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HomeMy WebLinkAboutAgreement - Public Improvements for 201 S. Main St. (Barnes and Thornburg Building) - Bald Mountain, LLC.1316COUNTY-CITY BUILDING rf PHONE 574/235-9251 227 W. JEFFERSON BOULEVARD 14 WkAC ;' FAX 574/ 235-9171 f SOI ITH BEND. INDIANA 46601-1 830 � r' ro x ae CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR PUBLICBOARD OF WORKS December 10, 2019 Mr. E. Lewis Hansell Bald Mountain, LLC. 21953 Protecta Dr. Elkhart, IN 46516 RE: Public Improvements Agreement Dear Mr. Hartsell: The Board of Public Works, at its meeting held on December 10, 2019, approved the above referenced agreement for public improvements for 201 S. Main St. (Barnes and Thornburg Building) in the amount of $120,324, with the city to be reimbursed $15,574. Enclosed please find the original of the agreement for your signature. Please sign and return the original agreement to our office and retain a copy for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure GARY A. GILOT GENEVIEVE E. MILLER ELIZABETH A. MARADIK LAURA L. O'SULLIVAN THERESE J. DORAU 201 S MAIN PUBLIC IMPROVEMENTS AGREEMENT This 201 S Main Public Improvements Agreement (the "Agreement") is made on this 10" day of December, by and between the City of South Bend, Indiana, an Indiana municipal corporation (the "City"), acting by and through its Board of Public Works (the "Board"), and Bald Mountain LLC, an Indiana limited liability company with an address of 21953 Protecta Drive, Elkhart, Indiana 46516 (the "Owner"), in order for the Owner to termporarily occupy, and to enable the construction or re -construction of, the public right-of-way (the "R.O.W.") improvements along Main Street and Jefferson Boulevard within the City's municipal boundaries (the "Project Area") WHEREAS, the City holds title to the Project Area, including the R.O.W.; and WHEREAS, Owner's project site is located at Owner's property commonly known as 201 South Main Street within the City (the "Site"); and WHEREAS, the Owner has entered into a Development Agreement, as amended (the "Development Agreement"), with the South Bend Redevelopment Commission, the governing body of the City of South Bend Department of Redevelopment (the "Commission") in which the Commission agreed to expend certain tax increment finance revenues in connection with the Owner's project at the Site (the "Project"); and WHEREAS, in order to facilitate construction of the Project and 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 Main Street R.O.W. and Jefferson Boulevard R.O.W.; and WHEREAS, pertinent to the drainage needs of the Project and subject to a separate access agreement, Owner will connect to a separated storm sewer line located adjacent to the Site to facilitate storm water overflow, which connection requires additional penetration into the R.O.W. by Owner; and WHEREAS, upon the completion of its temporary occupancy and use of the relevant R.O.W., Owner intends to cause the Commission to repair and/or replace the sidewalks, trails, curbs, lighting, landscaping, trees, brick pavers, and drive approaches, and patch the roadway in the R.O.W. ("Public Improvements") pursuant to the Development Agreement and as outlined in the plan sheets contained in Exhibit A, and WHEREAS, Owner's contractor has provided a cost estimate related to the repairs required to complete the Public Improvements, which estimate is attached and incorporated herein as Exhibit B, and WHEREAS, the Owner has petitioned the Board for long-term occupancy and partial long-term closure of the R.O.W. in order to facilitate the Project as described herein, and the Board has agreed to grant Owner's petition under the terms and conditions set forth below. 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 of Public Improvements. The Owner has provided the City with Exhibit A, which depicts the Public Improvements (together with a cost estimate relative to the Public Improvements attched as Exhibit B), the receipt of which the City acknowledges. The Owner shall work with the Commission to bid the Public Improvements in accordance with the Development Agreement. 2. Construction Inspection. The City shall inspect the Public Improvements during construction to ensure conformance to City ordinances and standards pertaining to area planning, adequacy of design, and quality of construction. The City's contractor for the Public Improvements (the "City's Contractor") shall work with a City inspector at key milestones throughout work within the R.O.W. Key milestones shall include but not be limited to: hot mix asphalt placement, placement of any drainage apparatus, concrete placement, light installation, and tree installation. The Owner agrees to cooperate with the City and the City's Contractor with regard to any necessary and reasonable adjustments to the Public Improvements required by the City, in the sole discretion of the City Engineer or her designee, as a result of such inspections. 3. Permits. It shall be Owner's responsibility and expense to obtain or cooperate with the City's Contractor to obtain all permits associated with the construction and installation of the Public Improvements in the R.O.W. and to comply with all applicable laws. Owner's failure to comply with this Section 3 shall be a material breach of this Agreement. 4. Payment In Lieu of Performance Bond. Because the City, via the Commission, will be performing the work related to the Public Improvements using funds allocated to the Owner under the Development Agreement, the City has agreed to waive the requirement of a performance bond. In lieu of a performance bond, the Owner agrees to pay to the Commission an amount equal to the difference between the cost estimate set forth in Exhibit B and the amount available for the Owner's use under the Development Agreement. The Owner and the Commission will concurrently enter into an amendment to the Development Agreement, wherein the remaining funds plus the payment made to the Commission by the Owner are reserved exclusively for the payment of the Public Improvements. If, upon the opening of bids for the Public Improvements pursuant to the Development Agreement, the lowest responsive bid from a responsible bidder exceeds the total amount of funds held by the Commission for the work, the Owner shall pay the excess amount to the Commission in order to award the bid, as well as the costs related to any change orders requested by Owner (or otherwise approved by Owner and Commission) required to complete the Public Improvements to the satisfaction of the City. 5. Maintenance Bond. As a part of the bid package for the Public Improvements and within ten (10) days of City's acceptance of the dedication thereof, the City's Contractor shall provide the City with a maintenance bond equal to ten percent (10%) of the construction cost covering all work performed or to be performed pursuant to this Agreement, and such bond shall remain in effect for three (3) years after dedication as described in Section 7 below. 6. Term. Except as otherwise provided herein, this Agreement shall continue for a period of twelve (12) months from the Effective Date of this Agreement, or upon the issuance of the relevant occupancy permit(s), whichever occurs last. 7. Dedication. The Owner understands and agrees that the dedication of the Public Improvements to the City is a requirement for occupancy. Upon completion of the construction of the Public Improvements, the Owner shall use its best efforts to work with the City to ensure that the Public Improvements are dedicated to the City in a timely manner. It is understood by the 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 material 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, or the parties shall require the City's Contractor to provide, As -Built drawings in accordance with the City of South Bend Prevailing Specifications for Public Works, which may be found at https://southbendin.gov/wp-content/uploads/2018/07/SBN- Spec-Stand-FINAL-062618-REV-2 BPWSignature.pd£ Owner's failure to comply with this Section 7 shall be a material breach of this Agreement. 8. 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, the 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. 9. 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. 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. 10. Assignment. This Agreement may not be assigned by the 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 10 shall be a material breach of this Agreement. 11. Material Breach. The parties agree that a material breach of this Agreement by the 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 take any action against the Owner that is available to it under applicable law. Notwithstanding the foregoing, or anything contained herein to the contrary, it is the Owner's (a) sole responsibility to ensure that the Public Improvements being performed by Owner (if any) are completed to the City's satisfaction, and (b) responiibility to cooperate, in good faith, with the City to coordinate scheduling and oversight of City's Contractor to ensure that such City's Contract completes .Public Improvements being performed by such City Contractor. 12. 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. 13. 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. 14. 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 15. Time. Time is of the essence of this Agreement. 16. 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. 17. 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. BALD MOUNTAIN LLC am E. Lewis Hansell, Manager CITY OF SOUTH BEND INDIANA BY AND THROUGH ITS BOARD OF PUBLIC WORKS Gary A. Gilot, President Genevieve E. Miller, Member Laura L. O'Sullivan, Member jr 1"he�e J. lJorau, Me nber Elizabeth A. Maradik, Member ATTEST: Linda Martin, Clerk of the Board of Public Works EXHIBIT A 201 N MAIN PUBLIC IMPROVEMENTS Site Plans — Proposed Construction 3 Hb I SVWNOSVBNM VNV1(3N I 'UN39 HMOS 133HIS NIVW MOOS LOZ NVId SlVAOW39 I dVW SNOMaNOO ONIISI13 ON101in9IVIOUWWOO MINIVINnow aiva @k) a 0 ...... . ................. . . — ------ - fill �ji Mpg I oil m fl- jg" F, N WNYICIN '0N38 Hinos 133815 NIVW winOS LOZ ON10ims iviom3wwoo 3H:)S'VVVNOSVMN 011'NiviNflOW 0lV9 I NVId inOAVI 311S 5 -IR I S 1g. 21 9 Al Ng 9 Palo I DA.111 VNVIUNI'UN39 Hinos �111��141!111., UMS NIvW Hinos tor 7ins NVIJ MIMMIS vNia lvios3wwoo 3H:)SVWNOIV ),l NivINnOW OIVQ 91 EXHIBIT B 201 N MAIN PUBLIC IMPROVEMENTS Cost Estimate I m 16 '12 r." 4 SO ',A V" „2 'o "6 7 .2 `m b 'zi Vi 6i gtn E E t .0 12 JQ J2 2 , - a - - . a as a q 0-0. 00 SO 8 a 's �ryt 2 LL (9 LU s L1.1 U LL LL U, E -j W v LU U) LU fn iz x t j Un, V, LL, 0 w E 0 w LU ZS R Lu (D W U Z 2 sL IJ Lill 0 0 Llj Ul t3 3 zi LS X q W w 0 0 U Atli '55 W. A z w ILI_ w A M :2 IN 3.2 V5 9 , U d "q S 9 2 An 11 CD I'D a 3 § k ! � , BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 12/03/2019 Department Public Name Zach Hurst Works BPW Date 12/10/2019 Phone Extension 3057 Requirgd Prior to Submittal to Board BPW Attorney ❑ Attorney Name Dept. Attorney Z Attorney Name Sandi Kennedy ._........................................... _ ........ Purchasing Check the Appropriate Item T Te - Required for All Submissions _ Professional Services Agreement ❑ Contract Proposal ❑ Open Market Contract [:] Amendment/Addendum Special Purchase, QPA ❑ Bid Opening E Bid Award F Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award F Reject Bids/Quotes ❑ Proposal Opening ❑ C/O & PCA No. ❑ PCA F Chg. Order, No. ❑ Traffic Control Resolution ® Other: Public Improvements Ease./Encroach Agreement Required Information Company or Vendor Name �=l aad C` # ;- Bald Mountain L LC New Vendor ........ ❑ Yes❑ If Yes, Approved by Purchasing E] No MBE/WBE Contractor F] WBE Completed E-Verify Form Attached No Project Name 201 S Main (Barnes and Thornburg Building) ........_ Project Number Funding Source RWDA TIF / Private Funding Account No. 324.1050.460.42.01 Amount $140 45ft. ` -5„57!L , m � ".' L 0 3 a - Terms of Contract GLC/BM to reimburse City, per a t. with ledeveloprnent Comm. Purpose/Description Public Improvements Agreement between GLC/BM and City to ensure DrOD reconstruction of public rit of way. For Change Orders Onl Amount of ❑ ❑ ......... ........ ........ Increase $ Decrease ($ _. Previous Amount ............................................... __ .................. $ ...._._._... Increase % ._-... ............. ......... Current Percent of Change: ..... .-__ Decrease New Amount $ �.. ............. ....... ______ .......... Increase % Total Percent of Change: Decrease ( %) Time Extension Amount: New Completion Date: