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HomeMy WebLinkAboutSidewalk Construction Agreement - Development on Moreau Ct. – Toyo Seiko N. American Inc.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 TAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS May 9, 2023 Mr. Larry A. Catanzarite Toyo Seiko North American Inc. 3507 N. Olive Rd. South Bend, IN 46628 IgMc&toyoseiko-na.com RE: Sidewalk Construction Agreement Dear Mr. Catanzarite: At its May 9, 2023 meeting, the Board of Public Works approved the above referenced agreement for new sidewalk development on Moreau Ct., Project No. DP20-017. Enclosed please find a copy of the agreement for your records. If you have any further questions, please call this office at (574) 235-9251. Sincerely, /s/ Theresa Heffner Theresa Heffner, Clerk Enclosures TH/lh ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT JORDAN V. GATHERS MURRAY L. MILLER SIDEWALK CONSTRUCTION AGREEMENT This Sidewalk Construction Agreement ("Agreement") is made effective the 9th. day of `May . 2023 by and between the Toyo Seiko North American Inc. (the "Owner") and the City of South Bend, by and through its Board of Public Works, a municipal corporation existing under the laws of Indiana (the "City"), with offices located at 227 West Jefferson Boulevard, South Bend, Indiana 46601. RECITALS A. WHEREAS, pursuant to I.C. 36-9-6-2, the City Board of Public Works has supervisory authority over the City streets, alleys, sewers, public grounds, and other City ROW. B. WHEREAS, pursuant to Chapter 18 of the Municipal Code of the City of South Bend ("Code"), the City 36-9-6-13, the City has the express authority to control and supervise sidewalks throughout the City. C. WHEREAS, Section 18-35 of the Code outlines the duty of an abutting property owner to construct or repair a sidewalk bordering an owner's property in a manner consistent with the Code at the sole expense of the property owner. D. WHEREAS, the Owner holds fee title to the real property located at 3585 Moreau Ct. ("Property"). E. WHEREAS, upon review of the plans for the improvements proposed for the Property, the City advised Owner that a public sidewalk is required for the Property. F. WHEREAS, the Property does not currently have a sidewalk, there is no sidewalk adjacent to the Property boundaries, and the nearest public sidewalk to the Property is located at 5229 Nimtz Parkway, approximately 3,000ft from the Property. NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, the adequacy of which the parties expressly acknowledge, Owner and the City agree as follows: 1. Recitals True. The above recitals are true. 2. Installation of a Sidewalk on the Property (a) The installation of a public sidewalk on the Property shall not be required unless and until a public sidewalk is installed on either of the properties that are contiguous to the Property's boundaries ("Adjoining Properties"). (b) The absence of a public sidewalk on the Property prior to the installation of a public sidewalk on one of the Adjoining Properties shall not be the basis for a City regulatory authority to withhold any approval or permit that may be needed from the City during the course of construction or any final approval or permit, including a certificate of occupancy, at the conclusion of construction in order for the Owner to occupy. (c) Owner shall bear the entire cost of installing a public sidewalk on the Property upon demand made by the City. (d) Any public sidewalk installed on the Property by Owner shall be in conformance with City standards. 3. Reporting Requirements. If the City believes that all of the conditions precedent to the Owner's obligation to install a public sidewalk on the Property under this Agreement have been fulfilled, it shall provide written notice of such to the Owner. 4. Dispute Resolution. The Owner and the City shall use their best efforts to amicably and diligently resolve every controversy, question, claim, or dispute between them that arises out of this Agreement. In the event that the parties cannot fully resolve the dispute, the parties agree to use non -binding mediation by a mutually acceptable mediator to resolve the dispute. 5. Governing Law. This Agreement shall be deemed entered into in Indiana and shall be subject to the internal laws of the State of Indiana and any applicable federal law. 6. Legal Costs. The parties agree and stipulate that each party shall bear its own costs, expenses and attorneys' fees in relation to this Agreement. 7. Miscellaneous Provisions. (a) Notice. Any notice required to be given pursuant to this Agreement shall be delivered to the appropriate party by Certified Mail Return Receipt Requested, or by overnight mail or courier service, to the following addresses: If to the Owner: Toyo Seiko North American Inc. 3507 N Olive Road South Bend, IN 46628 Attn: Larry Catanzarite If to the City: Page 2 of 6 City of South Bend, Department of Public Works 1316 County -City Building 227 W. Jefferson Boulevard South Bend, Indiana 46601 Attn: Director of Public Works with a copy to: City of South Bend, Legal Department 1200 County -City Building 227 W. Jefferson Boulevard South Bend, Indiana 46601 Attn: Corporation Counsel A party may designate a different address for notification under this subsection by notifying the other parties of such change in writing. (b) Further Actions. Each party agrees to execute all documents and to take all actions reasonably necessary to comply with the provisions of this Agreement and its intent. (c) Waivers. No failure or delay by a party to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement, or to exercise any right or remedy upon the breach thereof, shall constitute a waiver of any such breach or any subsequent breach of such covenant, agreement, term or condition. No covenant, agreement, term, or condition of this Agreement and no breach thereof shall be waived, altered or modified except by written instrument. (d) Captions. The captions for each section and subsection are intended for convenience only. (e) Severability. If any provision, or any portion of any provision, of this Agreement is found to be invalid or unenforceable, such unenforceable provision, or unenforceable portion of such provision, shall be deemed severed from the remainder of this Agreement and shall not cause the remainder of this Agreement to be invalid or unenforceable. If any provision, or any portion of any provision, of this Agreement is deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law. Page 3 of 6 (f) Third Party Beneficiary. This Agreement is exclusively for the benefit of the parties hereto. It may not be enforced by any party other than the parties to this Agreement, and shall not give rise to liability to any third party. (g) Successors and Assigns. The benefits and obligations of this Agreement shall inure to and be binding upon the parties hereto and their respective successors and assigns. The parties cannot assign their rights or obligations under this Agreement except with the written consent of the other parties. (h) Modification. Any change to or modification of this Agreement must be in writing signed by the parties to this Agreement. (i) Entire Agreement. This Agreement contains the entire understanding and agreement of the parties hereto and supersedes all other prior agreements and understandings, written or oral between the parties. There are no oral agreements. (j) Preparation of Agreement. This Agreement was drafted and entered into after careful review and upon the advice of competent counsel; it shall not be construed more strongly for or against any party. (k) Execution. This Agreement may be executed in counterparts, all of which taken together shall constitute one document. (1) Authorization. Each person signing for an entity warrants that he or she is duly authorized to do so. Page 4 of 6 Toyo Seiko North American Inc. L n� MICHAEL J DANCH Notary Public - Seal St Joseph County - State of Indiana Commission Number NP0660529 STATE OF INDIANA My Commission Expires Noy 13, 2030 SS: COUNTY OF ST JOSEPH ) Before me the undersigned, a Notary Public in and for said County and State, this dayof'BtZ%L, 2023, appeared tome Mr. Larry Catanzarite, known tome to be, respectively, the representative for Toyo Seiko North American Inc., the Grantor, and acknowledged the execution of the foregoing Sidewalk Construction Agreement. IN WITNESS WHEREOF, I have hereunto subscribe m ffixed my official seal. Notary Public Resident of!Z&.k90,J2k County, I Commission expires: �l 1.3 1 20�J0 l�P 0 U(_0052&}rn, �k,e, i � , na 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. Michael J. Schmidt Prepared by Michael J. Schmidt, 1200 County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana, 46601. Page 5 of 6 CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Elizabeth A. Maradik, President Gary A. Gilot, Member Murray L. Miller, Member Page 6 of 6 WE Joseph R. Molnar, Vice President j 0c0 Jordan V. Gathers, Member Attest: Theresa M. Heffner, Clerk Date: May 9, 2023 SIDEWALK CONSTRUCTION AGREEMENT BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date: 4/37/2023 Name: Charlie Brach Department of Public Works — Engineering Division BPW Date: 5/9/2023 Phone Extension: 9246 Required Prior to Submittal to Board BPW Attorney X Attorney Name Michael Schmidt Dept. Attorney ❑ Attorney Name Purchasing 0 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: Sidewalk ❑ Ease./Encroach Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Special Contract Provisions Purpose/Description Information Tovo Seiko North American Inc. ❑ Yes ❑ If Yes, Approved by Purchasing ❑ No F1 MBE ❑ WBE Completed E-Verify Form Attached ❑ Nos Toyo Seiko DP20-017 N/A nn�PN/A N/A N/A N/A Agreement with Toyo Seiko North American Inc. for their new development on Moreau Ct. to install sidewalk along their property frontage at a time deemed appropriate by the City, which will be when surrounding areas are redeveloped in a way to necessitate the sidewalk connection. For Chance Orders Onlv Amount of ❑ Increase ❑ Decrease Previous Amount $ Current Percent of Change New Amount Total Percent of Change: Time Extension Amount: New Completion Date: Increase Decrease Increase Decrease