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HomeMy WebLinkAboutDedicated Improvements Agreements - Matthews 350 E LaSalle LLC - Commerce Center Right-of-Way Reconstruction1316 COUNTY —CITY BUILDING 227 W.JEFFERSON BOULEVARD SOI ITH BEND_ 1NDIANA 46601-1 930 4b U " if . as 1II� x CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR BOARDU LIC WORKS May 14, 2019 David Matthews Matthews 350 E LaSalle, LLC 401 E. Colfax Avenue South Bend, IN 46601 RE: Dedicated Improvements Agreement Dear Mr. Matthews: PHONE 574/235-9251 FAx 574/235-9171 The Board of Public Works, at its meeting held on May 14, 2019, approved the above referenced to ensure proper reconstruction of the City right-of-way at the Commerce Center. 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, *1141kd1Jj1 i.,r`� �+i t Linda M. Martin, Cle Enclosure GARY A. GILOT GENEVIEVE E. MILLER ELIZABETH A. MARADIK LAURA L. O'SULLIVAN THERESE J. DORAU COMMERCE CENTER DEDICATED IMPROVEMENTS AGREEMENT This Commerce Center Dedicated Improvements Agreement (the "Agreement") is made on this 26th day of March 2019 by and between the City of South Bend, Indiana, an Indiana municipal corporation (the "City"), acting by and through its Board of Public Works, and Matthews 350 E LaSalle LLC, an Indiana limited liability company with an address of 401 E. Colfax Avenue, South Bend, Indiana 46601 (the "Owner"), in order for the Owner to temporarily occupy and construct or re -construct dedicated improvements in the public right-of-way (the "R.O.W.") along Colfax Avenue, LaSalle Avenue, Sycamore Street, as well as to temporarily occupy and construct or re -construct dedicated improvements along that portion of certain property owned by the City for the benefit of the public, commonly known as the East Bank Trail ("East Bank Property"), adjacent to Owner's project site within the City's municipal boundaries (the "Project Area"). WHEREAS, the City holds title to the Project Area, including the R.O.W. and East Bank Property within the Project Area; and WHEREAS, Owner's project site is located at the property commonly known as The Commerce Center, 401 East Colfax Avenue within the City; and WHEREAS, in connection with Owner's project, Owner desires to tie into the existing sanitary sewer line in the R.O.W. at Colfax Avenue; and WHEREAS, Owner is working to acquire a permanent easement from the City allowing the installation of a concrete retaining wall within the LaSalle Avenue R.O.W. to allow air intake in to an underground parking structure, which structure shall include public parking spaces; and WHEREAS, pursuant to the City's municipal code, the City's Engineering Department has granted Owner a permit for the temporary occupancy and a partial temporary closure of the Sycamore Street R.O.W. and LaSalle Avenue R.O.W. in order to facilitate construction of Owner's project adjacent thereto; and WHEREAS, in connection with the drainage needs of Owner's project, Owner desires an easement from the City on the East Bank Property to use a portion of the retaining wall that abuts Owner's project site to facilitate a storm water outlet; and WHEREAS, Owner intends to repair and/or replace the retaining wall, sidewalks, trails curbs, lighting, landscaping, trees, and drive approaches and patch the roadway in the R.O.W. ("Dedicated Improvements") as more particularly set forth on ;U',xiiib t A, which is attached hereto and incorporated herein by reference, upon the completion of its temporary occupancy or use of or in the relevant R.O.W.; and WHEREAS, Owner desires the temporary occupancy and partial temporary closure of the R.O.W. or the East Bank Property from time to time in order to facilitate Owner's project and construct the Dedicated Improvements in the R.O.W. or on the East Bank Property; and NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, and the above recitals which are incorporated into this Agreement, the adequacy of which consideration the parties expressly acknowledge, Owner and the City agree as follows: 1. Construction Inspection The Owner has provided the City with Exhibit A, which depicts drawings of the Dedicated Improvements, which the City acknowledges conforms to the City's standards. The Owner shall allow the City to inspect the Dedicated Improvements during construction to ensure conformance to the agreed standards set forth in Exhibit A, in particular with regard to area planning, adequacy of design, and quality of construction. The Owner shall contact the City's Engineering Department at least two (2) business days in advance to arrange for the attendance of a City inspector at key milestones throughout work within the R.O.W. Key milestones shall include but not limited to: hot mix asphalt placement, placement of any drainage apparatus, concrete placement, light installation, and tree installation. The Owner agrees to perform any necessary adjustments as reasonably required by the City, in the sole discretion of the City Engineer or her designee, as a result of such inspections. The failure of Owner to comply with this Section 1 shall be a material breach of this Agreement. 2. Permits It shall be Owner's sole responsibility and expense to obtain all permits associated with the construction and installation of the Dedicated Improvements in the R.O.W. and to comply with all applicable laws. Owner's failure to comply with this Section 2 shall be a material breach of this Agreement. 3. Performance Bond Owner agrees to provide the City with a performance bond for an amount equal to one hundred twenty—five percent (125%) of the construction cost covering all work performed pursuant to this Agreement. 4. Maintenance Bond Owner agrees to provide the City with a maintenance bond equal to ten percent (10%) of the construction cost covering all work performed pursuant to this Agreement, and such bond shall remain in effect for three (3) years after dedication as described in Section 6 below. 5. Term This Agreement shall continue for a period of sixteen (16) months from the Effective Date of this Agreement, or upon the issuance of the relevant occupancy permit(s), whichever occurs last. 6. Dedication The Owner understands the dedication of the Dedicated Improvements to the City is a requirement for occupancy. Upon completion of the construction of the Dedicated Improvements, substantially as depicted in Exhibit A, the Owner shall use its best efforts to work with the City to ensure that the Dedicated Improvements are dedicated to the City in a timely manner. It is understood by Owner that no dedication shall be accepted by the City until all required easements have been conveyed, accepted, and recorded by the City. Additionally, prior to dedication, the following must be satisfied: a. All parts and labor must meet the requirements stated in the design specifications as presented to and approved by the City Engineering Department. b. Owner must provide copies of test reports or cut sheets on all materials supplied. c. Owner must provide As -Built drawings in accordance with the City of South Bend Prevailing Specifications for Public Works, which may be found at Amm« eti�tai� !1 It)aw(ls/2 1 / J/` „BN-SI e Stt iii1(I I: AI 01 _ �626. tsrB' scauMt �,__ti tic m. _. Owner's failure to comply with this Section 6 shall be a material breach of this Agreement. 7. Indemnification Owner shall indemnify, defend, and hold the City, and its respective agents, employees, successors, and assigns, harmless from any liability, loss, costs, damages or expenses, including attorneys' fees, which the City may suffer or incur as a result of any claims or actions which may be brought by any person or entity arising out of this Agreement. If any action is brought against the City or its respective agents, employees, successors, or assigns, in connection with this Agreement, Owner agrees to defend such action or proceedings at its own expense, using counsel acceptable to the City, and to pay promptly any judgment rendered therein. 8. Insurance Owner, at Owner's sole expense, shall maintain during the term of this Agreement, commercial general liability insurance covering the company and activity in the amount not less than Five Million Dollars ($5,000,000) per occurrence. Owner agrees to include the City as an additional insured on any such policy and produce to the City a certificate of insurance evidencing the same within ten (10) days of the execution hereof. To the extent that the City is harmed as a result of the construction of the Dedicated Improvements, Owner hereby grants the City first priority on any proceeds received from the Owner's insurance. Notwithstanding anything in the Agreement to the contrary, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 9. Assignment This Agreement may not be assigned by Owner, including through a Change in Control event, without the express written consent of the City which such consent may be withheld for any reason. A Change in Control event shall mean either (a) the merger of Owner into or with an unrelated third party entity, (b) a transaction or series of related transactions in which a third party becomes the beneficial owner of fifty percent (50%) or more of the membership units of Owner, or (c) the sale of all or substantially all of the assets of Owner. A violation of this Section 9 shall be a material breach of this Agreement. 