contract for sale, the Commission agreed to
provide site improvements (paving, landscaping, lighting, etc) to the Data Realty site equal to the
amount of the fagade enhancement work performed by Data Realty up to an amount of $1,400,000.
The Fagade design was done by BSA LifeStructures, the firm responsible for the Master Plan of
Ignition Park. The initial estimates for the first design came in over budget so BSA was asked to
revise the Fagade design. Earlier this year, a design was submitted that was estimated to cost
$1,134,980. This design was later approved by the Architectural Review Committee for Ignition
Park.
A recent estimate of site improvement work at Data Realty was $400,000 which is significantly less
than the $1,134,980 estimated for the Fagade work. Therefore, in lieu of the site improvements,
staff is proposing the following combination to fulfill the Commission's commitment towards the Data
Realty project:
1. Fagade Improvement: Purchase metal panels and screenwall coverings for the approved
fagade design in the amount of $747,576. In order to do this, Data Realty would grant the
Commission a fagade easement for a term of 7 years.
2. Equipment Purchase: Purchase Computer Room Air Handler (CRAH) units for the data
center portion of the building in the amount of $387,404. In return the Commission would get
an additional 5 years worth of equipment rack space at Data Realty. Currently, the
Commission has the use of 5 racks for 15 years, the value of which is estimated at
$1,080,000.
The total of the above two items is $1,134,980 which is equal to the total estimate of the facade
work and is under the budgeted amount of $1,400,000 for this project.
Staff requests Commission approval of the attached Fagade Easement and Amendment to the Use,
Management and Operations agreement.
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FACADE EASEMENT AGREEMENT
This Facade Easement Agreement ("Agreement ") is made and given on the day of
April, 2012, by and between the South Bend Redevelopment Commission ("Grantee ") and Data
Realty Northern Indiana, LLC, an Indiana Limited Liability Company ( "Grantor ") (collectively
the "Parties ").
STATEMENT OF FACTS
A. Grantor is the owner in fee simple of the real property more fully described on the
attached Exhibit "A ", and has a commercial structure on it, located in Ignition
Park, in the City of South Bend, Indiana, hereinafter referred to as the "Building ".
B. Grantor is giving this Facade Easement (" Facade Easement ") to the Grantee to
assist in preserving and maintaining the designated character of Ignition Park.
C. The fayade of the Building which is the subject matter of the Facade Easement is
depicted and illustrated on Exhibit "B ".
D. It is the specific intention of the Parties hereto to exclude the interior and other
parts of the Building from this Facade Easement.
E. Grantor desires to give to Grantee and Grantee desires to accept the Facade
Easement.
Based upon the mutual promises contained herein, the Parties agree as follows:
Incorporation of Statement of Facts. The Statements of Facts are incorporated
into the operative provisions of this Agreement as if fully set out herein.
2. Consideration. In consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which by Grantor is hereby acknowledged,
Grantor hereby does give and convey to the Grantee a Facade Easement to the Building.
3. Term of Facade Easement. The original term of this Agreement is seven (7) years
from the date of execution.
4. Description of Facade Easement. It is agreed by and between Grantor and
Grantee the Fagade Easement as shown on Exhibit `B ", the design drawings of the fagade, is the
fagade that shall be constructed or installed on the Building, and the fagade to which this Fagade
Easement attaches.
5. Consents Required. The Grantor agrees to do (or refrain from doing, as the case
may be) each of the following:
a. The Grantor shall not demolish, remove or raze the fagade without the express
written consent of Grantee.
b. The Grantor shall not undertake or allow to be undertaken any changes to the
fagade including any of the following without the express written consent of the
Grantee:
Any change in the facade including the alteration, partial removal,
construction, remodeling or physical or structural change or change in
color or surfacing with respect to the appearance or construction of the
facade;
ii. Add any additional signs, canopies or plaques to the facade;
iii. Any significant reconstruction, repair, repainting or refinishing of the
designated feature that alters its state from the existing condition.
C. This subsection shall not include ordinary or necessary maintenance as covered
by Section 7 below.
6. Timing of Consent. Within thirty (30) days after Grantor requests in writing
permission of Grantee to make a change, written consent or refusal to allow the change shall be
delivered to the Grantor. In the event Grantee fails to make a decision relative to a request made
by Grantor within thirty (30) days of the request, the request will be deemed granted.
7. Maintenance. Grantor agrees that it shall perform ordinary maintenance on the
fagade to maintain its appearance and structural soundness and prevent any deterioration of the
facade. The Grantor shall not have to notify the Grantee maintenance is going to be performed.
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Grantor shall have no responsibilities relative to any defects in the installation of the fagade, or in
the materials which are utilized to construct the fagade since the Grantee is responsible for the
purchase of the materials for and the installation of the fagade.
8. Specification of Work. In the event Grantor is required to seek the consent of the
Grantee pursuant to Section 5 of this Agreement, the Grantor shall give the Grantee copies of the
plans, designs, elevations, specifications, and documents relating to the change or work,
including specification of all materials, colors and construction techniques to be used in any such
work and photographs of the subject area as it appears at the time of the request.
9 Insurance. Grantor, at its expense, shall (i) keep the premises insured under a
standard form of insurance policy against loss or damage resulting from fire and other perils
normally insured under a uniform standard extended coverage endorsement limited only as may
be provided in the standard form of extended coverage endorsement at the time in use in the
State of Indiana and (ii) carry and maintain comprehensive public liability insurance. The public
liability policy shall name the Grantee as an additional insured as to the fagade only and shall
provide for not less than thirty (30) days prior written notice to the Grantee by the insurer of any
proposed cancellation of any such insurance. The Grantor shall deliver to the Grantee a
certificate of insurance prior to the recording of this Fagade Easement and, on renewal, a new
certificate shall be sent to the Grantee.
10. Casual Damage. In the event that the Building or any part thereof shall be
damaged by fire or other casualty, then the proceeds of the insurance required to be carried
pursuant to Section 8 and Grantor's funds shall be applied to reconstructing the fagade
constructed under this Agreement. If the Building is damaged to such an extent Grantor
determines reconstruction is not feasible and provides the Grantee with a statement from an
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independent engineer to the same effect, then this Fagade Easement shall be void and of no
further force and effect, and any proceeds of insurance payable as a result of the destruction of
the fagade will be payable to Grantee.
11. Inspection. Grantor covenants representatives of the Grantee shall be permitted to
inspect the fagade from the street for the purpose of determining conformance with Fagade
Easement.
12. Grantee's Remedies. In the event of a violation of any provision of this
Agreement, the Grantee may, (i) upon thirty (30) days prior written notice to Grantor and (ii)
permitting Grantor an opportunity to take reasonable steps to cure any alleged violation, enforce
the Agreement. The Grantor shall reimburse Grantee for any reasonable costs or expenses
incurred in connection with the enforcement of the Agreement.
13. Runs With the Land. The obligations required by this Agreement shall be deemed
to run as a binding servitude with the property and the facade. This Agreement shall be binding
upon Grantor and the Grantee and all persons hereafter claiming any rights through the Grantor
and the Grantee and the word "Grantor" and "Grantee" when used, herein shall include all such
persons. Anything contained herein to the contrary notwithstanding, a person shall have no
obligation under this Agreement when the person has ceased to have any interest in the Building
or fagade by reasons of a bona fide transfer.
14. Notices. Any notice required under this Agreement shall be in writing and shall
be mailed, postage prepaid, by registered or certified mail with return receipt requested, or hand
delivered and receipted.
Company:
Richard Carlton
Data Realty Northern Indiana, LLC
1400 Angela Blvd.
South Bend, Indiana 46601
With copy to:
Glenn Killoren
Barnes & Thornburg
1" Source Bank Center
100 North Michigan
South Bend, IN 46601
Cnmmiccinn-
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
Aladean DeRose, Esq.
Interim City Attorney
City of South Bend, Indiana
1400 City- County Building
227 W. Jefferson Boulevard
South Bend, IN 46601 -1830
15. Recording. This Agreement shall be recorded in the Office of the St. Joseph
County, Indiana Recorder.
16. Transfer of Development Rights. Nothing contained in this Agreement shall be
interpreted to limit Grantor's right or ability to transfer any development or other rights which
may exist now or at any time in the future.
17. Condemnation. In the event that any governmental authority institutes a suit by
virtue of eminent domain, or other similar proceedings for any public or quasi - public or other use
against all or a portion of the fagade, this Agreement shall immediately terminate on that portion
of the property only.
18. Taxes. Grantor shall pay when due and owing, all real estate taxes, water charges,
sewer charges, and other charges, which may become a lien on the premises, provided, the
Grantor may make payment under protest where permitted by law.
19. Indemnify. The Grantor agrees that it shall defend, indemnify and hold the
Grantee harmless from and against any liability, claims, suits, demands, judgments (including
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costs, expenses and attorney's fees), resulting from actions or claims by third parties or defaults
under this Agreement by the Grantor arising out of the conveyance of or possession of this
Fagade Easement.
20. Headings. Section headings used in this Agreement are for convenience or
reference only and do not affect the meaning of provisions which they precede.
21. Public Access. The Grantor and Grantee agree the public shall have the regular
and substantial opportunity to view the designated feature from the sidewalk in front of the
building. The Grantor shall have no obligation to allow the general public to view the interior of
the Building.
22. Right to Use of the Premises. The Grantor reserves for itself, its successors,
assigns, mortgagees and lessees the right to continue to use and occupy the premises for all
lawful purposes not inconsistent with this Fagade Easement.
23. Amendment. For purposes of furthering the preservation of the facade and of
furthering the other purposes of this Fagade Easement and to meet the changing conditions,
Grantor and the Grantee are free to amend this instrument from time to time by mutual consent
in writing and such amendment shall become effective upon its signing.
24. Incorporation by Reference. Grantor agrees the restrictions contained in this
Agreement will be inserted by express reference in any subsequent legal instrument affecting the
premises.
IN WITNESS WHEREOF, on the date first shown above, Grantor and the South Bend
Redevelopment Commission have signed this Agreement.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
on
DATA REALTY NORTHERN INDIANA, LLC
By:
Richard Carlton, President /COO
Its Authorized Representative
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, a Notary Public in and for said County and State, personally appeared
Richard Carlton, President /COO of Data Realty Northern Indiana, LLC and acknowledged the
execution of the foregoing on the day of 12012.
My Commission Expires:
, Notary Public
Residing in St. Joseph County
CITY OF SOUTH BEND, DEPARTMENT OF
REDEVELOPMENT, by and through the
South Bend Redevelopment Commission,
its governing body
By: _
Printed:
Title:
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, a Notary Public in and for said County and State, personally appeared
of and
acknowledged the execution of the foregoing on the day of , 2012.
My Commission Expires:
Notary Public
Residing in St. Joseph County
THIS INSTRUMENT PREPARED BY: Richard A. Nussbaum, II, 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.
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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 ").
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EXHIBIT "B"
DEPICTION OF FACADE
Northeast Perspective
Northwest Perspective
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