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HomeMy WebLinkAboutEncroachment & Revocable Permit - Eddy St. Commons Phase II - Kite Realty Group1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS November 10, 2020 Mr. Tony Halsey KRG Eddy Street Land II, LLC 30 South Meridian St. Indianapolis, IN 46204 thalseykkiterealty. com PHoNE 574/235-9251 FAx 574/235-9171 RE: Encroachment into Public Right -of -Way — Various Locations on Eddy Street and Howard Street Dear Mr. Halsey: The Board of Public Works, at its meeting held on November 10, 2020, approved your request for the installation of a private storm sewer from the West Side of Eddy St. to the detention system East of Eddy St. at various locations on Eddy Street and Howard Street. This encroachment was approved subject to the improvements not becoming a safety hazard. Enclosed please find copies of the permit and application. The encroachment will be permitted to remain and continue until such time as the Board of Public Works of the City of South Bend shall determine that such encroachment is in any way impairing or interfering with the highway or with the free and safe flow of traffic thereon. Said encroachment shall not in any way prejudice or preclude the City's rights with respect to the future use of that portion of the right-of-way. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, s/Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR INTER -OFFICE MEMORANDUM BOARD OF PUBLIC WORKS DATE SENT: TO: Matt Longfellow, Division of Engineering Gerard Ellis, Fire Department Chris Dressel, Community Investment X Coby Deal, Street and Sewers FROM: Linda M. Martin, Clerk ENCROACHMENT RECOMMENDATION Revocable Encroachments — Storm Sewer SUBJECT: Encroachment Various locations on Eddy Street and LOCATION: Howard Street DATE DUE: November 3rd, 2020 FAX OR E-MAIL TO: 235-9171 / ImartinCq)_southbend in.gov RECOMMENDATIONS AND COMMENTS: By Date i K/TE REALTY GROUP 30 S. Meridian Street, Suite 1100 Indianapolis, IN 46204 317-577-5600 FAX 317-577-5605 kiterealty.com October 15, 2020 City of South Bend Board of Public Works 227 West Jefferson 1316 County -City Building South Bend, Indiana 46601 Re: Eddy Street Commons Phase 2 Revocable Encroachments for private storm sewer To Whom It May Concern: On November 13, 2018 the South Bend Board of Public Works approved a Dedicated Improvements Agreement for Phase II of Eddy Street Commons, allowing for the installation of certain public infrastructure to serve said development. As you are no doubt aware, Phase II of Eddy Street Commons is now largely complete. On September 3, 2020 Kite Realty Group conducted a "punch -list" walkthrough of Eddy Street Commons with City Engineering, with the goal of having the City accept the installed improvements thereby dedicating them to the City. During that walkthrough, it was noted that there were certain sections of private storm sewer installed in the public right-of-way that — while they were included in the construction plans approved in November 2018 — never received a formal encroachment approval from BPW. The storm sewer in question serves to convey storm water from private property west of Eddy Street to private underground retention systems east of Eddy Street. Pagel of 3 K RG NYSE i K/TE REALTY GROUP 30 S. Meridian Street, Suite 1100 Indianapolis, IN 46204 317-577-5600 FAX 317-577-5605 kiterealty.com Therefore, Kite Realty Group would like to formally request approval from the Board of Public Works for the following encroachments into City of South Bend R/W. Please find attached with this letter a site plan visually showing these encroachments. Storm Sewer Encroachment #1 • Occurs along the north side of Saint Vincent Street from the alley midway between Eddy Street and Frances Street to the east side of Eddy Street. • The storm sewer is 9' into the Saint Vincent Street R/W for a distance of 215 feet. • The encroachment carries stormwater from Building "A" to an underground detention system in the parking lot behind Building `B". Storm Sewer Encroachment #2 • Occurs in the midblock alley between Eddy Street and Frances Street. • The storm sewer runs along the R/W line, and the pipe encroaches l' into the R/W for a distance of 410 to the north edge of Howard Street. • There are 4 manholes along this distance that encroach into the alley R/W approximately 2'. • The encroachment carries stormwater from Building "C" to an underground detention system in the Robinson Center parking lot. Storm Sewer Encroachment #3 • Occurs on the north side of Howard Street south of Building C. • The encroachment length is approximately 92' and the distance varies. The maximum encroachment distance is 11', and the entirety of the encroachment is outside the limits of pavement. • The encroachment carries stormwater from Building "C" to an underground detention system in the Robinson Center parking lot. Page 2 of 3 K RG NYSE i K/TE REALTY GROUP 30 S. Meridian Street, Suite 1100 Indianapolis, IN 46204 317-577-5600 FAX 317-577-5605 kiterealty.com Storm Sewer Encroachment #4 • Occurs in Eddy Street just north of Howard Street. • The encroachment length is approximately 130' and the distance varies. • The encroachment crosses Eddy Street perpendicularly, then turns north along the east side of Eddy to just north of Robinson Center before turning back to the east.. • The encroachment carries stormwater from Building "C" to an underground detention system in the Robinson Center parking lot. Storm Sewer Encroachment #5 • Occurs on the north side of Saint Vincent Street at the far east end. • The encroachment length is approximately 6' and the maximum encroachment distance is 1.5'. • The encroachment carries stormwater from a private park to a private storm sewer system behind Building B. The storm sewer pipe slightly encroaches into the far northeastern corner of Saint Vincent R/W. Thank you for your consideration of this request. Please feel free to contact me with any questions or concerns. Sincerely, Tony Halsey Kite Realty Group Attachments Page 3 of 3 K RG NYSE Please read the Instructions prior to completing the Agreement Form �gourHe r INSTRUCTIONS n ENCROACHMENT 1. Application must be filled out completely. 2. A picture of the area where the encroachment will take place must be attached. 3. Describe the encroachment, such as canopy, banner, planter, underground utilities, sign, etc. 4. Plans and specifications must be attached 5. The application and attachments must be received FOUR (4) WEEKS in advance 6. Signature is required, along with legible printed name 7. Return Application to: Board of Public Works 227 West Jefferson 1316 County -City Building South Bend, Indiana 46601 (574)235-9251 Fax: (574) 235-9171 REVOCABLE PERMIT .t7L'7"ff h , RECOGNITION OF ENCROACHMENT UPON CITY OF SOUTH BEND -CONTROLLED v d PROPERTY AND PROVISIONS ALLOWING TEMPORARY CONTINUANCE OF SAME w a Company/Homeowner KRG Eddy Street Land II, LLC ►sbs Name: Tonv Halsev Herein, "APPLICANT". The encroachment will be permitted to remain and continue under the following terms and conditions: 1) Until such time as the BOARD OF PUBLIC WORKS (BOARD) of the CITY OF SOUTH BEND (CITY) shall determine that such encroachment is in any way impairing or interfering with the highway or with the free and safe flow of traffic thereon; 2) Said encroachment shall not in any way prejudice or preclude the CITY'S rights with respect to the future use of the portion of the right-of-way; 3) The encroachment as it now exists shall in no manner be added to or enlarged in its present scope or dimensions; 4) In the event of change of ownership of the fixture or any other item of personal property which constitutes the aforesaid encroachment, this permit shall become null and void; 5) The CITY shall not be liable to APPLICANT for any damages caused to APPLICANT that arise out of or is incidental to any activity and/or incidences authorized by this permit; 6) In consideration of the granting of this Permit by the BOARD, APPLICANT shall indemnify, hold harmless and defend the CITY from and against any and all actions or causes of action which the CITY may suffer or incur by reason of bodily injury, including death, to any person or persons, or by reason of damage to or destruction of any property, including the loss thereof, arising out of or in any manner connected with any activity and/or incidences authorized by this permit and/or any activities and/or incidences incidental thereto, or which the CITY may sustain or incur in connection with any litigation, investigation, or other expenditures incidental thereto, including any suit instituted by the CITY to enforce the obligation of this agreement of indemnity. It is the intent of the parties hereto that the APPLICANT shall indemnify the CITY under this indemnification clause to the fullest extent permitted by law, except that APPLICANT shall not indemnify CITY for any damage or expense caused by the sole negligence of the CITY. This approval shall be binding upon everyone past or present, claiming any interest in and to the aforementioned encroachment. ACCEPTANCE OF TERMS AND CONDITIONS I accept and agree to be bound by all of the terms and conditions of this permit. Gary A. Gilot, President Elizabeth A. Maradik, Member Joseph R Molnar, Member Submitted By: Tony Halsey Signature: Date: 10/15/2020 BOARD OF PUBLIC WORKS APPROVAL Therese J. Doran, Member Jordan V. Gathers, Member ATTEST: 't2litaala C>�601iir Linda M. Martin, Clerk November 10, 2020 Date Updated 02/18 APPLICATION TO ENCROACH ONTO PUBLIC RIGHT-OF-WAY THE BOARD OF PUBLIC WORKS MUST HAVE FOUR (4) WEEKS PRIOR NOTICE PLANS AND SPECIFICATIONS MUST BE ATTACHED Date: 10/ 15/2020 Various locations on Eddy Street and Location of Encroachment: Howard Street PROPERTY -OWNER'S INFORMATION Business/ Homeowner Name: KRG Eddy Street Land II, LLC Address: 30 South Meridian Street City/State/Zip: Indianapolis, IN Phone 317-713-5653 Email thalseynkiterealty.com Signature t em Print Name: INSTALLER'S INFORMATION Business Name: FA Wilhelm Address: 3914 Prospect Street City/State/Zip: Indianapolis, IN Phone 317-359-5411 Email mattmueller(a,)fawilhelm.com Signature ) 0,-� HIdT SEE ATTACHED PLANS Print Name: Matt Mueller Encroachment Private storm sewer that carries storm water from the west side of Eddy Street to permitted underground Description: detention system(s) east of Eddy Street. Size of Varies. See plan sheets and request CL Road to R/W Line Varies. See plan sheets and request letter Encroachment letter Varies. See plan sheets and request Distance of R/W Varies. See plan sheets and request letter Amount in R/W letter The above information is to the best of my knowledge accurate and correct with regard to the encroachment in the City's right-of-way. Placed By: This Encroachment should not be Buildings are situated per approved setbacks and are permitted through building department. relocated because Encroachments are needed to Drovide aDDronriate access to them It has been determined that this encroachment in no way impairs the highway or with the free and safe flow of traffic thereon, and it is recommended that the encroachment be permitted to remain. BOARD OF PUBLIC WORKS APPROVAL BOARD OF PUBLIC WORKS Gary A. GJot, President Therese J. Do Member November 10, 2020 _gz:a _ c� `� u - Date Eliubeth A. Memdik, Member Jordan V. Gathers, Member 7'rl- ATTEST. RETURN FORM TO: �"`l`�`°�" Board of Public Works Joseph R. Molnar, Member _ Linda M. Martin, Clerk 1316 County -City Building 227 West Jefferson Boulevard South Bend, IN 46601 Phone: (574) 235-9251 • Fax: (574) 235-9171 a O N 19- ral I= 0" 50' 100' SCALE: 1 "=50' Q -� / I I I I I I I I I I I Ln I N / U \ Ln I (_o I I 00 1 M I o N \ 0O o \ / o r O - -CD Ln \ \ Ln I I I I I I I I I I I O \/ 0 \ 0 � --1---1---�1 _I_1 _ -� --- -1- --- -- --��--------- ----- \ \ -- Q -- ------ I--- -�- I, ® O / \ \ J -------------------------------------------- L(D - \ O 0 GEORGIANA AVENUE \ m =-- o — M _ --- % '--� 0I I I ® \'`� b V A\ \ � - lix Ti I .,\ G> 0� J lCD I I I I I o I I� I I I HCHWAff REALTY GROUP 30 S. MERIDIAN STREET, SUITE 1100 INDIANAPOLIS, IN 46204 CONTACT: TONY HALSEY TELEPHONE: 317-577-5600 FAX: 317-577-5605 BUCKINGHAM COMPANIES AMERICAN ■ STRUCTUREPOINT INC. ■ 7260 Shadeland Station I Indianapolis, Indiana 46256 TEL 317.547.5580 1 FAX 317.543.0270 www.structurepoint.com EDDY STREET COMMONS PHASE II ROAD &UTILITY INFRASTRUCTURE PLAN EDDY STREET & ST. VINCENT STREET SOUTH BEND, INDIANA CERTIFIED BY ISSUANCE INDEX DATE: 12/08/2017 PROJECT PHASE: CONSTRUCTION DOCUMENTS REVISION SCHEDULE NO. DESCRIPTION I DATE Project Number 2016.02695 OVERALL SITE PLAN C200 1316 COUNTY -CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND. INDIANA 46601-1830 CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR BOARD OF PUBLIC WORKS November 13, 2018 Thomas McGowan KRG Eddy Street Land II, LLC 30 S. Meridian St., Suite 1100 Indianapolis, IN 46204 RE: Dedicated Improvements Agreement Dear Mr. McGowan: PHONE 574/235-9251 Fax 574/ 235-9171 The Board of Public Works, at its meeting held on November 13, 2018, approved the above referenced Dedicated Improvements Agreement for Eddy Street Commons Phase II. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure GARY A. GILOT SUZANNA M. FRITZBERG ELIZABETH A. MARADIK JAMES A. MUELLER THERESE J. DORAU EDDY PHASE II DEDICATED IMPROVEMENTS AGREEMENT This Eddy Phase II Dedicated Improvements Agreement ("Agreement') is made on this aday of �)�2018 (the "Effective Date") by and between the City of South Bend, a municipal corporation existing under the laws of Indiana, acting by and through its Board of Public Works ("City") and KRG Eddy Street Land H, LLC, its successors and assigns ("Owner"), in order for the Owner to construct improvements in the public right-of-way along Eddy Street from Napoleon Boulevard to Howard Sheet; along St. Vincent Sheet from the alley west of Eddy Street to Georgiana Avenue; and along the alley west of Eddy Street from Howard Street to St. Vincent Street, (hereinafter, the "R.O.W."). Additional R.O.W. improvements will occur at the intersection of Howard Street and Eddy Street as well as south of Howard Sheet and Eddy to Corby Boulevard. WHEREAS, Owner intends to develop approximately 11.2 acres located along Eddy Sheet including the areas described above, for the purpose of a residential/cormnercial use, as depicted on Exhibit A, attached and incorporated herein; and WHEREAS, in order to develop the 11.2 acres depicted on Exhibit A, Owner intends to construct new sidewalks, curbs, signage, lighting, roadways, and utilities in the R.O.W., in the area depicted in Exhibit B (collectively referred to as "Dedicated hmprovements"); and WHEREAS, Owner obtained the long-term occupancy and closure of the R.O.W. in March of 2018 in order to construct said Dedicated Improvements; and NOW, THEREFORE, in consideration of the obligations, terns and conditions contained herein, the adequacy of which the parties expressly acknowledge, Owner and the City agree as follows: 1. Construction Inspection Owner shall provide City with drawings of record for the Dedicated Improvements which shall conform to City standards. Owner shall be responsible to provide inspection during construction and to ensure conformance to applicable City standards with respect to area planning, adequacy of design, and quality of construction. 2. Permits and Construction It shall be Owner's sole responsibility and expense to obtain any and all permits associated with the construction and installation of the Dedicated Improvements in the R.O.W. In order to minimize impacts to adjacent neighborhoods, the Owner agrees to use commercially reasonable efforts to provide adequate parking for construction -related staff during the entirety of the construction of the Dedicated Improvements. Owner may satisfy this obligation by providing an affidavit attesting that Owner's General Contractor agrees to provide parking and to endeavor to limit construction parking on residential streets at all times to the extent practicable. Owner shall direct its General Contractor to not conduct any construction during University of Notre Dame football home -game weekends. 3. System Development Charge For purposes of this section an equivalent residential unit ("ERU") shall mean a single family residence. For purposes of customers that are not single family residences, one ERU shall equal estimated wastewater flows of 310 gallons per day. No customer will be less than one ERU. For every new connection to the South Bend Municipal Sewer Works, a capital contribution of $1,145 shall be collected per ERU. All charges shall be paid to the City at the time the application for connection is filed. For all other types of structures, the ERU calculation shall be based upon the ratio of Average Daily Flow as computed pursuant to 327 IAC 3-6-11 in relationship to 310 gallons per day. For structures not listed in 327 IAC 3-6-11, the ERU shall be calculated as the relationship between the Average Daily Flow reported in the sewer capacity certification for the structure and 310 gallons per day. For customers with greater than 20 ERUs, the ERU shall be adjusted based upon the Peaking Factor as computed herein. The Peaking Factor shall be calculated by dividing the Peak Daily Flow by the Average Daily Flow, both as reported in the sewer capacity certification. In no event will a Peaking Factor less than 2.0 be used for purposes of the adjustment described in this Subsection. The Peaking Factor divided by 4.0 (the Peaking Factor for residential connections) will be multiplied by the number of ERUs for purposes of computing the capital contribution owed by the customer. The City may execute a contract with the customer authorizing an increase to the initial capital contribution based upon actual usage data that is collected after connection. 4. Performance Bond Owner agrees to provide the City with a performance bond for an amount equal to $3,030,932.25 in connection with Owner's construction of the Dedicated Improvements (the "Performance Bond"), being equal to 125% of the City -approved constructions costs of the Dedicated Improvements as listed on Exhibit D attached hereto. Upon the approval of the City of South Bend, Indiana Board of Public Works Project Completion Affidavit ("Project Completion Affidavit"), the obligation to maintain the Performance Bond shall cease without any further action or confirmation required from City. S. Maintenance Bond Owner agrees to provide the City with a maintenance bond equal to ten (10) percent of the total hard constructions cost of the Dedicated Improvements pursuant to this Agreement, and such bond shall remain in effect for three (3) years after dedication as described in Section 7 of this Agreement. 6. Term Subject to Section 12, the tern of this Agreement shall commence as of the Effective Date, and shall expire as of October 31, 2019, unless otherwise approved by the City Board of Public Works. 7. Dedication Owner understands the completion of the Dedicated Improvements and the dedication to the City is a requirement for the successful completion of the project. Upon completion of the construction of said Dedicated Improvements, Owner and City shall cooperate in good faith to ensure that said Dedicated Improvements are accepted by the City in a timely manner; provided that Owner shall not be required to incur any additional liability or any material cost in connection with such dedication. City's acceptance of the Dedicated Improvements and/or any easements required in connection therewith shall not be unreasonably conditioned, withheld or delayed. City acknowledges and agrees that Owner is a ground lessee, not the fee simple owner, of the property adjacent to the R.O.W., that any easements required by City must be approved by the University of Notre Dame Du Lac ("University"). Owner shall use commercially reasonable efforts to secure any required easements from University, with good faith cooperation from the City, so long as Owner is not required to undertake any additional and unreasonable liability or obligation and does not incur any unreasonable cost. 8. Indemnification Owner agrees and undertakes to indemnify and hold City, and its respective agents, employees, successors, and assigns, harmless from any liability, loss, costs, damages or expenses, including reasonable attorneys' fees, which City may suffer or incur as a result of any claims or actions which may be brought by any person or entity arising solely out of Owner's construction or maintenance of the Dedicated hnprovements in accordance with this Agreement. If any action is brought against City, its officers, employees, or contractors seeking to recover for any loss, costs, damages or expenses incurred solely in connection with Owner's construction of the Dedicated Improvements in accordance with this Agreement, Owner agrees to defend such action or proceedings at its own expense. This Section 8 survives the termination or expiration of this Agreement. 9.Insurance Owner, at Owner's sole expense, shall maintain during the term of this agreement, commercial general liability insurance in the amount not less than Five Million Dollars ($5,000,000) per occurrence. Owner agrees to include City as an additional insured on any such policy and produce to City a certificate of insurance evidencing the same -upon receipt of City's written request. Notwithstanding anything in the Agreement to the contrary, City does not waive any governmental immunity or liability limitations available to City under Indiana law, and notwithstanding any provisions of this Agreement to the contrary, in no event shall Owner be liable to City for any amount (whether as a result of insured event, pursuant to any inde inity provided by Owner hereunder, or otherwise) in excess of the maximum liability of City under applicable law (including, without limitation, the Indiana Tort Claims Act). Owner may terminate the insurance required hereunder upon the successful dedication of the Dedicated Improvements to City. 10. Assignment This Agreement may not be assigned by Owner without the express written consent of the City, which such consent may not be unreasonably withheld, conditioned or delayed; provided, that Owner may, without City's prior written consent, assign the Owner's rights and obligations contained within Section 12 of this Agreement to any person or entity acquiring the Owner's right, title and interest in and to Lots 1, 2, 3, 4, 9 or 10 of that certain Eddy Street Commons Section II minor subdivision plat recorded on March 1, 2018 as Instrument No. 1804819 in the office of the Recorder of St. Joseph County, Indiana, incorporated herein as Exhibit E. 11. Governing Law This Agreement shall be construed and interpreted according to the laws of the State of Indiana. 12. Additional Responsibilities of Parties This Agreement shall be binding upon the Owner, City, and the successors and permitted assigns of either. Notwithstanding the expiration of the term of this Agreement in accordance with Section 6, Owner shall continue to be responsible for maintaining ("Owner's Maintenance Obligation") certain components of the Dedicated Improvements, namely decorative bollards, landscape accent lighting, landscaping, hardscaping, signage specific to development (i.e. directional signage, building parking, signage, and other similar signage), storm water channel from Howard Street to Corby Boulevard, all private infrastructure within the R.O.W. (not limited to irrigation, private storm sewers and structures, and private storm storage facilities (collectively, the "Owner Maintenance Improvements"), obtaining any required City permits to perform any Owner's Maintenance Obligation in the R.O.W., as required by applicable City Code. For the avoidance of doubt, City shall be responsible for maintaining, and Owner shall have no obligation to maintain, roadway pavement, curbing, street lights and poles and associated improvements, standard street signage, snow and ice removal in, on or about the R.O.W., none of which shall be part of the Owner Maintenance Improvements. City hereby grants to Owner a non-exclusive right to enter in, on, over, under and across the R.O.W. and such other land owned by City as reasonably necessary or convenient for the purposes of performing Owner's Maintenance Obligation until such time as Owner is released fi-om Owner's Maintenance Obligation. This Section 12 shall survive the expiration of the other terms of this Agreement pursuant to Section 6 until the Ground Lease Expiration Date. As used herein, the "Ground Lease Expiration Date" means the expiration or earlier termination of Owner's leasehold interest in Lots 1, 2, 3, 4, 9 and 10 of that certain Eddy Street Cormmons Section II minor subdivision plat recorded on March 1, 2018 as Instrument No. 1804819 in the office of the Recorder of St. Joseph County, hidiana, pursuant to, as applicable, that certain ESC-II Commercial Ground Lease dated August 14, 2017 (as amended from time to time) by and between Owner, as lessee, and University, as lessor; and/or that certain GSH Ground Lease dated August 14, 2017 (as amended from time to time) by and between Owner, as lessee, and University, as lessor. 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. 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 the Parties. 15. Recording Neither Owner nor City shall cause or permit recording of this Agreement. However, simultaneously with the execution of this Agreement, the parties hereto shall execute and deliver to each other a memorandum of this Agreement concerning only the rights and obligations set forth in Section 12, such memorandum to be in substantially the form attached hereto as Exhibit C. 16. Corporate Authority The person signing on behalf of the Owner represents that he/she has been duly authorized to execute this Agreement on behalf of said Owner. IN WITNESS WHEREOF, the Owner and the City, through their duly authorized representatives, have caused this Agreement to be executed as of the day and year first written above. The parties have read and understand the foregoing terms of this Agreement and do, by their respective signatures hereby agree to its terms. [Remainder of page intentionally left blank.] KRG EDDY ST ET LAND II, LLC 1�1 Signal Thaw.yl K. '"It Printed Name Pres;j, + a,d C06 Title CITY OF SOUTH BEND, INDIANA BOARD9�O�F,, PUBLIC WORKS Gary A. Gilot, President Suzanna M. Fritzberg, Member James A. Mueller, Member The J. Diu, Member izabeth A. Maradik, Member ATTEST: Lima Martin, Clerk- i' �33a,s S3WOHNM01 i of z z i , -D o0 of i J i Q � i DC m i W m z J -o m oa Q i z 0 m Qa OIN DD �o L vc, 0001/ VZtlld kxrn�+ueSiMA�sv6ma+ I'3►.V i CROSS-REFERENCES: As to Lots 1 and 3: Instrument No. 1721844 As to Lots 2, 4, 9 and 10: Instrument No. 1721845 All in the office of the Recorder of St. Joseph County, Indiana MEMORANDUM OF AGREEMENT THIS MEMORANDUM OF AGREEMENT (this "Memorandum") is made as of the , 2018, by and between the City of South Bend, a municipal corporation existing under the laws of Indiana, acting by and through its Board of Public Works ("City"), and KRG Eddy Street Land II, LLC, an Indiana limited liability company ("Owner"). RECITALS A. City and Owner entered hito that certain Eddy Phase II Dedicated hmprovements Agreement of even date herewith (the "Agreement") pursuant to which City granted Owner certain rights, and Owner undertook certain obligations with respect to certain real property located in the City of South Bend, St. Joseph County, Indiana, as more particularly identified in the Agreement. B. City and Owner desire to execute and record a memorandum of the Agreement. NOW, THEREFORE, for andnr consideration of the foregoing premises, the Agreement and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Owner hereby represent and acknowledge the following: 1. Maintenance Obli ag tion. Pursuant to the Agreement, Owner shall be responsible for maintaining ("Owner's Maintenance Obligation") certain components of the Dedicated Improvements (defined in the Agreement), namely decorative bollards, landscape accent lighting, landscaping, hardscaping, signage specific to development (i.e. directional signage, building parking signage, and other similar signage), storm water channel from Howard Street to Corby Boulevard, all private infrastructure within the public right-of-way along Eddy Street from Napoleon Boulevard to Howard Street; along St. Vincent Street from the alley west of Eddy Street to Georgiana Avenue; and along the alley west of Eddy Street from Howard Street to St, Vincent Street (the "R.O.W.") (collectively, the "Owner Maintenance Improvements"). For the avoidance of doubt, City shall be responsible for maintaining, and Owner shall have no obligation to maintain, roadway pavement, curbing, street lights and poles and associated improvements, standard street signage, snow and ice removal in, on or about the R.O.W., none of which shall be part of the Owner Maintenance Improvements. City hereby grants to Owner a non-exclusive right to enter in, on, over, under and across the R.O.W. and such other land owned or controlled by City as Owner determines reasonably necessary or convenient for the purposes of performing Owner's Maintenance Obligation until such time as Owner is released from Owner's Maintenance Obligation. 2. Term of Maintenance Obligation. Owner's Maintenance Obligation shall cease to be an obligation of Owner on the Ground Lease Expiration Date. As used herein, the "Ground Lease Expiration Date" means the expiration or earlier termination of Owner's leasehold interest in Lots 1, 2, 3, 4, 9 and 10 of that certain Eddy Street Commons Section If minor subdivision plat recorded on March 1, 2018 as Instrument No. 1804819 in the office of the Recorder of St. Joseph County, Indiana, pursuant to, as applicable, that certain ESC-II Commercial Ground Lease dated August 14, 2017 (as amended from time to time) by and between Owner, as lessee, and UNIVERSITY OF NOTRE DAME DU LAC, an Indiana nonprofit corporation ("University"), as lessor; and/or that certain GSH Ground Lease dated August 14, 2017 (as amended from time to time) by and between Owner, as lessee, and University, as lessor. 3. Miscellaneous. City and Owner desire to record this Memorandum for the purpose of placing the public on notice of the Owner's Maintenance Obligation and City's granting to Owner of such rights as may be necessary or convenient for Owner's performance thereof pursuant to the terms and provisions of the Agreement. Nothing contained in this Memorandum is intended to or does modify or expand in any way any of the terms or provisions of the Agreement, and the Agreement shall determine and govern the rights and duties of City and Owner in all respects. 4. Counterparts. This Memorandum may be executed by the parties on separate. counterparts, each of which shall to be deemed an original, but all of which, taken together, shall constitute one and the same instrument. [Remainder of page intentionally blank.] OWNER: ICRG EDDY STREET LAND II, LLC, an Indiana left liability company �j By: f l� Printed Nam�: JhwnFs K. A( (jotja., Title: Yres;3�4 nrd coo STATE OF INDIANA ) ) SS. COUNTY OF On this Z3 day of O cip��t , 2018, before me, a notary public for said State and County, personally appeared i�w r(. <Ga n , the P"qde4 C• DD• of KRG Eddy Street Land II, LLC, who acknowledged the execution of the foregoing instrument on behalf of said company. WITNESS, my hand and Notarial Seal this [Notarial Seal] ttf4�`�ri�:1'IN iS9. �AltE2 n1R(lltc,f ate oP Indiana MAL i, IMV?Vr 1 1\135714SS1 rnnrea ]vame My Commission Expnes: County of Residence: 5��e IZozo �1Afl_i � This instrument was prepared by Aaron Aft, Esq., ICE MILLER LLP, One American Square, Suite 2900, Indianapolis, IN 46282. I affirm, under the penalries for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Aaron Aft, Esq.