10. Material Breach The parties agree that a material breach of this Agreement by Owner would have a material adverse effect upon the City. In the event of a breach by Owner of any of its obligations hereunder, the Owner shall cure such breach, if curable, within seven (7) days after written notice thereof from the City. Upon the failure by the Owner to cure any such breach, or if the breach is material and incurable, the City may immediately terminate this Agreement and call on the performance bond. 11. Governing Law and Jurisdiction This Agreement shall be construed and interpreted according to the laws of the State of Indiana and shall be enforced in any court of competent jurisdiction in St. Joseph County, Indiana. 12. Severability Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 13. Waiver No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. The waiver will not be construed to be a waiver of any succeeding breach of any such provision, a waiver of the provision itself, or a waiver of any other provisions of this Agreement. No delay or omission on the part of either party to exercise or avail itself of any right, power, or privilege that it has or may have under this Agreement will operate as a waiver of any breach or default 14. Time Time is of the essence of this Agreement. 15. Entire Agreement This Agreement sets forth the entire agreement and understanding between the Owner and the City as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them. 16. Corporate Authority The person signing on behalf of the Owner represents that he/she has been duly authorized to execute this Agreement on behalf of said Owner. (Remainder of page intentionally left blank) IN WITNESS WHEREOF, the Owner and the City, through their duly authorized representatives, have caused this Agreement to be executed as of the Effective Date. The parties have read and understand the foregoing terms of this Agreement and do, by their respective signatures hereby agree to its terms. MATTHEWS 350 E LaSalle LLC By David Matthews, Member CITY OF SOUTH BEND INDIANA BY AND THROUGH ITS BOARD OF PUBLIC WORKS Gary A. Gilot, President Ger 10'vev I. er, Member .aura L. O'Sullivan, Member Therese J. Dorau, Member 191k. Elizabeth A. +fkaradik, Member ATTEST: Linda Martin, Clerk of the B0 am dof Public Works H z w w 0 x a Q Q w � U G� � �W X Q W � W z w U W U W O U UN .y JXv]AY) IVAUl �M,P�lllI rEi N I.. ., O ......... .._...._Yd',�11W'1 b B RFA.7I�IIYUPD D imok- i (�. 'q�l^UUdJ P7 3 i M!O Ccql ' or ° dlG q{[ n �pCn 90 � t � r �• rj ry p�Yt k� n �wP" n R PR �nr pip AA " d at YR w v � 1 G i Per irR t fqI��P y�;f r� 1V^r s;. v.acT Mt P yG! E' "-roaly t Z� 72, n IT :I o ' 0 BB a q ym .mW I A 1 — --- ------ -- — ------------ pq--- .. 9--mwTw.o mno- IM YV,l0TAA',,1f1 1 ... ......... Fe . ..................................... ........ . ...... . . . .......... . ......... — A 4 q,11 dew igg 1" R, d g IN o9 r! 0 9 0 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 05/06/2019 Department Public Name Zach Hurst Works BPW Date 05/14/2019 Phone Extension 3057 uu�orcurammmrammmr nn,aanw�nrumaaax imuuiuiuimmmmmuiuiuiuiuiuiuiu��wwru� Required Prior to Submittal to Board _W ............. ..... ....ww__._......._................_... ... . .......... �._. BPW Attorney ❑ Attorney Name Dept. Attorney ® Attorney Name Sandi Kennedy Purchasing........__........_......_....__���__..........__.................................._�_w �_.��... El Check the Appropriate Item Type -- l equired fin- All Submissions Professional Services Agreement ❑ Contract E] Open Market Contract El Amendment/Addendum ❑ Bid Opening ❑ Bid Award ❑ Quote Opening ❑ Quote Award Proposal Opening C/O & PCA No. ❑ Chg. Order, No. ❑ Traffic Control ® Other: Dedicated Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Required Information LJ Proposal EI Special Purchase, QPA Req. to Advertise ❑ Reject Bids/Quotes [❑ PCA Resolution F1 Ease./Encroach ❑ Title Sheet Matthews LLC Yes If Yes A roved b Purc ....���� .. h.. .... PP Y sing �...... E] No ❑ MBE Completed E-Verify Form Attached ❑ Yes ❑ WBE ❑ No Commerce Center ....... . 119-030 Dedicated Improvements agreement between Matthews LLC_and City to ensure Tg ncr Igcg9r struction o C y rights -of -way. .. ... .... For C h,an c Orders Or l y mm Amount of Increase $ .. ... .... ..._..... �... ��....mmm. Decrease ($ ) Previous Amount $ ...........................�.�.�.�.�.�.�...................................................o Increase ��.�..�......................................................._� ,,,,,,,_A..� �o Current Percent of Change: Decrease ( %)m New Amount $ Increase % Total Percent of Change: �...... Decrease ( ........... %) Time Extension Amount: New Completion Date: