HomeMy WebLinkAboutShared, Perpetual, Non Exclusive Ingress, Egress and Utility Easement Agreement - FREG and Wharf Partners LLCSHARE) PERPETUAL NON-EXCLUSIVE INGRESS EGRESS AND UTILITY
EASEMENT AGREEMENT
THIS SHARED, PERPETUAL, NON-EXCLUSIVE INGRESS, EGRESS AND UTILITY
EASEMENT AGREEMENT (this "Agreement") is made and entered into e fective as of 12:02 a.m.
on this a5 dray ol"7,Tw ` , ,, , 2019, by and among the City of South Bend, Indiana, by and
through its Board of Public Works, Board of Park Commissioners, and 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"), upon the following terms and conditions:
RFC''TTAT Q
A. The City owns real property in South Bend, Indiana known as Lot 1 of the Seitz Park
Minor Subdivision, a portion of which is an access road as described in Exhibit A, attached hereto.
The access road shall be referred to as the "Easement Parcel". Wharf Partners owns real property in
South Bend, Indiana, adjacent to the Easement Parcel, known as Lots 1-3 of the Cascade Minor
Subdivision (the "Wharf Partners Parcels"). FREG owns real property in South Bend, Indiana,
adjacent to the Easement Parcel, known as Lot 1 of the Opelika Minor Subdivision and Lot 2 of the
Seitz Park Minor Subdivision (the "FREG Parcels"). As used herein, the Access Easement Parcel,
the Wharf Partners Parcels and the FREG Parcels are sometimes collectively referred to herein as the
"Real Property"; and
B. The parties hereto desire to enter this Agreement and all present and future owners
and occupants of the Real Property shall be and hereby are subject to this Agreement, on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of one dollar ($1.00) and other good and valuable
consideration and of the covenants herein contained, the parties hereby covenants and agrees, that the
Real Property and all present and future owners and occupants of the Real Property shall be and
hereby are subject to the easements hereinafter set forth in this Agreement, the terms of which
remain in full force and effect, so that said Real Property shall be maintained, kept, sold and used in
full compliance with and subject to the Agreement and, in connection therewith, the parties hereto on
behalf of themselves and their respective successors and assigns covenant and agree as follows:
-1-
1. Grant of Access Easement to FREG and Wharf Partners. The City hereby grants to
FREG, its successors and assigns, and to Wharf Partners, its successors and assigns,
(a) a shared, perpetual and non-exclusive access easement over, across and through
the Easement Parcel to allow vehicular and pedestrian ingress and egress to and from
the FREG Parcels and the Wharf Partners Parcels. FREG and Wharf Partners and
their respective employees, agents, contractors, visitors, and tenants shall have use of,
and access to, the Easement Parcel 24 hours per day, 7 days per week, subject to
Section 3 below. The parties agree neither FREG nor Wharf Partners will have any
right under this Agreement to install improvements of any kind on the Easement
Parcel.
2, Grant of Exi.9 tL_g_U ilit _ __a . Exhibit B attached hereto depicts the location
of the municipal water, sanitary sewer and electrical easements on the Real Property
that run to the benefit of the City as of the Effective Date. Notwithstanding the
foregoing, if a shared utility line that existed as of the Effective Date but failed to be
depicted on the Seitz Park Minor Subdivision is later discovered, then the owner of
the parcel upon which such shared utility line exists grants to other party then using
such shared utility line, a perpetual and non-exclusive easement for continued use
(but not expansion of) such shared utility line.
3, Maintenance; Restoration. The City will, at its sole expense, maintain and repair in
good order and condition the Easement Parcel consistent with other public rights -of -
ways in the general surrounding area. The foregoing shall include, but not be limited
to, (a) timely removal of snow from the Easement Parcel in accordance with the
City's schedule therefor and (b) paving, repaving and resurfacing the drive areas of
the Easement Parcel, as and when needed consistent with other public rights -of -ways
in the general surrounding area. In the event FREG or Wharf Partners damage any
part of the Easement Parcel or the public right-of-way along Colfax Avenue, FREG
or Wharf Partners, as applicable, shall promptly restore such areas to substantially the
same condition that existed immediately prior to such damage. For purposes of this
provision, normal wear and tear shall not be considered "damage" to the Easement
Parcel.
4. Clear Path of Travel. The City and its agents and employees will place no permanent
structures in, on, or over the Easement Parcel that will obstruct or interfere with the
FREG's or Wharf Partners' use of the Easement Parcel without FREG's and Wharf
Partners' prior consent.
5. Gwneersh p. The City represents and warrants that it is lawfully seized of the
Easement Parcel, that it has full right and power to grant the easements contained
herein, and that the Easement Parcel is free from all encumbrances, except any
matters of record.
& Indeiniirficatiop. Each party shall indemnify and hold the other party, its
departments, boards, officers, members, agents, directors, managers and employees
harmless from and against any and all claims resulting from (a) damage to any
property upon its parcel or injury to any person upon its parcel caused by the sole
negligence or gross negligence of such party as applicable and (b) the introduction of
hazardous materials to the Easement Parcel by such party. Notwithstanding the
-2-
foregoing or anything in this Agreement to the contrary, the City does not waive any
governmental immunity or liability limitations available to it under Indiana law.
7. Reservation of [dig . Each party reserves for itself the free use of the its parcel in
any manner not inconsistent with the terms of this Agreement.
8. Covenant Dunning with the Land. The City, FREG and Wharf Partners intend that
each of the rights and obligations set forth herein shall run with the land and create
equitable servitudes burdening the Real Property and benefitting the Real Property,
shall bind every person having any fee, leasehold, or other interest therein, and shall
inure to the burden or benefit of the respective parties and their successors, assigns,
heirs, and personal representatives.
9. Recording. This Agreement shall be duly recorded in the Office of the Recorder of
St. Joseph County, Indiana, and all recording fees will be paid by University.
10. G.o. rern:ing Law. This Easement shall be governed and construed in accordance with
the laws of the State of Indiana without reference to its conflict of laws principles.
11. Cooker tion. 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.
(signature pages follow)
-3-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
WHARF PARTNERS, LLC,
an Indiana limited liability company
Mot
Its:
Date Signed:.
STATE OF INDIANA )
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared
I 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 2019.
Notary Public
Notary Public (Printed)
My Commission Expires: My County of Residence:
-4-
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 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 bee
n 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-
-5-
CITY OF SOUTH BEND, INDIANA
BOARD OF PUBLIC WORKS
�.
Gary Gilot, President
.... ...
Therese J. Dorau, MW fiber
nizath adik, Member
Genevieve Miller, Member
Laura O'Sullivan, Member
11tiet.-. .,
I ncla Martin, Clerk
Date Signed: w mmITIT , �l5
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
My Commission Expires:
2019.
Notary Public
Notary Public (Printed)
My County of Residence:
W
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
My Commission Expires:
day , 2019.
Notary Public
Notary Public (Printed)
My County of Residence:
-7-
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 , 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
10
EXHIBIT A
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 00056'55" 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 89055'28" WEST, A DISTANCE OF 24.00 FEET; THENCE NORTH 00056'55"
EAST; A DISTANCE OF 336.94 FEET TO THE POINT OF BEGINNING.
CONTAINING 0.17 ACRES MORE OR LESS.
SUBJECT TO ALL LEGAL RIGHTS -OF -WAY, EASEMENTS, AND RESTRICTIONS OF
RECORD.
In
EXHIBIT B
-10-
r
�p W7
f� r�
�� '� �' �� � `° � r ��rr t� � �I� m� � �rr�Ia i � ' � � 1 � � r { ➢ �I� .., � �
a
m
_... ...... ........
m q+
v n _ COLFAX (82.5 R 1
�
�.. �
IN
N WOW E 58.16'
9
z
I,
u u a
♦ 'iw
f� a
YP Y
Knn'rw's
06
l�
s
4 �aat zz w ct,ra 6 ,
a
VIA
W
�O
r�
+9r +
a
w
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date June 18 2019
Name Sandra Kenned Department Legal on behalf of DCI and VPA
BPW Date June 25 2019 Phone Extension 235-9294
�t��a�aµed Prior to Submittal to Board
BPW Attorney ® Attorney Name Clara McDaniels
Dept. Attorney
Purchasing
Check the A
LI, Professional Services Agreement
Open Market Contract
❑ Bid Opening
E Quote Opening
❑ Proposal Opening
❑ Chg. Order, No.
E_ Other:
Attorney Name
to Item y1t
Contract
Sandra Kennedy
(1 Amendment/Addendum
Bid Award
Quote Award
EI C/O & PCA No.
Traffic Control
l egiawii edwInformation
dor All Submissions
Proposal
Special Purchase, QPA
Req. to Advertise ❑ Title Sheei
Reject Bids/Quotes
PCA
Resolution
Ease./Encroach
Company or Vendor Name FREG Stephenson Mill, Wharf Partners
New Vendor ❑ Yes❑ If Yes, Approved by Purchasing
No
MBE/WBE Contractor ❑ MBE Completed E-Verify Form Attached ❑ Nos
Project Name Seitz Park Improvements
Project Number ..117-093�....................a_ _.� ��m.. ........�.......__.._..._.
Funding Source
. .................
Account _ �.........._._.........................�.�.�............................_...............Y
Account No.
Amount $0
.cretu�il kameaert w.
Terms of Contract lm . ..... ... m _
Purpose/Description Easement Agreement: This agreement grants Stephenson Mill and Wharf
Partners access to their properties via Gintz Rd. Gintz Rd. will be a private
road owned and maintained by the City. This agreement also provides an
easement to the City onto the parking lot around Stephenson Mill, which w
be transferred to Stephenson Mill, to allow the existing utilities to remain a
be maintained.
,For Change Orders Onlyw
Amount of E] Increase ------
Decrease-��.
Previous Amount $
Increase /o
Current Percent of Change: Decrease ( %)
New Amount $
._..Increas�e............................................................ �m..._....._......em........................................................m...........w�
Total Percent of Change: Decrease �%) m m mmm m mmm mmmmmm
Time Extension Amount: