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HomeMy WebLinkAboutVentilation Easement Agreement - Encroachment Ventilation Shaft for Underground Garage – Commerce Center Development LLC  ELIZABETH A. MARADIK GARY A. GILOT JORDAN V. GATHERS JOSEPH R. MOLNAR MURRAY L. MILLER 1316 COUNTY-CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/ 235-9251 FAX 574/ 235-9171 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS September 28, 2021 Ms. Marcel Lebbin Commerce Center Development, LLC 401 E. Colfax Ave., Box #2 South Bend, IN 46617 RE: Ventilation Easement Agreement Dear Ms. Lebbin: At its September 28, 2021 meeting, the Board of Public Works approved the above referenced agreement for the encroachment of a ventilation shaft for the underground garage through the sidewalk along LaSalle Ave. Enclosed please find the original of the easement for your signature. Please sign, notarize, and have the easement recorded. Return the final document to lhensley@southbendin.gov. Please retain a copy for your records. If you have any further questions regarding this matter, please call this office at (574) 235-9251. Sincerely, /s/ Anne Fuchs Anne Fuchs, Clerk Enclosures AF/lh INTER-OFFICE MEMORANDUM Department of Law City of South Bend 227 W Jefferson Blvd TO: Board of Public Works, Anne Fuchs, Clara McDaniels FROM: Sandra Kennedy, Corporation Counsel SUBJECT: Ventilation Easement Agreement DATE: September 21, 2021 Members of the Board, Ms. Fuchs, and Ms. McDaniels: As you are aware, Commerce Center Development, LLC has erected a multi-story structure at LaSalle and the East Race Waterway. In constructing the building, the developer encroached on the sidewalk along LaSalle Avenue by installing a ventilation shaft for the underground garage the exits through the sidewalk, as depicted on Exhibit B to the Easement Agreement. The shaft is covered at the exit point by a steel grate. The Engineering team has determined that the encroachment does not unduly impede the usage of the sidewalk. Therefore, we ask that the Board approve the Ventilation Easement Agreement, which will be countersigned by Commerce Center Development and recorded by it. Thank you. -1- VENTILATION EASEMENT AGREEMENT THIS VENTILATION EASEMENT AGREEMENT (this “Agreement”) is made and entered into effective the 28th day of September 2021, by and among the City of South Bend, Indiana, acting by and through its Board of Public Works (the “City”) and Commerce Center Development LLC, an Indiana limited liability company (“CCD”) (each a “Party,” and collectively the “Parties”), upon the following terms and conditions: RECITALS A. CCD owns real property in South Bend, Indiana, on which it has constructed a multi-story mixed-use building (the "Development"), which property is more particularly described in Exhibit A, attached hereto (the “Real Property”). B. The City owns and maintains the right of way commonly known as the sidewalk at LaSalle Avenue, a portion of which abuts a portion of the Real Property. C. The Development includes an underground parking garage, appurtenant to which CCD has installed a ventilation system that encroaches underneath and upon the City's right of way at LaSalle Avenue (the "Encroachment"). D. The Parties desire to enter into this Agreement to allow the Encroachment to continue in the location depicted on Exhibit B, attached hereto, and more particularly described on Exhibit B-1, attached hereto (the "Easement Parcel"). NOW, THEREFORE, in consideration of ten dollars ($10.00) and other good and valuable consideration and of the covenants herein contained, the Parties hereby covenant and agree, that the Easement Parcel shall be and hereby is subject to the easement hereinafter set forth in this Agreement. 1. Recitals. The foregoing recitals are a part of and shall be integrated into this Agreement. 2. Ownership of Easement Parcel. The City represents and warrants that it is lawfully seized of the Easement Parcel, that it has full right and power to grant the easement contained herein, and that the Easement Parcel is free from all encumbrances. -2- 3. Acknowledgement of Encroachment and Grant of Easement. The Parties hereby acknowledge the Encroachment and the City agrees that the Encroachment has a limited impact on the Easement Parcel and the surrounding area. Therefore, the City grants to CCD and its successors and assigns a non-exclusive easement over, under and across the Easement Parcel to allow ventilation from the parking garage underneath the Development via the Encroachment. The Parties agree that CCD shall not have any right under this Agreement to enlarge the Encroachment or install improvements of any kind on the Easement Parcel other than such improvements reasonably required to maintain and operate the Encroachment. Notwithstanding the foregoing or anything herein to the contrary, no improvement to the Easement Parcel installed by CCD or its successors or assigns shall interfere with the safety of or unobstructed use of the right of way by pedestrians. 4. Maintenance; Restoration. CCD will, at its sole expense, maintain and repair in good order and condition the Easement Parcel. In the event CCD or its employees, contractors, or agents damage any part of the Easement Parcel or the public right- of-way along LaSalle Avenue, CCD shall promptly notify the City's Department of Public Works and restore such areas to substantially the same condition that existed immediately prior to such damage and to the City's standards. For purposes of this provision, normal wear and tear shall not be considered “damage” to the Easement Parcel. 5. Termination. This Agreement shall terminate at such time as the Encroachment is removed. Upon the removal of the Encroachment, CCD or its successor or assign shall restore the Easement Parcel to the City's standards. 6. Insurance. CCD shall at all applicable times maintain real property insurance covering the Easement Parcel, as well as a general liability policy providing the Company at least One Million Dollars ($1,000,000) in coverage naming the City as an additional insured. 7. Indemnification. CCD shall indemnify, defend, and hold the City, its departments, boards, officers, agents, directors, and employees harmless from and against any and all claims resulting from injury to any person caused by the negligent or intentional acts or omissions of the CCD. Notwithstanding the foregoing or anything in this Agreement to the contrary the City shall be solely liable for the actions of the City and any of its officials, employees, or agents. In addition, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 8. Reservation of Rights. The City reserves the free use of its parcel in any manner not inconsistent with the terms of this Agreement. 9. Covenant Running with the Land. The Parties intend that the rights and obligations set forth herein shall run with the land and create an equitable servitude burdening the Easement Parcel 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 CCD and its successors and assigns. 10. 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 CCD. -3- 11. Governing Law. 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. 12. Default. In the event of the breach of any term or condition of this Agreement by either Party which continues uncured for a period of thirty (30) days after written notice thereof by the other Party, the Party to whom performance is owed shall have the right to declare the other Party to be in default hereunder and pursue any and all available legal and equitable remedies. The prevailing Party in any litigation between the Parties shall be entitled to recover costs and reasonable attorneys’ fees. 13. Notices. All notices required or permitted to be given hereunder shall be effective when personally delivered to an executive officer of the Party or three (3) days after deposit in the United States Mail, correct postage prepaid for certified mailing, return receipt requested and addressed to the Party at the address listed below, or such other address as that Party may designate from time to time. 14. No Waiver. Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the Party asserted to have granted such waiver. 15. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in full force and effect unless amended or modified by mutual consent of the Parties. 16. Modifications. This Agreement shall not be modified except by a written instrument signed by the Parties. 17. Authority. The individuals executing this Agreement on behalf of the Parties each represent under oath that they are duly authorized to do so by the governing body of such Party, and that all necessary action to create and grant such authority has been taken and done. 18. Counterparts. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute one and the same instrument. Any electronically transmitted version of a manually executed original shall be deemed a manually executed original. 19. Cooperation. Each Party shall, at no additional cost to the other Party, 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 -4- Agreement. The 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 -5- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. COMMERCE CENTER DEVELOPMENT LLC, an Indiana limited liability company By: _________________________ 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 Commerce Center Development 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, being authorized so to do. WITNESS my hand and Notarial Seal this ___day___________, 2021. _______________________________ Notary Public _______________________________ Notary Public (Printed) My Commission Expires: My County of Residence: ______________________ ________________________________ -7- EXHIBIT A Real Property Lot 2 of the Commerce Center Minor Subdivision Secondary Plat Recorded in the Office of the St. Joseph County Recorder on December 30, 2019. Tax No. 018-5003-006602 -8- EXHIBIT B Easement Depiction Level 10' -0"Level 215' -10"Level B1-9' -2"LANDSCAPE AREA7' - 0"SIDEWALK6' - 6"4' - 1"PROPERTY LINEWALL LOUVERBELOW GRADE GARAGERETAIL SPACEPARKING GARAGESTEEL GRATESTREETEAST LASALLE AVENUEEAST LASALLE AVENUERETAIL SPACE4' - 1"SIDEWALK6' - 6"LANDSCAPE AREA7' - 0"STEEL GRATEAs indicated01/25/19SOUTH BEND, INSK-01Commerce Center DevelopmentCOMMERCE CENTER DEVELOPMENT1/4" = 1'-0"1WALL SECTION 5 Copy 11/8" = 1'-0"2Site-Vent Diagram -9- EXHIBIT B-1 Easement Parcel Description THAT PART OF THE NORTHWEST QUARTER OF SECTION 12, TOWNSHIP 37 NORTH, RANGE 2 EAST, CITY OF SOUTH BEND, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF LOT 3 OF COMMERCE CENTER MINOR SUBDIVISION, RECORDED AS INSTRUMENT NO. 2019-34703 IN THE OFFICE OF THE RECORDER OF ST. JOSEPH COUNTY, INDIANA; THENCE NORTH 89°52’51” EAST ALONG THE NORTH LINE OF SAID LOT 3 A DISTANCE OF 68.17 FEET TO THE POINT OF BEGINNING; THENCE NORTH 00°14’06” WEST A DISTANCE OF 0.91 FEET; THENCE NORTH 89°45’54” EAST A DISTANCE OF 16.70 FEET; THENCE SOUTH 00°14’06” EAST A DISTANCE OF 0.94 FEET TO SAID NORTH LOT LINE; THENCE SOUTH 89°52’51” WEST ALONG SAID NORTH LOT LINE A DISTANCE OF 16.70 FEET TO THE POINT OF BEGINNING. CONTAINING 15.448 SQUARE FEET, MORE OR LESS. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date September, 21 2021 Name Sandra Kennedy Department Legal BPW Date September 28, 2021 Phone Extension 9241 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer Officer Name BPW Attorney Attorney Name McDaniels Dept. Attorney Attorney Name Kennedy Purchasing Check the Appropriate Item Type – Required for All Submissions Professional Services Agreement Contract Proposal Open Market Contract Amendment/Addendum Special Purchase, QPA Bid Opening Bid Award Req. to Advertise Title Sheet Quote Opening Quote Award Reject Bids/Quotes Proposal Opening C/O & PCA No. PCA Chg. Order, No. Traffic Control Resolution Other: Ease./Encroach Required Information Company or Vendor Name Commerce Center Development, LLC New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Ventilation Easement Agreement allowing vent for Commerce Center underground garage in sidewalk along LaSalle Avenue. For Change Orders Only Amount of Increase Decrease $ ($ ) Previous Amount $ Current Percent of Change: Increase Decrease % ( %) New Amount $ Total Percent of Change: Increase Decrease % ( %) Time Extension Amount: New Completion Date: