HomeMy WebLinkAboutProject Agreement - University of Notre Dame du Lac and FREG Stephenson Mill Assoc.PROJECT AGREEMENT
University of Notre Dame du Lac,
the City of South Bend, Indiana, by and through its Board of Public Works, Board of Park
Commissioners, and Redevelopment Commission
and
FREG Stephenson Mill Associates, LLC
1) PURPOSE
A. This Project Agreement (this " greenient") sets forth the terms and conditions by and among
the University of Notre Dame du Lac (the "Universit "), the City of South Bend, Indiana, acting
by and through its Board of Public Works, its Board of Park Commissioners, and its Redevelopment
Commission (collectively the "City"), and FREG Stephenson Mill Associates, LLC, a Colorado
limited liability company ("FREG EG Step 1pn5on"), as owner of Stephenson Mill Apartments located at
322 E. Colfax, South Bend, Indiana (the "Property"), regarding their mutual interest in facilitating (i)
a project for the construction by the University of a hydroelectric power generation facility to be
situated adjacent to the dam on the St. Joseph River owned by the City for the purpose of providing
renewable electric power for the University (the ' Univ rj1y F11Kj ct"), (ii) the restoration and
renovation of Seitz Park by the City (the "City Project"), and (iii) the replatting of the Property and
parcels adjacent to the Property to accommodate the foregoing ("flat" or "Replattint;" and together
with the University Project and the City Project, collectively the "Prat").
B. FREG Stephenson's current interests in the real property depicted on Exhibit A-1, attached
hereto, is currently comprised of (i) fee simple interest in Lot 1 of the Opelika Minor Subdivision; (ii)
an exclusive and perpetual easement in, and option to purchase portions of, the proposed Lot 1 and
Lot 2 of Seitz Park Minor Subdivision (" itz Park Subdivision"); and (iii) certain easement and
easement rights to use portions of the neighboring Lots 1-3 of the Cascade Minor Subdivision for
parking and access.
C. This Agreement will further address facilitation of (i) construction access during the Project,
(ii) tenant access and parking at the Property, on Lot 2 of the Seitz Park Subdivision and the East Drive
(as defined below), during and after completion of the Project, (iii) compensation to FREG Stephenson
in the event of negative financial impact to the Property (including leasing and business operations of
the Property) during and immediately following the Project and (iv) Replatting of the Property
resulting in (A) FREG Stephenson releasing its rights to Lot 1 of Seitz Park Subdivision and Lots 1-3
of the Cascade Minor Subdivision comprising approximately 0.58 acres as shown by cross -hatch -
marks on Exhibit B attached hereto (the "releaser Parcels"), and (B) the City conveying, for no
additional consideration from FREG Stephenson, (1) fee simple interest in Lot 2 of the Seitz Park
Subdivision free and clear of all liens, prior easements and other encumbrances, with the exception of
the utility easements shown on the Seitz Park Subdivision, (2) a shared, perpetual, non-exclusive
ingress and egress easement over a portion of Lot 1 of the Seitz Park Subdivision, as described in
Exhibit A-2, attached hereto, and (3) fee simple interest to FREG Central High Associates, LLC, a
Colorado limited liability company ("FREG Central Hi fit") in the real property and improvements
comprising the exclusive and perpetual easement in and option to purchase of Parcel 2 of 330 W.
Colfax, South Bend, Indiana, consisting of approximately 2.247 acres, and more particularly described
and depicted on Exbibit C attached hereto ("Parcel 2 of Central, l f islll"); all in accordance with the
terms and conditions of this Agreement.
2) CONVEYANCE; CLOSING
A. Exhibit A-3 to this Agreement is the proposed Replat for the parcels adjacent to the Property,
which such Replat has been approved by the Parties to this Agreement. The City further represents
and warrants that Wharf Partners, LLC, an Indiana limited liability company ("Wharf Partners"), and
owner of Lots 1-3 of the Cascade Minor Subdivision, has approved the Replat. Notwithstanding the
foregoing approval of the Replat, the Parties understand the same remain subject to the final review
and approval by FREG Stephenson's lender (" FRbG"s Lender"").
B. After final approval of this Agreement (including, without limitation, the Replat and the
Easement Termination Agreement [as defined below]) by FREG's Lender ("Lender Approval"), and
the filing of the Replat, at the Closing (as defined below), the University shall pay FREG Stephenson
the sum of $500,000 (the "Purchase ase Price") as consideration of the Replat and the termination of
FREG Stephenson's right, title and interest in and to the Released Parcels. The Replat requires review
and approval ("Replat Approval") from the plat committee of the Area Plan Commission of St Joseph
County ("APC").
C. Both the Released Parcels and the Property contain certain easements and easement rights for
Wharf Partners to use portions of the same for parking and access. The neighboring lot owned by
Wharf Partners also contains certain easement and easement rights for FREG Stephenson to use
portions of the same for parking and access. The City shall cause all of the foregoing easements and
easement rights to be terminated promptly after the recording of the Replat. The City shall also cause
the easements and easement rights related to Parcel 2 of Central High to be recorded concurrent with
the Closing. Such terminations shall be documented by the applicable form of easement termination
agreement set forth on [as h bit D attached hereto (the "basement `l"ennination A greernent"). The City
shall obtain any consent, signature or other necessary approval of the Wharf Partners to the Replat and
the applicable Easement Termination Agreement. Notwithstanding the foregoing, the Replat shall
continue to contain a shared, perpetual, non-exclusive, ingress and egress easement over a portion of
Lot 1 of the Seitz Park Subdivision for both FREG Stephenson and Wharf Partners, and their
respective successors, assigns, tenants, visitors, occupants and guests to use the same. Such shared,
perpetual, non-exclusive ingress and egress easement (including the maintenance, repair and snow
removal obligations related to the same, which shall be the sole obligation of the City) shall be
documented on the Replat.
D. Notwithstanding any other provision contained herein, express or implied to the contrary,
FREG makes no representations or warranties with respect to the physical condition or any other
aspect of the Released Parcels, including, without limitation, (i) the conformity of the Released Parcels
to past, current or future applicable zoning, building, subdivision, land use, health, safety,
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environmental or nondiscrimination laws, statutes, ordinances, rules, regulations, orders, codes or
other legal requirements or with any past, present or future documents of record, (ii) the existence of
soil instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides,
(iii) the sufficiency of any under shoring, (iv) the sufficiency of any drainage, (v) the existence or non-
existence of underground storage tanks, (vi) the potential for further development of the Released
Parcels, (vii) the existence of vested land use, zoning, building or other entitlements affecting the
Released Parcels, or (viii) the presence of toxic wastes, hazardous materials or hazardous waste in, on
or about the Released Parcels (collectively the "Released Parcels Prqpqqy Condit i ns"). Without
limiting the foregoing in any manner, the City and the University acknowledge that FREG Stephenson
has made no representations or warranties of any kind or nature concerning the Released Parcels
Property Conditions, and the City and the University acknowledge further that each party is relying
solely upon its own investigations and due diligence in regard to each and all such matters, and
assumes the risk that the Released Parcels may or may not be suitable or feasible for any intended use
by the City or the University. The City and the University each further expressly acknowledge that the
Released Parcels are being sold and accepted "AS IS, WHERE -IS, WITH ALL FAULTS" and are
being accepted without any representation or warranty. AS PART OF THIS AGREEMENT, THE
CITY AND THE UNIVERSITY HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE
ANY AND ALL ACTUAL OR POTENTIAL RIGHTS EACH PARTY MIGHT HAVE AGAINST
FREG STEPHENSON REGARDING ANY FORM OF WARRANTY, EXPRESS OR IMPLIED, OF
ANY KIND OR TYPE, RELATING TO THE RELEASED PARCELS, OR THE RELEASED
PARCELS PROPERTY CONDITIONS. SUCH WAIVER IS ABSOLUTE, COMPLETE, TOTAL
AND UNLIMITED TO, A WAIVER OF EXPRESS WARRANTIES, IMPLIED WARRANTIES,
WARRANTIES OF FITNESS FOR A PARTICULAR USE, WARRANTIES OF
MERCHANTABILITY, WARRANTIES OF HABITABILITY, STRICT LIABILITY RIGHTS,
AND CLAIMS OF EVERY KIND AND TYPE, INCLUDING, BUT NOT LIMITED TO, CLAIMS
REGARDING DEFECTS WHICH MIGHT HAVE BEEN DISCOVERABLE, CLAIMS
REGARDING DEFECTS WHICH WERE NOT OR ARE NOT DISCOVERABLE, PRODUCT
LIABILITY CLAIMS, PRODUCT LIABILITY TYPE CLAIMS, AND ALL OTHER EXTANT OR
LATER CREATED OR CONCEIVED OF STRICT LIABILITY OR STRICT LIABILITY TYPE
CLAIMS AND RIGHTS WITH REGARD TO THE RELEASED PARCELS. Effective upon the
Closing, and to the fullest extent permitted by law, the City and the University hereby release,
discharge and forever acquits FREG Stephenson, FREG Stephenson's manager and FREG's Lender
and their respective affiliates, officers, directors, shareholders, members, employees, agents and
independent contractors, and the successors, heirs, personal representatives and assigns of each and
every one of them, from all demands, claims, liabilities, obligations, costs and expenses which the
City or the University may suffer or incur relating to the Released Parcel Property Conditions or any
other aspect of the Released Parcels, whether known or unknown. The provisions of this section are
material and included as a material portion of the consideration given to FREG Stephenson in
exchange for FREG Stephenson's execution and delivery hereof and performance hereunder. The
provisions of this section shall not be construed to merge with the release of interest in the Released
Parcels and shall survive the Closing or any termination of this Agreement.
E. The transaction contemplated by this Agreement shall close (the "Closin ") on June 25, 2019
unless agreed otherwise in writing by the Parties.
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F. Prior to the Closing, the City and/or the University, as set forth in this Agreement, shall submit
(or cause to be submitted) into escrow with Fidelity National Title Insurance Company located at 8055
E. Tufts Avenue, Suite 300, Denver, CO 80237 (Attn: Lindsey Mann; Phone: (720) 200-1227, Email:
lip c1se .Inann ii)fin ;coni) ("Fidelity"), the following items (each of which shall be properly executed
by the applicable parties and notarized, if applicable):
(i) the Replat;
(ii) the Easement Termination Agreement executed and notarized by City and Wharf
Partners, LLC;
(iii) a Special Warranty Deed to FREG Stephenson for Lot 2 of the Seitz Park Subdivision;
(iv) a Special Warranty Deed to FREG Central for Parcel 2 of Central High;
(v) a Shared, Perpetual, Non -Exclusive Ingress and Egress Easement over a portion of Lot
1 of the Seitz Park Subdivision;
(vi) the Purchase Price; and
(vii) Such other documents or items as may be reasonably required by Fidelity to affect the
consummation of the transaction contemplated by this Agreement.
G. Prior to the Closing, FREG Stephenson shall submit (or cause to be submitted) into escrow
with Fidelity the following items (each of which shall be properly executed by FREG Stephenson and
FREG's Lender, if applicable, and notarized, if applicable):
(i) the Replat;
(ii) the Easement Termination Agreement executed and notarized by FREG Stephenson;
(iii) a release of mortgage/deed of trust by FREG's Lender for the Released Parcels only;
and
(iv) Such other documents or items as may be reasonably required by Fidelity to affect the
consummation of the transaction contemplated by this Agreement.
H. Unless set forth otherwise in agreements between the City and FREG Stephenson or FREG
Central, real estate taxes, special assessments and other assessments, ad valorem taxes, district
improvement impositions and the like with respect to the Released Parcels, Lot 2 of the Seitz Park
Subdivision, and Parcel 2 of Central High (collectively "Taxes") will be pro -rated on the basis of the
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fiscal tax period for which assessed (based upon the maximum discount rate available, if applicable).
Taxes shall be prorated at the Closing based upon the most recently issued bills therefor, and once the
final tax bill is issued, if the Taxes set forth in the final tax bill are different from the amounts used for
preliminary proration, then the proration will be recalculated using the final tax bill with any deficiency
or over payment reconciled and refunded or paid by the City, FREG Stephenson or FREG Central, as
the case may be. The obligations of this section shall survive shall the Closing or any termination of
this Agreement.
I. At the Closing, the City shall pay for: (i) the cost of an updated or new ALTA Extended
Coverage Owner's Policy of Title Insurance (each an "Owner's Policy") for (A) Lot 1 of the Opelika
Minor Subdivision, Lot 2 of the Seitz Park Subdivision and Shared, Perpetual, Non -Exclusive Ingress
and Egress Easement over a portion of Lot 1 of the Seitz Park Subdivision for FREG Stephenson, and
(B) Parcels 1 and 2 of Central High for FREG Central, each in the same insured amount and with the
same endorsements as the existing owner's policy for FREG Stephenson and FREG Central; (ii) the
cost of an updated or new ALTA Coverage Lender's Policy of Title Insurance (each a "Lender's
Policy") in such amount and such endorsements as reasonably required by FREG's Lender; (iii) all
transfer tax, stamp tax, deed tax, documentary fees or similar taxes imposed on account of the
recordation of the deeds or the transfer of Lot 2 of the Seitz Park Subdivision and Parcel 2 of Central
High; (iv) all recording fees; and (v) all escrow fees and closing fees of Fidelity related to these
transactions.
3) POST -CLOSING RESPONSIBILITIES OF THE PARTIES
A. Property Tenant Parkin
1. The City will cause not less than 26 free parking spaces (the "26 Free Parkin g
Spaces") to be provided at the site (318 E. Colfax, South Bend, Indiana) owned by
Wharf Partners and located nearby the Property or (in addition to the 25 Parking
Spaces, as defined in Section 3.A.2) within the existing parking lot adjacent to the
Property (the "Replacement 26 Parkip 5p4 5") for use by the Property's tenants and
as partial consideration for the reduction in the number of parking spots for the duration
of the Project. The location of the 26 Free Parking Spaces shall be in the area outlined
on Exhibits E attached hereto. Prior to the commencement of the University Project,
the University will, at its sole cost and expense, provide for reasonable pavement and
striping of the 26 Free Parking Spaces, in addition to adequate lighting of the 26 Free
Parking Space where necessary. FREG Stephenson will be responsible for general
winter care of the 26 Free Parking Spaces including, but not limited to, snow removal
and salting, but in no event shall FREG Stephenson by responsible for filling of any
pot holes, patching, resealing or other such costs.
2. In addition to the 26 Free Parking Spaces, a minimum of 25 parking spaces (the
"25 Parking! S of aces") will, at all times, remain available during the Project within the
existing parking lot adjacent to the Property comprised of Lot 2 of the Seitz Park
Subdivision and depicted on Exhibit -I attached hereto, as the same may be replaced
by the Replacement 26 Parking Spaces depicted on Exhibit F-2 attached hereto. Prior
to the commencement of the University Project, the University will, at its sole cost and
expense, build a "one-way" (from south to north) exit drive on the East side of the
Property in the location depicted on Exhibit G attached hereto (the "East Drive") to
allow for a more efficient flow of vehicle traffic with entry into the Property from
Colfax Avenue and exit from the Property using the East Drive. The East Drive shall
not be used by any construction vehicles, garbage trucks, or construction staff, or any
large vehicles and is intended by the used only for non-commercial light -weight
vehicles typically owned by residents, guests, vendors and invitees of the Property.
FREG Stephenson will be responsible for general winter care of the East Drive
including, but not limited to, snow removal and salting, but in no event shall FREG
Stephenson by responsible for filling of any pot holes, patching, resealing or other such
costs. FREG Stephenson agrees to execute a temporary easement or other document
reasonably acceptable to FREG Stephenson allowing reasonable modifications to
sidewalks and landscaping to facilitate construction of the East Drive as well as
vehicular access on both the east and west sides of the Property during the Project;
provided, however, that promptly after completion of the Project, the University shall,
at its sole cost and expense, be responsible for the removal of the East Drive and the
restoration of the area comprising the East Drive and other surrounding areas (including
any modifications made to the west side of the Property) to its prior condition including,
but not limited to, sidewalks and landscaping. The obligations of this section shall
survive shall the Closing or any termination of this Agreement.
3. Pursuant to City Board of Public Works Resolution No. 73-2016 and Section
20-3(a)(2) of the City Code of Ordinances, the City has established temporary parking
along Colfax Avenue. The City agrees to designate and mark 12 parking spaces on E.
Colfax Avenue as "Residential Permit Parking" (or similar designation as provided by
City) and depicted on Exhibit E attached hereto solely for the use and benefit of the
residents of FREG Stephenson during the term of the Project. The City will ticket
parking violators in the course of its regular parking enforcement efforts. If parking
violators become a chronic problem, then FREG Stephenson shall have the right to
have any parking violators towed at such owner's expense and the City shall cooperate
with FREG Stephenson to select a pre -approved tow company that will perform such
services upon FREG Stephenson's request.
B. Property Fa Madc Maintenance
1. The construction associated with the University Project and the City Project are
not expected to create significant dust or dirt from the Project worksite.
Notwithstanding the foregoing, an initial assessment of the condition of the Property's
building fagade has been performed by Keller Engineering, Inc. ("Keller") and is set
forth on Exhibit 1- attached hereto (the "Initial Asscsstnent"). Within thirty (30) days
of the completion of the University Project by the University and within thirty (30)
days of the completion of the City Project by the City, the same inspector that
performed the Initial Assessment shall be engaged at the cost of the University or the
City, as the case may be, to determine whether reasonable cleaning of the Property's
fagade is directly warranted due to the performance of the University Project or the
City Project, as the case may be. If such reasonable cleaning of the Property's fagade
is determined to be warranted then the University or the City, as the case may be, shall
complete the same no later than 60 days after the date of such determination. If the
University or the City, as the case may be, fails to timely complete the reasonable
cleaning of the Property's fagade, then FREG Stephenson may complete the same and
the University or the City shall reimburse FREG Stephenson for the cost of completing
the reasonable cleaning of the Property's fagade, plus a 15% administrative fee and
interest at 10% per annum if not paid within 20 business days after receipt of an invoice.
2. Additionally, the construction associated with the Project is not expected to
create significant vibration, impact, or other major physical disruption to the
surrounding environment or infrastructure. To establish a baseline to determine if any
such damage is caused as a result of the construction associated with the University
Project, FREG Stephenson shall provide a comprehensive set of photographs and
thorough video inspection, date -stamped within 10 days of Closing, that evidence in
sufficient visual detail the physical structure or integrity of the Property. In the event
of a claim by FREG Stephenson that the Project adversely impacted the physical
structure or integrity of the Property, it will notify the University and the City and
provide documentation to the University and the City of such claim and the adverse
impact upon discovery of the damage and the rationale for the proximate causation of
such damage by the Project to the University and the City and so long as the same does
not constitute an emergency that adversely affects the health, safety or welfare of
tenant's employees, customers, guests or invitees of the Property, or adversely affects
FREG Stephenson's ability to conduct normal business operations from the Property
(each, an "Emergency Situation"), then the Parties agree to consider and attempt to
resolve any such claims in an amicable, good faith manner. If the Parties are unable
to resolve any such claim within 30 days after FREG Stephenson's initial notification
of the same, or if there is an Emergency Situation, then FREG Stephenson may pursue
any and all remedies at law or in equity.
3. The obligations of this Section 3.13. shall survive shall the Closing or any
termination of this Agreement.
C. Compensation for Impaired Mental Revenues
1. During the period set forth in Section 3.C. 2 below, if the total income for the
Property collected by FREG Stephenson does not meet or exceed the baseline numbers
set forth on Exhibit I attached hereto (the "Income baseline"), then the University and
the City, as the case may be, will reimburse FREG Stephenson, on a quarterly basis,
for any reduction in income below the Income Baseline. FREG Stephenson will provide
documentation of the total income collected for the applicable quarter. During the
performance of the Project, FREG Stephenson will maintain a standard operating
environment with respect to maintenance and landlord -tenant interaction/relations and
will continue to provide services to tenants at a minimum at the level provided prior to
commencement of the Project.
2. The University's reimbursement obligation pursuant to Section 3.C.1. above
will only occur during the period of commencement of the University Project until six
months after the University Project is complete and the City's reimbursement
obligation pursuant to Section 3.C.1. above will only occur during the period of
commencement of the City's Project until six months after the City Project is complete
(each, a "Recovcy lcitl_d").
For purpose of clarity:
a) The University Project is anticipated to be complete within 12 months
after the Closing.
b) The City Project is anticipated to be complete within 12 months
following the completion of the University Project.
c) All construction under the Project will be deemed concluded once
normal traffic and access has been restored to the University site related to the
Project and Seitz Park, and the City has (i) repaved and restriped the parking
areas on the property owned by FREG Stephenson and (ii) rebuilt the trash
enclosure to match the condition depicted in Exhibit JJ attached hereto, which
includes 48 parking stalls directly south of the Property and 13 parking stalls
directly West of the Property as depicted on Exhibit K attached hereto and
comprised of Lot 2 of the Seitz Park Subdivision.
d) Notwithstanding anything to the contrary contained in this Agreement,
if the Project is not completed within 30 months after the Closing (the "Outside
Completion Date"), then the University or the City shall pay FREG
Stephenson additional consideration of $200.00 per day for each day from the
expiration of the Outside Completion Date until the Project is complete.
4. The provisions of this Section 3.C. shall survive the Closing or any termination
of this Agreement.
D. P ect Documentation,
1. FREG Stephenson shall allow the University to install not more than two (2)
cameras on the Property in locations determined by FREG Stephenson to document the
Project progress. Any such equipment shall be temporarily secured on the Property in
a manner that shall not create substantial or permanent damage or impact to the
Property. The University shall be responsible to FREG Stephenson for any damages
to the Property directly related to the installation, operation or removal of the camera(s).
The obligations of this section shall survive the Closing or any termination of this
Agreement.
4) NOTICE
All written notifications required hereunder must be sent via certified mail or overnight carrier to the
addresses designated below:
The University:
Associate Vice President, State and Local Public Affairs
University of Notre Dame
405 Main Building
Notre Dame, IN 46556
With a copy to:
Office of General Counsel
The City:
University of Notre Dame
203 Main Building
Notre Dame, IN 46556
Executive Director
Venues Parks and Arts
321 East Walter Street
South Bend, IN 46614
With a copy to:
Executive Director
and
Department of Community Investment
1400 County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
Corporation Counsel
1200 County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
FREG Stephenson:
FREG Stephenson Mill Associates, LLC
c/o Forum Management, Inc.
4500 Cherry Creek Drive South, Suite 550
Glendale, CO 80246
Attn: Luke Davis
With a copy to:
Fisher & Suhr, P.C.
1125 17th Street, Suite 710
Denver, Colorado 80202
Attn: Edie M. Suhr, Esq.
5) REIMBURSEMENT OF FEES
A. Concurrent with the execution and delivery of this Agreement, and predicated upon the
submission by FREG Stephenson of sufficient documentation thereof, the City shall
reimburse FREG Stephenson $ for attorneys' fees and costs incurred in
connection with the Project to date including, but not limited to, prior negotiations of the
Temporary License Agreement For Site Examination, any Memorandum of Understanding
and this Agreement. FREG Stephenson acknowledges receipt of payment of Five Thousand
Dollars ($5,000), which represents the fees required by FREG Lender to be submitted
concurrent with FREG Stephenson's request to review and consider this Agreement.
B. In addition to the closing costs to be paid by the City pursuant to Sections 2) H and 2) I. above
and the reimbursement obligations set forth in Section 4) A. above, the University agrees to
reimburse FREG Stephenson and FREG Central for (i) the cost for services provided by Keller
pursuant to Section 3)B.1., (ii) $6,000 for the cost of new appraisals required by FREG
Lender, and (iii) attorneys' fees or costs (including but not limited to additional lender fees
and costs) which exceed amounts already paid under this Agreement, incurred in connection
with closing the transaction contemplated by this Agreement.
6) MISCELLANEOUS
A. The Parties will coordinate press releases concerning the Project if any proposed statement
includes any reference to any other Party. To the extent possible, each Party shall provide
notice and advance copy of press releases to the public relations office of the other parties in
advance of public release.
B. The Parties agree and acknowledge that other construction in the vicinity of the Project not
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conducted by the University or the City shall not create obligations to the Parties pursuant to
this Agreement.
C. The Parties agree that they shall meet at least quarterly during the term of this Agreement
unless all Parties mutually waive such meeting, to review occupancy rates and the progress of
the Project.
D. This Agreement shall become effective when all Parties have signed and delivered it to the
other Parties. The date this Agreement is signed by the last Party to sign it (as indicated by the
date stated above that Party's signature) will be deemed the date of this Agreement. This
Agreement shall terminate upon completion of the Project or upon the mutual agreement of all
Parties, at which time the University and the City shall have no further obligation to FREG
Stephenson, except those that expressly survive the expiration or termination of this
Agreement.
E. This Agreement may be modified only by the written mutual consent of the authorized
representative of the Parties.
F. This Agreement shall be construed and governed according to the laws of the State of Indiana,
and any disputes arising hereunder that cannot be resolved amicably as set forth herein shall
be resolved exclusively in the State or Federal Courts seated in St. Joseph County, Indiana.
The Parties desire to streamline and minimize the cost of resolving such disputes. In any legal
proceeding, each Party irrevocably waives the right to trial by jury in any action, counterclaim,
dispute, or proceeding based upon, or related to, the subject matter of this Agreement. This
waiver applies to all claims against all Parties to such actions and proceedings. This waiver is
knowingly, intentionally, and voluntarily made by all Parties.
G. To the extent there is any legal action or proceeding between any of the Parties arising from
or based on this Agreement or the interpretation or enforcement of any provisions related
thereto, then the substantially prevailing party or parties shall recover from the substantially
non -prevailing party or parties all costs and expenses, including reasonable attorneys' fees and
costs, incurred by such substantially prevailing party or parties in such action or proceeding
and in any appeal in connection therewith. If such substantially prevailing party or parties
recovers a judgment in any such action, proceeding or appeal, then such costs, expenses and
attorneys' fees shall be included in and as a part of such judgment. The obligations of this
section shall survive shall the Closing or any termination of this Agreement.
H. Each Party represents and certifies that the undersigned person executing and delivering this
Agreement on its behalf is the duly authorized officer or representative of such Party, that he
or she has been fully empowered to execute and deliver this Agreement on behalf of such Party,
and that all necessary action to execute and deliver this Agreement has been taken by such
Party.
I. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon
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any person, firm, or corporation other than the Parties hereto and their respective successors or
assigns, any remedy or claim under or by reason of this Agreement or any term, covenant, or
condition hereof, as third -party beneficiaries or otherwise, and all of the terms, covenants, and
conditions hereof shall be for the sole and exclusive benefit of the Parties herein.
J. Neither the University nor the City may assign rights or obligations under this Agreement to
any third party without obtaining the prior written consent of FREG Stephenson, which may
be given or withheld in their sole discretion. FREG Stephenson may assign rights and
obligation under this Agreement to any purchaser of the Property or FREG's Lender.
K. The University shall indemnify, hold harmless and, if elected by FREG Stephenson, defend
FREG Stephenson and FREG's Lender and their respective officers, directors, partners, agents,
employees, parents, subsidiaries and affiliates, and each person who holds a direct or indirect
ownership interest in Forum or Owner (collectively the "Forum Parties") from and against any
and all claims, demands, liabilities, losses, damages, costs and expenses (including, without
limitation, reasonable attorney's fees and litigation expenses) arising out of or in connection
with: (i) bodily injury to or death of a person or damage to tangible personal property owned
by a third party to the extent arising or resulting from the negligent acts or omissions
(including, but not limited to, willful misconduct) of the University or any of its officers,
employees or authorized agents in respect of the Project; (b) the negligent acts or omissions
(including, but not limited to, willful misconduct) of the University or any of its officers,
employees and (c) a breach of this Agreement by the University or any of its officers,
employees or authorized agents. This indemnity shall not be construed to include claims,
demands, liabilities, losses, damages, costs and expenses to the extent arising from the
negligent acts or omissions of the City or the Forum Parties, their members, directors, officers,
employees or agents. The obligations of this section shall survive shall the Closing or any
termination of this Agreement.
L. The City shall indemnify, hold harmless and, if elected by FREG Stephenson Mill, defend the
Forum Parties from and against any and all claims, demands, liabilities, losses, damages, costs
and expenses (including, without limitation, reasonable attorney's fees and litigation expenses)
arising out of or in connection with: (i) bodily injury to or death of a person or damage to
tangible personal property owned by a third party to the extent arising or resulting from the
negligent acts or omissions (including, but not limited to, willful misconduct) of the City or
any of its officers, employees or authorized agents in respect of the Project; (ii) the negligent
acts or omissions (including, but not limited to, willful misconduct) of the City or any of its
officers, employees and (iii) a breach of this Agreement by the City or any of its officers,
employees or authorized agents. This indemnity shall not be construed to include claims,
demands, liabilities, losses, damages, costs and expenses to the extent arising from the
negligent acts or omissions of the University or the Forum Parties, their members, directors,
officers, employees, invitees, or agents. Notwithstanding the foregoing or anything in this
Agreement to the contrary, the City does not waive any governmental immunity or liability
limitations available tp it under Indiana law. The obligations of this section shall survive shall
the Closing or any termination of this Agreement.
M. Concurrently with the execution of this Agreement, and thereafter upon renewal of such
12
policies, the University shall deliver to FREG Stephenson certificates evidencing the
University's commercial general liability insurance, automobile liability insurance and
workers compensation insurance, with limits of liability as currently maintained by the
University shall also add the Forum Parties as additional insureds under these policies. The
University agrees that insurance will not be canceled without 30 days' prior written notice to
FREG Stephenson (unless cancellation is due to non-payment in which case only 10 days'
prior notice will be given).
N. If any term, covenant or condition of this Agreement or the application thereof to any person
or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term, covenant or condition to a person or circumstance
other than those as to which it is held invalid or unenforceable, shall not be affected thereby.
Each term, covenant or condition of this Agreement shall be enforced to the fullest extent
permitted by law.
O. This Agreement embodies the entire agreement and understanding between the Parties with
respect to its subject matter and supersedes all prior agreements and understandings, written
and oral, between the Parties related to that subject matter.
P. Time is of the essence in the performance of this Agreement.
Q. This Agreement may be signed and delivered by facsimile or electronically and the same
facsimile or "pdf 'signatures shall constitute original signatures hereof with all force and effect
of law. This Agreement may be executed in counterparts, each of which will constitute an
original and all of which together shall constitute one and the same document.
[SIGNATURE PAGE FOLLOWS]
13
UNIVERSITY OF NOTRE DAME DU LAC
Nanic:
Title:
Date Signed:.
14
FREG STEPHENSON MILL ASSOCIATES, LLC,
a Colorado limited liability company
By: Forum Management, Inc.,
a Colorado corporation, its Manager
By:
Name:
Title:
Date Signed:
15
CITY OF SOUTH BEND INDIANA
BOARD OF PUBLIC WORKS
Gary Gil `t, President
Therese 1 orau, Me....�.. ........._._.._._.
e�
Elizabeth Maradik, Member w—mw
Genevieve Miller, Member
Laura O'Sullivan, Member
Atte 't;
a.
..,Lirlla Martin, C1 m i
Date Signed: 5��0
16
SOUTH BEND
BOARD OF PARK COMMISSIONERS
Mark Neal, President
Consuella Hopkins, Vice President
Dan Farrell, Member
Aimee Bucellato, Member
ATTEST:
Eva Ennis
Date Signed:
17
SOUTH BEND REDEVELOPMENT
COMMISSION
Marcia I. Jones, President
ATTEST:
Quentin Phillips, Secretary
Date Signed:
18
EXHIBIT A-1 -DEPICTION OF SEITZ PARK MINOR SUBDIVISION
(SEE ATTACHED 2 PAGES)
Al-T-AVACS-M.1
STEPHENSON TM1 APARTMENTS - 322 LAST COLFAX AVENUE, SOUTH BEND, INDIANA 46601
LOT NUMBERED ONE (1) AND LOT NUMBERED TWO (2) AS SHOWN ON THE RECORDED PLAT OF' -OPEl..u.(A KIINOR
EjjEDDFVISK) N" RECORDED AS DOCUMENT #9341007 IN �THE OFFICE OF THE RECORDER OF ST JMSEPH COMM INDIANA
AND A PAPP OF TI I E NORTHWEST QUARTER OF SECTION IS, TOWNSHIP 37 NORTH, RANGF, 2 EAST, PORTArE
TOWNSHIP, CITY OF SOUTH SEND, ST. JOSEPH COUNTY, INDIANA
COLFAX AW.NUF '0V1ESS I1-5 HIGHWAY 20)
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STIBIPME I' SON MILI. APARTMENTS3P2 EAST' COLFAX AVENUE'
SOUTH BEND, INDIANA 46601
LOT M15NOEREID ONE (1) AND I-X)T NUMTWO
O (2) AS SHOWN ON THE RECORDED PLAT OF 'CPF'[�JKA MINOR
SUBMISION" RECORDED AS DOCUMENT #%WbIV? IN THE OFFICE OF THE RECORDER OF ST, JOSFEPH COUNTY, INDIANA
AND A PART OF THE NORTHWEST WAR K OF SECHON 12, TOWNSHIP 37 Nu, RANGE 2 EAST, PORTAGE
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SOUTH BEND, ST JOSEPH COUNTY, INDIANA
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EXHIBIT A-2 - LEGAL DESCRIPTION OF EASEMENT AREA
A PART OF THE NORTHWEST QUARTER OF SECTION 12, TOWNSHIP 37 NORTH, RANGE 2 EAST, CITY OF
SOUTH BEND, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA AND BEING MORE PARTICULARLY
DESCRIBED AS: BEGINNING AT THE NORTHEAST CORNER OF LOT # 3 IN THE PLAT OF "CASCADE MINOR
SUBDIVISION" AS RECORDED AS DOCUMENT NUMBER 1808428 IN THE RECORDS OF THE ST. JOSEPH
COUNTY, INDIANA RECORDER'S OFFICE; THENCE SOUTH 89°54'00" EAST, ALONG THE SOUTH RIGHT-OF-
WAY LINE OF COLFAX AVENUE, A DISTANCE OF 19.00 FEET; THENCE SOUTH 00"56'55" EAST, A DISTANCE
OF 123.85 FEET; THENCE NORTH 89'03'05" EAST, A DISTANCE OF 5.00 FEET; THENCE SOUTH 00'56'55"
EAST, A DISTANCE OF 213.21 FEET; THENCE SOUTH 89°55'28" WEST, A DISTANCE OF 24.00 FEET; THENCE
NORTH 00°56'55" EAST; A DISTANCE OF 336.94 FEET TO THE POINT OF BEGINNING.
CONTAINING 0.17 ACRES MORE OR LESS.
SUBJECTTO ALL LEGAL RIGHTS -OF -WAY, EASEMENTS, AND RESTRICTIONS OF RECORD.
EXHIBIT A-3 - PROPOSED REPLAT
(SEE ATTACHED 3 PAGES)
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EXHIBIT B-DEPICTION OF THE RELEASED PARCELS
(SEE ATTACHED 1 PAGE)
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EXHIBIT C-LEGAL DESCRIPTION OF PARCEL 2 CENTRAL HIGH
LOT NUMBER TWO (2) OF THE RECORDED PLAT OF "CENTRAL HIGH ASSOCIATES MINOR
SUBDIVISION" RECORDED AS DOCUMENT NO. 9408747 IN THE RECORDS OF THE ST.
JOSEPH COUNTY, INDIANA RECORDER'S OFFICE AND BEING MORE PARTICULARLY
DESCRIBED AS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 1 OF SAID SUBDIVISION; THENCE
SOUTH 000 01' 34" WEST, 313.76 FT.; THENCE SOUTH 890 58' 26" WEST, 172.35 FT.;
THENCE NORTH 000 01' 34" EAST, 42.66 FT.; THENCE NORTH 890 57' 21" WEST, 197.41 FT.
TO THE EAST LINE OF WILLIAM STREET; THENCE SOUTH 000 00' 00" WEST ALONG SAID
EAST LINE 91.15 FT. TO THE NORTH LINE OF WASHINGTON STREET; THENCE SOUTH 890 48'
08" EAST ALONG SAID NORTH LINE, 430.07 FT. TO THE WEST LINE OF ST. JAMES COURT;
THENCE NORTH 000 01' 34" EAST ALONG SAID WEST LINE, 411.05 FT. TO THE SOUTH LINE
OF COLFAX AVENUE; THENCE NORTH 890 43' 16" WEST ALONG SAID SOUTH LINE, 430.26
FT. TO THE EAST LINE OF WILLIAM STREET; THENCE SOUTH 000 00' 00" WEST ALONG SAID
EAST LINE, 206.31 FT.; THENCE SOUTH 890 57' 21" EAST, 145.29 FT.; THENCE NORTH 060
01' 09" EAST, 13.57 FT.; THENCE NORTH 000 02' 39" EAST, 34.30 FT.; THENCE NORTH 890
58' 26" EAST, 50.83 FT.; THENCE NORTH 000 01' 34" WEST, 109.01 FT.; THENCE NORTH 890
58' 26" EAST, 172.36 FT. TO THE POINT OF BEGINNING.
(ALSO SEE ATTACHED 2 PAGES)
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22
A LIAZA-CN-1AN-9 1, 1 MEL, UJ&-Vrt,'X
CENTRAL HIGH APARTMENT COMPLEX 317 WEST WASHNNGTON STREET, SOUTH MIND, INDIANA 40601
LOT NUMBRRED ONE (1) ANE LOT NUMBERED TWO (2) AS SHOWN ON THE RECORDED PLAT OF -CENTRAL HIGH
ASSOCKATrS KITNOR SUBDIVISION' RECORDED AS DOCUYIF,,4r 69408747 IN THE OFFICE OF THE RECORDER OF ST,
JOSE.PH COUNTY, INDIANA AND A PANT OF VIP NORTHWEST QUARTER OF SEMON U, TOWNSHIP 37 NORTH, RANGE
2
FAST, PORTAGE TOWNSHIP, CITY OF' SOUTH REND, ST, JOSEPH COUNTY, VNDMNA
SEE KIEV' 2 OF 2 FOR
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ASSOCIATE'S MINOR'SUBDIVISION" RECORDED AS OOCUMENT ,¢9dOC4747 IN 'CHE OFFICE OF THE RECORDER OF S'B.
JOSEP" COUNTY, INDIANA AND A PART OF THE 'NORTHWEST QUARTER OF SECTION 11, TOWNSHIP 37 NORal, RANGE 2
EAST, POILCA eE TOWNSIRP, CITY OF SOIUH BEND, Or JOSEP➢T COUNTY, MDLANA.
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EXHIBT D-EASEMENT TERMINATION AGREEMENT
(SEE ATTACHED 8 PAGES-STEPHENSON MILLS)
(SEE ATTACHED 9 PAGES -CENTRAL HIGH)
Cross references: Instrument Nos.:
AGREEMENT TO TERMINATE AND RELEASE REAL PROPERTY INTERESTS
This Agreement to Terminate and Release Real Property Interests ("Agreement") is entered
into effective as of 12:01 A.M. on , 2019 (the "Effective Date"), by and between the
City of South Bend, Indiana, by and through its Board of Public Works, Board of Park Commissioners,
and Department of Redevelopment, by and through its governing body, the South Bend
Redevelopment Commission (collectively the "City"), FREG Stephenson Mill Associates, LLC, a
Colorado limited liability company ("FREG"), and Wharf Partners, LLC, an Indiana limited liability
company ("Wharf Partners").
WHEREAS, the City owns real property in South Bend, Indiana known as Lot 1 of the Seitz
Park Minor Subdivision (the "City Parcel");
WHEREAS, Wharf Partners owns real property in South Bend, Indiana adjacent to the City
Parcel known as Lots 1-3 of the Cascade Minor Subdivision (the "Wharf Partners Parcels");
WHEREAS, FREG owns real property in South Bend, Indiana known as Lot 1 of the
Opelika Minor Subdivision and Lot 2 of the Seitz Park Minor Subdivision (the "FREG Parcels");
WHEREAS, the City Parcel, Wharf Partners Parcels, and FREG Parcels are each burdened by
easements for access and parking or are otherwise encumbered by real property interests or rights and
these encumbrances benefit one or more of the other parties to this Agreement;
WHEREAS, as part of the development of the City Parcel and Wharf Partners Parcel, the
parties agree to release, terminate and quitclaim unto the applicable parcel owner all currently existing
easements (other than as set forth in the recorded Seitz Park Minor Subdivision and the Shared
Easement Agreement [as defined below]) and encumbrances they have over such applicable parcels
identified in this Agreement and thereafter create a new easement for ingress and egress only on a
portion of the City Parcel in a separate recorded Shared Perpetual, Non -Exclusive Ingress, Egress and
Utility Easement Agreement (the "Shared Easement Agreement").
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the City, FREG, and Wharf Partners agree as follows:
1. Except as set forth in the recorded Seitz Park Minor Subdivision, the Shared Easement
Agreement and any agreements entered into by Wharf Partners and the City after the
Effective Date, Wharf Partners does herby release, terminate and quitclaim unto the City
all of its right, title and interest in and to the City Parcel which it received by written
instrument or otherwise. Wharf Partners does hereby release, terminate and quitclaim unto
FREG all right, title and interest in and to the FREG Parcels which it received by written
instrument or otherwise.
1
2. Except as set forth in the recorded Seitz Park Minor Subdivision, the Shared Easement
Agreement, the Project Agreement dated ....""'.._..._. 2019 and any agreements entered
into by FREG and the City after the Effective Date, FREG does herby release, terminate
and quitclaim unto the City all of its right, title and interest in and to the City Parcel which
it received by written instrument or otherwise. FREG does hereby release, terminate and
quitclaim unto Wharf Partners all right, title and interest in and to the Wharf Partners
Parcels which it received by written instrument or otherwise.
Without limiting the release, termination and termination set forth in Sections 1 and 2
above, the City, FREG, and Wharf Partners agree that the easements specifically identified
on Exhibit A attached hereto shall be of no further force or effect and the parties hereby
release each other from any and all liabilities, claims, and obligations arising out of or in
connection with any such easements.
4. Each party shall, at no additional cost to the other parties, cooperate with the other and its
authorized representatives with regard to any reasonable requests made subsequent to execution
of this Agreement to correct any clerical errors contained in this Agreement and to provide any
and all additional documentation deemed necessary to effectuate the transaction contemplated
by this Agreement. Each party further agrees that the term "cooperate," as used in this
Agreement, includes agreeing to execute or re -execute any documents that the parties
reasonably deem necessary or desirable to carry out the intent of this Agreement. All parties
recognize the duty of each party to act in good faith and with fair dealings when effectuating
the intent of this Agreement.
5. The City, FREG and Wharf Partners intend that this Agreement shall bind every person having
any fee, leasehold, or other interest therein, and shall inure to the burden or benefit of each
parcel referenced herein, the owner of each such parcel and their respective successors, assigns,
heirs, and personal representatives.
6. This Agreement, as well as any instrument releasing or terminating this Agreement, shall be
duly recorded in the Office of the Recorder of St. Joseph County, Indiana.
7. This Agreement shall be governed and construed in accordance with the laws of the State of
Indiana without reference to its conflict of laws principles.
[Signature Pages Follow]
2
WHARF PARTNERS, LLC,
an Indiana limited liability company
Its:
Date Signed:
STATE OF INDIANA )
SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared
., the................................................................. ........_ _................... of Wharf Partners, LLC, an
Indiana limited liability company, who, having been duly sworn, acknowledged the execution of the foregoing
instrument for and on behalf of such entity as such officer or other representative.
WITNESS my hand and Notarial Seal this day May, 2019.
Notary Public
Notary Public (Printed)
My Commission Expires: My County of Residence:
FREG STEPHENSON MILL ASSOCIATES, LLC,
a Colorado limited liability company
By: Forum Management, Inc.,
a Colorado corporation, its Manager
BY:...
Name:
Title:
Date Signed:
STATE OF
SS:
COUNTY OFwm
Before me, a Notary Public in and for said County and State, personally appeared
IT the of Forum Management, Inc., a
Colorado corporation, who, having been duly sworn, acknowledged the execution of the foregoing instrument
for and on behalf of such entity as such officer or other representative.
WITNESS my hand and Notarial Seal this day of June 2019.
Notary Public
Notary Public (Printed)
My Commission Expires; My County of Residence:
rd
CITY OF SOUTH BEND, INDIANA
BOARD OF PUBLIC WORKS
Gary Gilo ,President
Theres J. 1 6rau, M rnber
Elizabeth M.�.�.�aradMember ��.�.�.�.�.�.....�.��
a ik,
Genevieve Miller, Member
Laura O'Sullivan, Member
Atte .,...
l.w Aida Martin, :lerl
Date Signed: (, L-)- /
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared Gary Gilot, Therese
Dorau, Elizabeth Maradik, Genevieve Miller, Laura O'Sullivan, and Linda Martin, President, Members, and
Clerk, respectively, of the South Bend Board of Public Works, who, having been duly sworn, acknowledged
the execution of the foregoing instrument for and on behalf of such entity as such representatives.
WITNESS my hand and Notarial Seal this day of June 2019.
Notary Public
Notary Public (Printed)
My Commission Expires: My County of Residence:
5
SOUTH BEND
BOARD OF PARK COMMISSIONERS
Mark Neal, President
Consuella Hopkins, Vice President
Dan Farrell, Member
Aimee Bucellato, Member
ATTEST:
Eva Ennis
Date Signed:
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared Mark Neal,
Consuella Hopkins, Dan Farrell, Aimee Bucellato, and Eva Ennis, President, Vice President, Members, and
Clerk, respectively, of the South Bend Board of Park Commissioners, who, having been duly sworn,
acknowledged the execution of the foregoing instrument for and on behalf of such entity as such
representatives.
WITNESS my hand and Notarial Seal this day of June 2019,
Notary Public
Notary Public (Printed)
My Commission Expires: My County of Residence:.
,1
SOUTH BEND REDEVELOPMENT
COMMISSION
Marcia I. Jones, President
ATTEST:
Quentin Phillips, Secretary
Date Signed:
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared Marcia I. Jones and
Quentin Phillips, President and Secretary, respectively, of the South Bend Redevelopment Commission, who,
having been duly sworn, acknowledged the execution of the foregoing instrument for and on behalf of such
entity as such representatives.
WITNESS my hand and Notarial Seal this day June, 2019.
Notary Public
Notary Public (Printed)
My Commission Expires: My County of Residence:
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. Sandra L. Kennedy
Prepared by Sandra L. Kennedy, Assistant City Attorney, 1200 S. County -City Building, 227 W. Jefferson Blvd., South Bend, Indiana
46601
EXHIBIT A
The driveway, ingress and egress easement disclosed in a Warranty Deed from the Southern Mills
Products Company, an Indiana Corporation, to Opelike Manufacturing Corporation, an Illinois
Corporation, dated February 25, 1966 and recorded March 2, 1966 in Deed Record 673, page
636 in the Office of the Recorder of St. Joseph County, Indiana, and also disclosed in Special
Warranty Deed from First Bank and Trust Company of South Bend, as Successor Trustee under
a certain agreement and declaration of trust dated April 15, 1936 and recorded in Miscellaneous
Record 57, pages 442-459, wherein First Bank and Trust Company of South Bend, Liquidating
Agent of First National Bank of South Bend, American Trust Company of South Bend, St. Joseph
Loan & Trust Company of South Bend and Joseph E. Neff, Receiver of Citizens National Bank
of South Bend are designated as parties of the first part, P.W. Van Antwerp, as party of the second
part and D.K. Stephenson as part of the third part, an Indiana corporation, to the Southern Mills
Products, an Indiana corporation, dated October 31, 1941 and recorded November 10, 1941 In
Deed 340, page 198 in the Office of the Recorder of St. Joseph County, Indiana.
2. The Easement as disclosed in a quitclaim deed from the Southern Mills Products Company, an Indiana
corporation to Opelika Manufacturing Corporation, an Illinois corporation, dated February 25, 1966
and recorded March 2, 1966 in deed record 673, page 639 in the Office of the Recorder of St. Joseph
County, Indiana.
3. The Easement Agreement by and between Char King, Inc. and Opelike Manufacturing Company of
Chicago, dated April 6, 1976 and recorded April 27, 1976 in Deed Record 815, page 112 in the Office
of the Recorder of St. Joseph County, Indiana (as modified by the Parking Agreement Document
#9526973).
4. The Easement Agreement recorded as Document No. 1123732, dated September 13, 2011, and
recorded September 14, 2011, by and between the City of South Bend, Indiana, Department of
Redevelopment, acting by and through the South Bend Redevelopment Commission, and Stephenson
Mills Associates, LLC.
Cross references: Instrument Nos,.:
AGREEMENT TO TERMINATE AND RELEASE REAL PROPERTY INTERESTS
This Agreement to Terminate and Release Real Property Interests ("Agreement") is entered
into effective as of 12:01 A.M. on ......... _........., 2019 (the "Effective Date"), by and between the
City of South Bend, Indiana, by and through its Board of Public Works, Board of Park Commissioners,
and Department of Redevelopment, by and through its governing body, the South Bend
Redevelopment Commission (collectively the "City"), and FREG Central High Associates, LLC, a
Colorado limited liability company ("FREG").
WHEREAS, the City owns real property in South Bend, Indiana known as Lot Number Two
(2) of the Recorded Plat of Central High Associates Minor Subdivision recorded as Document No.
9408747 in the records of the St. Joseph County, Indiana Recorder's office and being more particularly
described on Exhibit A attached hereto (the "City Parcel");
WHEREAS, FREG owns real property in South Bend, Indiana known as Lot Number One (1)
of the Recorded Plat of Central High Associates Minor Subdivision recorded as Document No.
9408747 in the records of the St. Joseph County, Indiana Recorder's office and being more particularly
described on Exhibit II attached hereto (the "FREG Parcel");
WHEREAS, the City Parcel is burdened by easements for access and parking or is otherwise
encumbered by real property interests or rights and these encumbrances benefit FREG;
WHEREAS, the City is concurrently conveying all right, title and interest in and to the City
Parcel to FREG, and the City agrees to release, terminate and quitclaim unto FREG, all currently
existing easements and encumbrances it has over the City Parcel.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the City and FREG, agree as follows:
The City does herby release, terminate and quitclaim unto FREG all of its right, title and
interest in and to the City Parcel which it received by written instrument or otherwise.
Without limiting the release, termination and termination set forth herein, the parties agree
that the easement specifically identified on Exhibit C attached hereto shall be of no further
force or effect and the parties hereby release each other from any and all liabilities, claims,
and obligations arising out of or in connection with any such easements.
Each party shall, at no additional cost to the other parties, cooperate with the other and its
authorized representatives with regard to any reasonable requests made subsequent to execution
of this Agreement to correct any clerical errors contained in this Agreement and to provide any
and all additional documentation deemed necessary to effectuate the transaction contemplated
by this Agreement. Each party further agrees that the term "cooperate," as used in this
Agreement, includes agreeing to execute or re -execute any documents that the parties
reasonably deem necessary or desirable to carry out the intent of this Agreement. All parties
recognize the duty of each party to act in good faith and with fair dealings when effectuating
the intent of this Agreement.
3. The City and FREG intend that this Agreement shall bind every person having any fee,
leasehold, or other interest therein, and shall inure to the burden or benefit of each parcel
referenced herein, the owner of each such parcel and their respective successors, assigns, heirs,
and personal representatives.
4. This Agreement, as well as any instrument releasing or terminating this Agreement, shall be
duly recorded in the Office of the Recorder of St. Joseph County, Indiana.
5. This Agreement shall be governed and construed in accordance with the laws of the State of
Indiana without reference to its conflict of laws principles.
[Signature Pages Follow]
Fa
CITY OF SOUTH BEND, INDIANA
BOARD OF PUBLIC WORKS
.
Gary Gil of, President
1"hera�
w.. eranlBVlerrtecir
Elizabeth Maradik, Member
Genevieve Miller, Member
Laura O'Sullivan, Member
Attest:(�� � G
A d t� Martin, Cle k
Date Signed: o� �/ e)l `f ___ ----
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared Gary Gilot, Therese
Dorau, Elizabeth Maradik, Genevieve Miller, Laura O'Sullivan, and Linda Martin, President, Members, and
Clerk, respectively, of the South Bend Board of Public Works, who, having been duly sworn, acknowledged
the execution of the foregoing instrument for and on behalf of such entity as such representatives.
WITNESS my hand and Notarial Seal this .......... clay „ , 2019.
Notary Public
Notary Public (Printed)
My Commission Expires: My County of Residence:
M
FREG CENTRAL HIGH ASSOCIATES, LLC,
a Colorado limited liability company
By: Forum Management, Inc.,
a Colorado corporation, its Manager
By:
Name:.
Title:
Date Signed:
STATE OF
SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared
the.........._........................_..........._._.....� of Forum Management, Inc., a
Colorado corporation, who, having been duly sworn, acknowledged the execution of the foregoing instrument
for and on behalf of such entity as such officer or other representative.
WITNESS my hand and Notarial Seal this
day , 2019.
Notary Public
Notary Public (Printed)
My Commission Expires: My County of Residence:
3
SOUTH BEND
BOARD OF PARK COMMISSIONERS
Mark Neal, President
Consuella Hopkins, Vice President
Dan Farrell, Member
Aimee Bucellato, Member
ATTEST:
Eva Ennis
Date Signed:
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared Mark Neal,
Consuella Hopkins, Dan Farrell, Aimee Bucellato, and Eva Ennis, President, Vice President, Members, and
Clerk, respectively, of the South Bend Board of Park Commissioners, who, having been duly sworn,
acknowledged the execution of the foregoing instrument for and on behalf of such entity as such
representatives.
WITNESS my hand and Notarial Seal this
,day_ .......................�............., 2019.
Notary Public
Notary Public (Printed)
My Commission Expires: My County of Residence:
5
SOUTH BEND REDEVELOPMENT
COMMISSION
Marcia I. Jones, President
ATTEST:
Quentin Phillips, Secretary
Date Signed:
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared Marcia I. Jones and
Quentin Phillips, President and Secretary, respectively, of the South Bend Redevelopment Commission, who,
having been duly sworn, acknowledged the execution of the foregoing instrument for and on behalf of such
entity as such representatives.
Y Y...�_............................................_........, 2019.
WITNESS m an an Notarial Seat this_day.—_,,,, ��
Mary C. Brazinsky, Notary Public
Resident of St. Joseph County, Indiana
Commission expires: December 12, 2024
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. Sandra L. Kennedy
Prepared by Sandra L. Kennedy, Assistant City Attorney, 1200 S. County -City Building, 227 W. Jefferson Blvd., South Bend, Indiana
46601
0
EXHIBIT A
Rights and benefits of an easement as disclosed in an Easement Agreement by and between the City
of South Bend, Indiana, Department of Development, acting by and through the South Bend
Redevelopment commission and Central High Associates, LLC, dated January 17, 2012 and recorded
January 17, 2012 as Instrument Number 1201374 in the St. Joseph County records. Said easement
affects the following described property:
Being in that part of the Northeast quarter of Section 11, Township 37 North, Range 2 East, Portage
Township, City of South Bend, St. Joseph County, Indiana which is described as:
Lot number Two (2) of the recorded plat of "Central High Associates Minor Subdivision" recorded
as Document No. 9408747 in the records of the St. Joseph County, Indiana Recorder's office and
being more particularly described as:
Beginning at the Northeast corner of said Lot 1 of said subdivision; thence South 00' 01' 34" West,
313.76 ft.; thence South 89' 58' 26" West, 172.35 ft.; thence North 00' 01' 34" East, 42.66 ft.; thence
North 89' 57' 21" West, 197.41 ft. to the East line of William Street; thence South 00' 00' 00" West
along said East line 91. 15 ft. to the North line of Washington Street; thence South 89' 48' 08" East
along said North line, 430.07 ft. the West line of St. James Court; thence North 00' OF34" East along
said West line, 411.05 ft. to the South line of Colfax Avenue; thence North 89' 43' 16" West along
said South line, 430.26 ft. to the East line of William Street; thence South 00' 00' 00" West along
said East line, 206.31 ft.; thence South 89' 57' 21" East, 145.29 ft.; thence North 06' 01' 09" East,
13.57 ft.; thence North 00' 02' 3 9 " East, 3 4.3 0 ft.; thence North 89' 58' 2 6 " East, 5 0.8 3 ft.; thence
North 00' OF34" West, 109.01 ft.; thence North 89' 58' 26" East, 172.36 ft. to the Point of Beginning.
EXHIBIT B
Fee interest in that part of the Northeast quarter of Section 11, Township 37 North, Range 2 East,
Portage Township, City of South Bend, St. Joseph County, Indiana which is described as:
Lot number one (1) of the recorded plat of "Central High Associates Minor Subdivision" recorded as
Document No. 9408747 in the records of the St. Joseph County, Indiana Recorder's office and being
more particularly described as:
Beginning at the Northeast corner of said Lot #1; thence South 00' 01' 34" West, 313.76 ft.; thence
North 89' 58' 26" West, 172.35 ft.; thence North 00' 01' 34" East, 42.66 feet; thence North 89°57'
21" West, 197.41 feet to the East line of William Street: thence North 00' 00' 00" East along said
East line 114.20 feet; thence South 89' 57' 21" East, 145.29 feet; thence North 06' 01' 09" East, 13.57
feet; thence North 00' 02' 39" East, 34.30 feet; thence North 89' 58' 26" East, 50.83 feet; thence
North 00' 01' 34" West, 109.01 feet; thence North 89' 58' 26" East, 172.36 feet to the Point of
Beginning.
8
EXHIBIT C
1. Easement Agreement, by and between City of South Bend, Indiana, Department of
Development and Central High Associates, LLC recorded January 17, 2012 as Instrument
#1201374, of the St Joseph County records
�1
EXHIBIT E-LOCAIJON OF 26 FREE PARJUNG SPACES
AT WHARF PARTNERS PROPERTY
(SEE ATTACHED I PAGE)
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LEGEND —�
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(26) OFF-STREET PARKING SPACES
V7,
(12) ON -STREET PARKING SPACES
e
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EXHIBIT "E"
NOT TO SCALE
EXHIBIT F-1-LOCATION OF 25 PARKING SPACES
(SEE ATTACHED 1 PAGE)
COLFAX AVE
F
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PHASE 1 PARKING (25 SPACES)
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EXHIBIT "F-1 "
NOT TO SCALE
EXHIBIT F-2-LOCATION OF 26 FREE PARKING SPACES
AT STEPHENSON MILLS PROPERTY
(SEE ATTACHED I PAGE")
y Wt FAX A F
`s
(10) EXISTING C
SPACES I
m
I
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"A � i , SPACES I ti
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(S} NEW
SPACES
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LEGEND 9
o
PHASE II EXISTING PARKING x
(25 SPACES) EM,)
PHASE II PROPOSED PARKING
(26 SPACES)
µ li pvW I
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ti
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EXHIBIT 99F-2"
NOT TO SCALE
EXHIBIT G-LOCATION OF "ONE-WAY"(FROM SOU 11 TO NORTH) EXIT DIVE ON
THE EAST SIDE OF THE PROPERTY
(SEE ATTACHED 1 PAGE)
TEMPORARY DRIVE
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EXHIBIT 11G"
NOT M SCALE
EXHIBIT H-KELLER ENGINEERING INITIAL ASSESSMENT
QSEE ATTACHED 9 PAGES)
KIr- ER
ENGINET"RING, M.".
January 13, 2019
Revised January 30, 2019
Forum Real Estate Group
4500 Cherry Creek Drive South, Suite 550
_Glendale, CO 80246
Attn: Peter Faulhaber
RE: STEVENSON MILL, 322 E. COLFAX AVENUE, SOUTH BEND, INDIANA
Project No. 1811-117
On Thursday, January 10, 2018, Rick
D. Keller P. E. met with Tina Bobbitt at
the Stevenson Mill building located at
330 W. Colfax Avenue in South Bend,
Indiana. The purpose of the meeting
was to inspect the building to
determine if there was any damage
caused by vibrations resulting from the
heavy construction that is underway
next door.
The Stevenson Mill building was a
three-story heavy industrial type
structure that had been converted into
apartments. The building consisted of
a concrete frame with exterior brick
infills and wood interior flooring. It was
renovated into apartments about 25
years ago. The interior had drywall
finishes and windows matching the
original appearance of the building
were also installed 25 years ago.
Keller Engineering, Inc.
54365 301h Street • South Bend, Indiana 46635 • P: (574) 272-3525 • F: (574) 247-6006
www.KelterEngineeringlnc.com
STEVENSON MILL
January 13, 2019
Revised January30, 2019
Page 2 of 9
Residents have complained about vibrations occurring in the building as a result of
construction activity next -door. This vibration was most noticeable on the upper floors
but the majority of the damage was found on the lower floors. This is where the
stresses would have been the greatest.
Keller Engineering performed an inspection of the interior of the hallways, a sampling of
the apartments and an exterior inspection. Photographs were taken of areas of concern
throughout the building.
The most obvious
damage was found in
the drywall on the
hallways on the lower
levels. Multiple cracks
were found in the drywall
between the upper
corners of doorways and
the overhead beams.
The cracks tended to
follow the seams
between drywall panels
and typically followed a
stair step pattern. It was
difficult to focus a
camera on the cracks,
but here is a sampling.
Keller Engineering, Inc.
54365 30`" Street • South Bend, Indiana 46635 • P: (574) 272-3525 • F: (574) 247-6006
www.KellerEnginecring[no.com
STEVENSON MILL
pip
January 13, 2019
Revised January30, 2019
Page 3 of 9
Keller Eng'incering, Lic.
54365 30"' Street • Soutli Bend, Indiana 46635 • P: (574) 272-3525 • F: (574) 247-6006
www.Kellei-Enginecringlnc.com
STEVENSON MILL
In at least one area, distortion between
two panels at a corner could be seen.
Also buckling could be seen in
the upper corner of a drywall
panel at the intersection with a
concrete frame. It is highly likely
the vibrations such as the
occupants have described could
cause this damage
January 13, 2019
Revised January30, 2019
Page 4 of 9
Keller Engineering, Inc.
54365 301" Street • South Bend, Indiana 46635 • P: (574) 272-3525 • F: (574) 247-6006
www.KellerEngineerijiglnc.com
STEVENSON MILL January 13, 2019
Revised January30, 2019
Page 5 of 9
, 01/10l201!
Keller Engineering, Inc.
54365 30°i Street • South Bend, Indiana 46635 • P: (574) 272-3525 • F: (574) 247-6006
www, Kel lerEng i nceringl nc. co m
STEVENSON MILL
January 13, 2019
Revised January30, 2019
Page 6 of 9
On the exterior, we observed several areas of deterioration that largely could be
attributed to rusting reinforcing steel. The rust takes up more volume than the bare
steel, which causes the concrete to burst. Close-ups of these spalls are available in our
office.
Keller Engineering, Inc.
54365 30°i Street • South Bend, Indiana 46635 • P: (574) 272-3525 • F: (574) 247-6006
www.KellerEngineeringInc.com
STEVENSON MILL
January 13, 2019
Revised January30, 2019
Page 7 of 9
This is the chip at the top of the wall and a column with spalled concrete.
1
Keller Engineering, Inc.
54365 30'h Street • South Bend, Indiva 46635 • P: (574) 272-3525 • F: (574) 247-6006
www,Kell erEngi neeringln c. com
STEVENSON MILL
The picture on the
right shows the
damaged beam
above the east door
entrance.
Damage could be seen
over the north east corner
on the west face.
January 13, 2019
Revised January30, 2019
Page 8 of 9
Keller I''nginetring, Inc.
54365 30'h Street • South Bend, Indiana 46635 • P: (574) 272-3525 • F: (574) 247-6006
www.KellerEngineeringI nexo m
STEVENSON MILL
Quite a few spalls could be
seen in other parts of the
north face.
January 13, 2019
Revised January30, 2019
Page 9 of 9
The vibrations from the adjacent construction had the potential to dislodge some of the
loose concrete. It did not appear, however, that significant structural damage to the
building could be attributed to this vibration. We would attribute the interior drywall
cracks to the vibrations.
If you have any further questions, please call.
Sincerely,
Rick D. Keller P.E.
Keller Engineering, Inc.
54365 30'h Street • South Bend, Indiami 46635 • P: (574) 272-3525 • F: (574) 247-6006
www.Kel lerEngi n eeringInc, com
EXHIBIT I -INCOME BASELINE
(SEE ATTACHED 5 PAGES)
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EXHIBIT J-POST-PROJECT TRASH ENCLOSURE REBUILD
(SEE ATTACHED 1 PAGE)
DUMPSTER ENCLOSURE EXAMPLE
-ACTUAL DESIGN, SIZE, AND AUTERWS AIRY VARY
EXHIBIT "J"
EXHIBIT K-LOCATION OF 61 PARKING SPACES
AT STEPHENSON MILLS PROPERTY
(SEE ATTACHED 1 PAGE)
COLFAX AVE
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IN
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LEGEND �, ,m� �wG�J11 0 a
POST CONSTRUCTION PARKING
(61) SPACES
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EXHIBIT "K"
NOT TO SCALE
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date June 18 2019
Department Legal on
behalf of DCI and
Name Sandra Kennedv VPA
BPW Date June 25 2019 Phone Extension 235-9294
m�muuummm�muuuuuuuuuuuummmmmw.mmwimmmmmmmmi�uu uuuuumumuuuuuuuu lm mmmuuuumimomommmnmmmimimmmmmmimimmmimimmmmmmmimimmmmmmmmuimimimimimimmmmmmmmumommmmmm uuumommmmmummmmmummmmmumomommmimumimmmummmmmmmmmmmmmmmommmmmmmmmmmmmmmmmmimimmmmmmmmmmmmmmmmmimimmmmmuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuumiiiw�
..................................................._.................._�.._......_ ,..........,. ...........__..._.m�..�..�_..,.,.�..�.�....� .�......... ___..........
Required Pnor tommSubmittal toBoard
...........
BPW Attorneymm�mmmmmm ._................._ AttorneyNameC1araITMcDaniels.._..�.�..�._...�._��._
Dept. Attorney 0 Attorney Name Sandra Kennedy
Purchasing
Check the Apit Le
E Professional mServices Agreement Contract
❑ Open Market Contract ❑ Amendment/Addendum
[j Bid Opening [:] Bid Award
[-1 Quote Opening [] Quote Award
E] Proposal Opening [❑ C/O & PCA No.
EJ Chg. Order, No. Traffic Control
n Other:
r All Submissions
(I Proposal
❑ Special Purchase, QPA
0 Req. to Advertise
E]I Reject Bids/Quotes
[❑] PCA
E] Resolution
Ease./Encroach
❑ Title Sheei
Re , Ma ired Information
Companyor Vendor Name
University of Notre du Lac, Stephenson Mill
Unmmm ..............._..
E]Yes ❑ If Yes, Approved by Purchasing
New Vendor
❑ No
❑ MBE Yes
MBE/WBE Contractor
Completed E-Verify Form Attached
❑ WBE [ No
Project Name
Seitz Park Improvements
_... _.................... �ww......................w............... ........... .......................... . ........................ _. ...... .......... .
Project Number
1..1..-0.9.3................... ............ ............. ..........
.
Funding Source
Account No.
Amount�..__$.�._.._.._..�.�.�.�......�.�.�.�.�.�.�.�.�......�.�.�......�
...........................ww��......................_.._...�.�.�.�.�.�.�.�.�.�.�.�.�.�.�.�.�.�.�............._..��.._......�.�.�.�.�.�.�..............................................................................�.�.�..
�-
Terms of Contract
Duration of Seitz Park Im rovements� est. December 202_h
Purpose/Description
�.�.�_�.� �.�.�_� �� ..._. _ ._.__...........�.�.�.�.�.�.�.._-.�.�.�.. _ -
Project Agreement: This Agreement allows Notre Dame and the City to us
the parking lot around Stephenson Mill to effectuate the construction of No
Dame's hydroelectric facility and the improvements to Seitz Park by allowi
Notre Dame and the City to stae construction cc u�mat on the prapert�
..._...._..__..
For '1 II Orders
.... ......... ..... ..._ ........ ... .�...
Amount of
Increase $
Decrease ($ )
Previous Amount
$
...Increase ...........%.............. �...�.. .�
Current Percent of Change:
Decrease %) .......m_..wm_....._,..................
�,......�.�.......�����..m.
New Amount
$ ._..............._................ .........................................—................�...... ���mm._.............. ���...... � �.....
Increase.—w..
Total Percent of Change:
Decrease %)
Time Extension Amount:
New Completion Date:
�.___