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HomeMy WebLinkAbout#1449- Deed; PURCHASE AGREEMENT A part of the south half of the southwest quarter of Section 38 North, Range 3 east (Purchased from Richard A. Darnell - RE Maple Lane School property)PURCHASE AGREEMENT p part cf- south half of the southwt--5t quarter of Section 32, Township 38 North, Range 3 East Purch3seu from Richard A. Darnell (Maple ,,ane School) 11� 9004084 -89a45f YZ PURCHASE AGREEMENT THIS AGREEMENT IS ENTERED INTO PURSUANT TO I.C.36-1-I1-9 AND V E.C. 36-1-11-10: The Civil City of South Bend, Indiana, a municipal corporation �1 operating pursuant to the laws of the State of Indiana, and acting by and through its Board of Public Works and the Mayor, hereinafter referred to as "the City," agrees to purchase from Richard A. Darnell, hereinafter referred to as "Darnell," the following described real property located in St. Joseph County, Indiana: A part of the South Half of the Southwest Quarter of Section 32, Township 38 North, Range 3 East described as follows: !f. j Beginning at a point North 00° 21' 41" East (Assumed Bearing) a distance of 691.50 feet and South 89° 59' 50" "1 East a distance of 40.00 feet from the southwest corner of 1^' Section 32 (said point being on the East line of Ironwood Drive); thence South 890 59' 50" East a distance of 359.00 feet; thence South 000 21' 41" West, parallel with the West line of Section 32, a distance of 30.00 feet; thence North "] 891 59' 50" West a distance of 359.00 feet to the East line of Ironwood Drive; thence North 00° 21' 41" East, parallel with the West line of Section 32 a distance of 30.00 feet to the POINT OF BEGINNING and containing 0.247 acres, more or less, and including all improvements thereto, either permanently installed, or which belong to and are used in connection with the real estate, wherever located, (all referred to as the "real estate") for and in consideration of the lease to Darnell of the following described real estate located in St. Joseph County, Indiana (all referred to as the "leased premises"): A part of the South Half of the Southwest Quarter of section 32, Township 38 North, Range 3 East described as follows: Beginning at a point North 00' 21' 41" East (Assumed Bearing) a distance of 691.50 feet and South 890 59' 50" East a distance of 399.00 feet from the southwest corner of Section 32; thence North 000 21' 41" East a distance of 337.00 feet, parallel with the West line of Section 32; thence South 890 59' 50" East a distance of 130.00 feet; thence South 000 21' 41" West a distance of 287.31 feet, parallel with the West line of Section 32, to the point of curvature of a tangent curve to the right, having a central angle of 890 38' 2911, a radius of 50.00 feet and being subtended by a long chord of 70.49 feet; thence Southerly and Westerly along said curve a distance of 78.23 feet to a point of tangency of said curve; thence North 89° 59' 50" west a distance of 80.31 feet to the POINT OF BEGINNING and containing 0.994 acres, more or -` less. W S THE S S ETH = •a v '' Subject to the covenants and agreements herein menti ned, the City leases the leased premises to Darnell to have and to hold the same unto Darnell from the 1Bth day of December, 1989, to and including the 31st day of December, 2014. 1. Darnell hereby represents that it will use said leased premises for the following described purposes and for no other purposes whatsoever: use as a parking lot for the benefit of a bowling alley and restaurant complex to be located at the following described premises, in St. Joseph County, State of Indiana: A lot or parcel of land located in the South Half (1/2) of the Southwest Quarter (1/4) of Section Numbered 32, Township 38 North, Range 3 East, more particularly described as follows: Beginning at a point that is 660.50 feet North and 40 feet East of the Southeast corner of Section Number 31, Township 38 North, Range 3 East, which said beginning point is the East line of Ironwood Drive; thence North along the Easterly line of Ironwood Drive a distance of 346 feet; thence East 210 feet; thence North 100 feet; thence East 149 feet; thence South 446 feet; thence West 359 feet to the place of beginning, all in St. Joseph County, Indiana, excepting therefrom A part of the South Half of the Southwest Quarter of Section 32, Township 38 North, Range 3 East described as follows: Beginning at a point North 000 21' 4111 East (Assumed Bearing) a distance of 691.50 feet and South 89, 59, 50" East a distance of 40.00 feet from the southwest corner of Section 32 (said point being on the East line of Ironwood Drive); thence South 890 59' 50" East a distance of 359.00 feet; thence South 00* 21' 41" West, parallel with the West line of Section 32, a distance of 30.00 feet; thence North 890 59' 50" West a distance of 359.00 feet to the East line of Ironwood Drive; thence North 001 21' 41" East, parallel with the West line of Section 32 a distance of 30.00 feet to the POINT OF BEGINNING and containing 0.247 acres, more or less, more commonly known as, and hereafter referred to as, 1602 North Ironwood Drive, South Bend, Indiana. 2. It is understood by the parties that at the time of the execution of this Agreement approximately 14,958 feet of the premises at 1602 North Ironwood Drive are being used by the National Institute of Trial Advocacy for office and warehouse space and approximately 12,000 square feet of the premises at 1602 North Ironwood Drive are being used by St. Joseph Medical Center as warehouse space. It is further understood and agreed by the parties that Darnell plans to use the remaining 34,262 square feet, more or less, of the premises at 1602 North Ironwood Drive for the operation of a bowling alley and restaurant complex. The lease of the leased premises is conditioned upon the same being used by Darnell as a parking lot for the sole and exclusive benefit of a bowling alley and restaurant complex located at and occupying no less than 29,107 square feet, more or less, of the premises at 1602 North Ironwood Drive, and occupied and operated in conformance with all applicable state and local laws, codes and regulations. Use of the indicated 29,107 square feet, more or less, of the premises at 1602 North Ironwood Drive for other than the operation of a bowling alley and restaurant complex shall cause Darnell to be in default hereunder: Provided, however, that the City agrees to negotiate in good faith for the continued lease of the leased premises to Darnell under the same terms herein, for use as a parking lot for the benefit of some lawful use other than a bowling alley and restaurant complex located in the 29,107 square feet, more or less, of the premises at 1602 North Ironwood Drive, and will not unreasonably withhold its approval of the same. 3. For and in consideration of One Dollar ($1.00), the receipt of which is hereby acknowledged, Darnell shall have the option to renew this Lease and extend the term for an additional twenty-five (25) years at an additional rq_irtal of One Dollar ($1.00) per year. The remaining terms of the additional twenty-five (25) years of occupancy shall be the same terms as contained herein, unless - 2 - V modified by the mutual assent of the parties. Ninety (90) days prior to the expiration of the original lease term, Darnell shall give the City notice in writing of his desire to extend the term of the lease. The City hereby waives its right to decline to extend the lease for the additional twenty five (25) years, if, at the time of notification by Darnell of his desire to extend the term of the lease, Darnell is not in default hereunder. The right of renewal, as described herein, is available to Darnell if and only if the leased premises are to be used as parking for the benefit of a bowling alley and restaurant complex to be operated at and occupying not less than 29,107 square feet, more or less, of the premises at 1602 North Ironwood Drive, and to be occupying and operating in conformance with all applicable state and local laws, codes and regulations: Provided, however, that the City will not unreasonably withhold approval of an alternate lawful use to which the indicated 29,107 square feet, more or less, of the premises at 1602 North Ironwood Drive may be put so as to extend and maintain in effect the lease, and will negotiate in good faith toward such an agreement. 4. Darnell shall pay as rent for said leased premises the sum of $1.00 per year payable annually in advance. Rental payments shall be paid by the City, to the attention of the Controller of the City of South Bend, Indiana, 1400 County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana, 46601, or at such other place as the Controller of the City of South Bend, Indiana, hereinafter may designate for such purpose. The first payment shall be due at closing, with all subsequent payments being due on the first day of each calendar year. 5. Darnell shall construct a parking lot on the leased premises in conformance with all applicable state and local laws, codes and regulations. Prior to beginning such construction, Darnell shall submit for approval to the Board of Public Works for the City of South Bend, detailed plans, specifications and drawings, for said parking lot, which documents shall detail proposed construction activity, materials to be used and information concerning landscaping, lighting and other aspects of the project as may be required by the Board. 6. Any other additions, changes or alterations of any nature, may be made in or upon the leased premises only upon the receipt of prior written approval of the Board of Public Works. If Darnell desires to make such additions, changes or alterations, it shall submit to the Board of Public Works a written request to do so, along with detailed plans, specifications and drawings for said additions, alterations or changes, which documents shall detail proposed construction activity, materials to be used and information concerning any other aspect of the project as may be required by the Board. Within two (2) weeks of receiving such a request and supporting documentation, the Board of Public Works shall approve or deny the same. Approval shall not be unreasonably withheld. 7. Darnell shall make all approved alterations, changes or additions to the leased premises under Paragraphs 5 and 6 above, at its own expense, and shall not permit any liens, claims or demands of any nature to exist against the City or the leased premises. In the event any lien, claim or demand or any action for enforcing the same shall be filed or made against the City or said premises, Darnell shall defend the same at its own expense and Darnell hereby agrees to indemnify and hold harmless the City from any and all liability or expense arising by virtue of such claim, demand or lien, or the defense of any action filed to enforce the same. Any such alterations, changes or additions shall, when made, become a part of said leased premises and remain thereon as the property of the City at the termination of said Lease, at the option of the City. If the City shall require Darnell to restore the premises to the original condition in which it was before this Lease is executed, then Darnell shall restore said premises to such condition at its own expense. All of the provisions of this Lease with reference to the restoration of contracts, liens, demands and expenses shall apply to said restoration as well as the original alterations. - 3 - B. Darnell hereby grants to the City, its agents or employees, the right to enter upon said premises for the purpose of examining the same at reasonable hours. 9. Darnell agrees to defend, indemnify and hold harmless the City and its officers, agents and employees from any and all claim of any nature which may arise from the use of the leased premises, except for claims arising from the negligence of the City and its officers, agents and employees. Darnell further agrees tq obtain and maintain in effect at all times during the term of this Lease, liability insurance in the amount of $500,000.00 for injury or death to one person in any one occurrence and $2,000,000.00 for injury or death to all persons in that occurrence, naming the City of South Bend as co-insured on such policy, and shall file a Certificate of Insurance with the Board of Public Works upon the signing of this Agreement. In the event that the statutory tort claims limit against governmental entities is increased, the City may require that Darnell increase its liability insurance proportionately. 10. Darnell has examined and knows the condition of the leased premises and has received the same in good order and repair. Darnell agrees to keep the leased premises and any improvements thereto in good repair and in a clean, orderly and sanitary condition according to all City ordinances. Darnell shall be responsible for all maintenance of and repairs to said premises and improvements and upon the termination of this lease will yield up the leased premises to the city in good condition and repair. 11. Darnell shall pay all utilities including water, sewage, electrical, gas, heating, telephone of any other such charge against the premises during the term of this lease. 12. The City shall not be liable for damage causes by hidden defect or condition or failure of Darnell to keep the leased premises in repair, and shall not be liable for any damage causes or occasioned by or from plumbing, gas, water, steam, or any other pipes, or sewerage or the bursting or leaking of plumbing or of any plumbing or heating fixtures or waste or soil pipe existing in connection with the leased premises, nor for damage arising from any other source. The City shall not be liable for, and is hereby released and discharged from, any and all liability for any loss, injury or damage of any kind whatsoever, to persons or property that may be sustained by reason of the occupancy of said premises under the terms of this Agreement. 13. Darnell shall promptly pay and discharge all license taxes or special license fees that may be assessed or levied by any lawful authority against the property of Darnell against, or by virtue of the business conducted in or on the leased premises during the term of this Lease. 14. Darnell shall pay all real estate taxes assessed and becoming a lien against the leased premises from and after the date of the execution of this Agreement, up to and including those real estate taxes to be assessed in and becoming a lien during the calendar year in which the use of the lease premises terminates as provided herein. 15. Darnell covenants that should it make default in any agreements to pay the rent above -provided to be paid, or any part thereof, or in any other of the covenants and agreements herein contained, or if Darnell shall become insolvent, or shall make any assignment for the benefit of creditors, or if Darnell shall be adjudged bankrupt, or if Darnell's interest hereunder shall be sold, under execution or other legal process, or if Darnell shall file a voluntary Petition in Bankruptcy Court, or be placed in the hands of a receiver, it will at once deliver peaceable possession of said premises to the City, and, failing to do so, it shall be lawful for the City, its heirs or assigns, without notice, to declare said term ended, and to re-enter said leased premises, or any part thereof, either with or without process of law, and to expel, remove and put out Darnell or any person or persons occupying the same, using such - 4 - r-1 force as may be necessary so to do, and to repossess and use said premises as before the Lease, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenants. Thereupon, this Lease and everything contained on the part of the City to be done and performed shall cease, terminate and be utterly void, all at the election of the City. 16. It is expressly agreed that no waiver or apparent waiver, or failure of the City to require strict performance of any condition, covenant or agreement shall es -,op the City from enforcing such condition, covenant or agreeme�1t. 17. Darnell shall pay all reasonable costs, attorneys' fees and expenses incurred by the City in enforcing the covenants and agreements of this Lease. 18. Darnell shall not assign, transfer, sublease, pledge, surrender or otherwise encumber or dispose of the leased premises or any estate created by this lease, or any interest in any portion of the same, or permit any other person or persons, to occupy the premises without the prior approval of the City's Board of Public Works, which approval shall not be unreasonably withheld. The City acknowledges that Richard A. Darnell has assigned the premises at 1602 North Ironwood Drive to Darnell Harvey Bowling Center, an Indiana limited partnership, and that the City consents thereto. 19. Breach of any term, covenant and/or agreement of this Agreement by Darnell, whether the same results in Darnell's default hereunder and/or termination of the Lease, shall in no way impair the City's title to the real estate to be purchased hereunder, nor work a defeasance of the City to said real estate. 20. The minutes and decision of the June 22, 1989 meeting of the Board of Zoning Appeals for the City of South Bend, Indiana, which minutes reflect the granting of variances under Sections 21-109(a)(10) and 21-93 of the Municipal Code of the City of South Bend, Indiana, with respect to the leased premises, are attached hereto and incorporated herein and made a part hereof. 21. Prior to the execution of this Agreement, the City shall furnish to Darnell a lessee's title insurance policy covering the leased premises. CONDITIONS OF PURCHASE in addition to the other provisions of this Agreement, the City's obligations hereunder are subject to satisfaction of the following conditions unless waived in whole or in part by the City: 1. That all improvements on the real estate are located entirely within the bounds of the real estate and that there are no encroachments thereon and no existing violations of zoning ordinance or other restrictions applicable to the real estate. 2. That marketable title to the real estate is conveyed to the City subject only to: (a) taxes and assessments which the City has agreed to pay; (b) covenants, conditions, restrictions and easements, if any, set forth in a plat of record provided the same do not prohibit the use of real estate for use as a public right-of-way and that violations will not result in forfeiture of title; (c) zoning ordinances and other governmental restrictions affecting the use of property provided that no violations now exist; - 5 - 3. That possession of the real estate is delivered to the City in the condition existing at the time of this Agreement. SURVEY AND TITLE EVIDENCE Darnell shall furnish evidence of marketable title. If title is not marketable, the City may waive marketability and require that., Darnell furnish an owner's title insurance policy satisfactory to the City insuring for a dollar amount to be agreed upon by the parties. TAXES AND ASSESSMENTS The City assumes and agrees to pay all assessments for public improvements becoming a lien after closing and so much of the real estate taxes assessed for in becoming a lien during the calendar year in which closing occurs as shall be allocable to the City on and after closing. Darnell shall` --pay the balance of such taxes, using, for closing purposes, the present tax rate if the applicable tax rate has not been set, and provided that both installments of real estate taxes payable during the calendar year in which closing appears shall be paid by Darnell. CLOSING AND POSSESSION The transaction shall be closed at a time and place acceptable to the parties but in no event later than December 18, 1989. Either party may, however, request and receive a five-day extension at the closing date in the event the transaction cannot be closed due to delay in obtaining the title evidence, title clearance work, survey or loan approvals, provided that such delay does not result from the fault of the party requesting the extension. At the closing, Darnell shall deliver to the City an executed general warranty deed in recordable form conveying marketable title to the real estate subject only to exceptions permitted by this Agreement, together with an executed vendor's affidavit in the form most recently published by the Indianapolis Bat Association. Possession of the real estate shall be delivered to the City on the date of closing. FOR THE GRANTEE: ATTEST: �} It IJ.". O lv� FOR THE GRANTOR: CITY OF SOUTH BEND, BY ITS BOARD OF PUBLIC WORKS /7- JPM/CAO:DARNELLK - 6 - CERTIFICATION I, Jack A. Mathews, Secretary to and Recordkeeper for the Board of Zoning Appeals for the City of South Bend, Indiana, do hereby certify that the attached are a true and accurate copy of that portion of the minutes of the regular meeting of the Board of Zoning Appeals held on June 22, 1989 concerning Petition No. 3441, and a true and accurate copy of the decision of the Board of Zoning Appeals regarding Petition No. 3441. Jac A. Mathews, Secretary Boa of Zoning Appeals Date: November 15, 1989 JPM/C:2MATHEWS LJvr1J.\L trC �.Vlr1[rV f1d'.ix.A1-IJ THE CITY OF SOUTH BEND FINDINGS AND DECISION DEVELOPMENT STANDARD VARIANCE City of South Bend Richard Darnell- Interested Party The Appeal o£: 1200 County City Building PP for property at 2402 E. Rose Street No. 3441 Public Hearing held 22nd day of June 11 1989.1 Public Hearing closed 22nd day of June 19$9 We the members of the South Bend BZA now FIND: 1. That the DEVELOPMENT STANDARD VARIANCE requested WILL WILL NOT be injureous to public health, safety, morals, general welfare BECAUSE of the facts shown as follows: 2. 3. That the DEVELOPMENT STANDARD VARIANCE requested cause substantial adverse affect on the neigh- boring property BECAUSE of the facts shown as follows: That failure to grant the (special exception or variance, depending on the case) by the strict application of the terms of the Zoning Ordinance result in practical difficul- ties in the use of the property. WILL WILL NOT V' WILL__,/WILL NOT THE BOARD NOW DECIDES: That the Appeal No. 3441 BE AND IS HEREBY GRANTED , and further decides that the following condition shall be imposed: DATED 20, South Bend Board of Zoning Appeals YES NO YES NO YES _� NO YES ✓ NO YES' �NO N U T E S t June 22, 1989 Page 5 11. Secretary read Appeal #3437 of Joseph M. & Lisa M. Pietrzak, 1017 S. 33rd Street. Requesting Variances for encroachment into the required side yard setback with a detached garage, to have a second accessory building on the lot and to exceed the required height of 12' on the new garage. Property is zoned "A" Residential and in the "A" Height and Area. Joyce Davis excused herself from voting, due to a conflict of interest. Chairman read three letters in favor of petition. There now appeared Mr. & Mrs. Pietrzak, property owners. There were several people thereto speak in opposition of petition. There was some discussion as to the removal of one of the accessory buildings or constructing an addition onto existing accessory.' Nothing could be determined at that time, so the petition was held until the end of the meeting. 12. Secretary read Appeal #3438 of Roger Whisman, 1544 E. 4th Street, Mishawaka IN. Request for an interpretation of an allowable use district for a Flea Market and Auction. Property is located at 202 E. Ireland Road. Property is zoned "C" Commercial and in the "A" Height and Area. There now appeared Mr. Whisman, property owner. Mr. Whisman presented to the Board members several pages of what his proposal was. The Chairman suggested that the petition be tabled for one (1) month so that the members -could read over his proposal. At that suggestion, Joyce Davis moved to table petition for one (1) month to review additional information presented to them by the petitioner. 13. Secretary read Appeals 0439 & 3440 of Pierce & Associates for owners of properties located at 726 Cherry Tree Lane & 732 Cherry Tree Lane, requesting for encroachments into the required side yard setback with existings garages. Properties are zoned "A" Residential and in the "A" Height and Area. There were no remonstrators. Chair entertained a motion. Clement Miller moved to grant the Variances for 726 & 732 Cherry Tree Lane. Joyce Davis seconded motion. Variances granted. 14. Secretary read Appeal #3441 of Jenny Pitts-Manier, Asst. City Attorney for the City of South Bend, Richard Darnell, Interested party, 1200 County City Building. Request for Variances to provide parking non- contiguous to building and within the 500' requirement from entrance i and to provide parking on an "A" Residential lot. Property located at 2402 E. Rose Street. Property zoned "A" Residential and in the "A" Height and Area. ,.ram June 22, 1989 Page 6 There now appeared Jenny Pitts- Manier, Atty., along with David Roos & Mr. Darnell. Joyce Davis obstained from the voting on this petition, due to a conflict of interest. Jenny Pitts-Manier explained their porposal. There were no remonstrators. Chair entertained a motion. James Barkley moved to grant the two (2) Variances. Clement Puller seconded motion. Variances granted. A written lease agreement regarding the parking, must be submitted to our attorney's office. At this time, the Chairman returned to Appeal #3437 of Mr. Pietrzak, 1017 S. 33rd Street. it was decided by the owners to demolish existing accessory or move it to make one accessory building. Chair entertained a motion. James Barkley moved to grant the Variances on the basis of one accessory, whether it be moved or demolished, will be taken up with the Building Commissioner when owner gets the permit. Also the 16' height on the accessory was granted on the basis of no encroachment closer than what was indicated on the drawing. There being no further business to come before the Board of Zoning Appeals, the meeting was adjourned at 7:00 P.M. 9004084 PURCHASE AGREEMENT ` l THIS AGREEMENT IS ENTERED INTO PURSUANT TO I.C.36-1-11-9 AND I.C. 36-1-11-10: The Civil City of South Bend, Indiana, a municipal corporation t,t1 operating pursuant to the laws of the State of Indiana, and acting by and through its Board of Public Works and the Mayor, hereinafter + referred to as "the city," agrees to purchase from Richard A. Darnell, hereinafter referred to as "Darnell," the following described real property located in St. Joseph County, Indiana: A part of the South Half of the southwest Quarter of Section ti 32, Township 38 North, Range 3 East described as follows: k; ( Beginning at a point North 00° 21' 41" East (Assumed Bearing) a distance of 691.50 feet and South 89° 59' 50" ' tip m the southwest canner of East a distance of 40.00 feet fro - Section 32 (said point being on the East line of Ironwood Drive); thence South 89" 59' 50' East a distance of 359.00 feet; thence South 00° 21' 41" West, parallel with the West line of Section 32, a distance of 30.00 feet; thence North '- 89° 59' 50" West a distance of 359.00 feet to the East line of Ironwood Drive; thence North 00� 21' 41" East, parallel with the West line of Section 32 a distance of 30.00 feet to the POINT OF BEGINNING and containing 0.247 acres, more or less, and including all improvements thereto, either permanently installed, or which belong to and are used in connection with the real estate, wherever located, fall referred to as the "real estate") for and in consideration of the lease to Darnell of the following described real estate located in St. Joseph County, Indiana fall referred to as the "leased premises") - A part of the South Half of the Southwest Quarter of Section 32, Township 38 North, Range 3 East described as follows: Beginning at a point North 000 21' 41" East tAssumed 'Bearing) a distance of 691.50 feet and South 89° 59' 50" East a distance of 399.00 feet from the southwest corner of Section 32; thence North 00* 21' 41" East a distance of 337.00 feet, parallel with the West line of section 32; thence South 890 59' 50" East a distance of 130.00 feet; thence South 001 21' 41" West a distance of 287.31 feet, parallel with the West line of section 32, to the point of curvature of a tangent curve to the right, having a central angle of 891 38' 2911, a radius of 50.00 feet and being subtended by a long chord of 70.49 feet; thence Southerly and Westerly along said curve a distance of 78.23 feet to a point of tangency of said curve; thence North 89` 59' 5o" West a distance of 90.31 feet to the - POINT OF BEGINNING and containing 0.994 acres, more or - less. t � � • r �.� o h' Subject to the covenants and agreements herein menti ned, the city leases the leased premises to Darnell to have and to hold the same unto Darnell from the 18th day of December, 1989, to and including the 31st day of December, 2014. 1. Darnell hereby represents that it will use said leased premises for the following described purposes and for no other purposes whatsoever: use as a parking lot for the benefit of a .��. pppppp , bowling alley and restaurant complex to be located at the eafollowing described premises, in St. Joseph County, State A lot or parcel of land located in the south Half ection (1/2) of the Southwest38uNorth,arter (Pange 3 East, more Numbered 32, Township particularly described as follows: Beginning at a point that is 660.50 feet North and 40 feet East of the Southeast corner of Section Number gi ingTowPoint3isNthehEastnge 3 line ofst, which ironwood said beginning p Drive; thence North along the Easterly line of Ironwood Drive a distance of 346 feet, thenceEast149st 210 feet; thence North 100 feet, feet; thence South 446 feet-, thencet.est 359 feet to the place of beginning, all ineph County, Indiana, excepting therefrom A part of the south Half 8fNthe Southees3 Quarter of Section 32, Township 3 East described as follows: Beginning at a point North 00° 21' 41" East (Assumed Bearing) a distance of 691.50 feet and South 890 59' 50" East a distance of 40.00 feet from the southwest corner of Section 32 (said point being on the East line of Ironwood Drive); thence South 89° 59' 50" East a distance of 359-00 arallel wih feet; thence South 00° 21' 41ce of 30.00 the West line of Section 32, a distan feet; thence North 89° 59' 50,, west a distance of 359.00 feet to the East line of Ironwoodw rith ive; thence North 00° 21' 41" East, parallel the West line of Section 32 a distance of 30.002 feet to the POINT OF BEGINNING and containing acres, more or less, more commonly known as, andnd, hereafter referred to as, 1602 North Ironwood Drive, South 2. It is understood by the parties that at the time of the execution of this Agreement approximately 14,958 feet of the premises ex ex 1602 North Ironwood Drive are being used by the National Institute at of Trial Advocacy for office and warehouse space and approximately s at 02 be,ngOusedare feet of by St. JosepheMedicalecenter6as warehouseNorth nspace. It is Drive being the parties that Darnell plans to further understood and agreed by use the remaining 34,262 square feet, more or less, of the Premises at 1602 North rronwoad Drive for the operation of a bowling alley and of hl is condit-loned restaurant complex. The lease Drnellasaaparkiremises ng lot the sole and upon the same being used by exclusive benefit of a bowling alley and restaurant complere or located at and occupying no less than 29,107 square Of the premises at 1602 North ironwooand in conformance with all applicable regulations. Use of the indicated 29,107 square feet, more or less, the of the premises at 1602 alleyhIronwood and restauDrantefor complexhshallacause operation of a bowlinging Darnell to be in default o artaithrforeune:pthe aontinuedvleasehOf the City agrees to negotiate in g leased premises to Darnell under the same terms herein, for use as a parking lot for the benefit of some lawful use other than a bowling alley and restaurant complex located in the 29,107 square feet, more or less, of the premises at 1602North tIronwood Drive, and will not unreasonably withhold its approval he same. 3. For and in consideration of one Dollar ($1.00), the receipt of which is hereby acknowledged, Darnell shall have the option to renew this Lease and extend the term for an additional twenty-five (25) years at an additional rLkal of One Dollar ($1.00) per year. The remaiing occupancynshall ebesthe same of the aterms oaslcontained lherein, ve (25) years of unless - 2 - modified by the mutual assent of the parties. Ninety (9o) days prior to the expiration of the original lease term, Darnell shall give the City notice in writing of his desire to extend the term of the lease. The City hereby waives its right to decline to extend the lease for the additional twenty five (25) years, if, at the time of notification by Darnell of his desire to extend the term of the lease, Darnell is not in default hereunder. The right of renewal, as described herein, is available to Darnell if and only if the leased premises are to be used as parking for the benefit of aoowling alleless thorny and restaurant complex to be operated at and occupying n 29,107 square feet, more or less, of the premises at 1602 North ironwood Drive, and to be occupying and operating in conformance with all applicable state and local laws, codes snot uand regulationstsonably ld Provided, however, that the City approval of an alternate lawful use to which the indicated 29,107 square feet, more or less, of the premises at 1602 North Ironwood Drive may ynbe put ateeinsgoodto eiaith toward xtend and ysuch anntain nagreement. effect e lease, and ii 4. Darnell shall pay as rent for said leased premises the sum be pOf 1.00 per year y, payable nnually in attention ofvthee. Rental Controllerpof the City of paid by the City, Building, 227 West Jefferson South Bend, Indiana, 1400 County -City Boulevard, south Bend, Indiana, 46601, or at such other place as the Controller of the City of South Bend, Indiana, shallbedue hereinaftermay designate for such purpose. The first paym closing, with all subsequent payments being due on the first day of each calendar year. 5. Darnell shall construct a parking lot on the leased premises in conformance with all applicable state and local laws, codes and regulations. Prior to beginning such construction, Darnell shall submit for approval to the Board of Public Works for the City ysaid Of south Bend, detailed plans, specifications and drawings, forparking lot, which documents shall detail proposed construction activity, materials to be used and information concerning landscaping, lighting and other aspects of the project as may be required by the Board. 6. Any other additions, changes or alterations of any nature, may be made in or upon the leased premises only upon the receipt of prior written approval of the Board of Public Works. if Darnell desires to make such additions, changes or alterations, it shall submit to the Board of Public Works and drawings request tsto do so, addaloitions, with detailed plans, documents alterations or chvity, materialsobeused land einformation tail ed construction activity, concerning any other aspect of the project as may be uandd by the Board. Within two (2) weeks of receiving such a request Public denyshall cthensame. Approval, shall documentationthe $not be oard f nreasonablyswi hheldpprove or 7. Darnell shall make all approved alterations, changes or additions to the leased premises under Paragraphs 5 and 6 above, at its own expense, and shall not permit any liens, claims or demands of any nature to exist against the city or the leased premises. In the event any lien, claim or demand or any action for enforcing the same nst the City or said premises, Darnell shalt be filed or made agai own expense and Darnell hereby agrees to shall defend the same at its ll indemnify and hold virtues Oftsuchlclaim, demandnoralien, orlthe o expense arising by defense of any action filed to enforce the same. Any such alterations, changes or additions shall, when made, become a part of said leased premises and remain thereon as the property of the City at the termination of said Lease, at the option of the City. if the City shall require Darnell to restore the premises to the original condition in which it was before this Lease is executed, then Darnell shall restore said premises to such condition at its own expense. All of the provisions of this Lease with reference to the restoration of contracts, liens, demands and expenses shall apply to said restoration as well as the original alterations. - 3 - 8. Darnell hereby grants to the City, its agents or employees, the right to enter upon said premises for the purpose of examining the same at reasonable hours. ' 9. Darnell agrees to defend, indemnify and hold harmless the City and its officers, agents anthe mplo eesof tfrom he lea any and all leclaim of any nature which may of the City except for claims arising from the negligence and its officers, agents and employees. Darnell further agrees to obtain and maintain in effect at all times during injuryor Lease, liability insurance o etoccurrence andount of 5$2,000,O0000,000.00 f00 for death to one person in any the City of injury or death to all persons in that °candrshall fence ilena Certificate South Bend as co-insured on such policy. of this of Insurance with the Board of Public Works upon the signing against ed the City may require that Darnell Agreement. In the event that the statutory tort claims limit Darnell governmental entities is inc realsurance proportionatelY. increase its liability lo. Darnell has examined and knows the condition of the leased eived the same in good mproerder nd pthere thereto premises and has rec agrees to keep the leased premises and any ivments good repair and in a clean, orderly and sanitary condition according to all City ordinances. Darnell d peandnsible for i improvementsandupon maintenance of and repairs to said premises the termination of this lease will yield up the leased premises to the City in good condition and repair. 11. Darnell shall pay all utilities including water, sewage, electrical, gas, heating, telephone of any other such charge against the premises during the term of this lease. 12. The City shall not be liable for damage causes by hidden defect or condition or failure of Darnell to keep the leased premises es or in repair, and shall not be liable for dstegam, or any other occasioned by or from plumbing, gas, of plumbing or of any pipes, or sewerage or the bursting or leaking fixtures or waste or soil p i e existing in plumbing or heating p connection with the leased ebe liablerfor, andis. any other source. The City and all liability for any loss, released and discharged from, anytht injury or damage of any kind whatsoever, to ofrsaid premises undera may be sustained by reason of the occupancy the terms of this Agreement. es 13. Darnell shall promptly pay and discharge all license any awful ed or levie or special license fees theTtyaofbDarnell sagainst, ordbyyvirtue of authority against the prop the business conducted in or on the leased premises during the arm of this LaasO. 14. Darnell shall pay all real estate taxes assessed and becoming a lien against the leased premises from and ndingter thoseereale of the execution of this Agreement, up estate taxes to be assessed in and becoming a lien during the calendar year in which the use of the lease premises terminates as provided herein. e default any 15. Darnell cthen ent above -provided tots kbe paid, ornany part agreements to pay other of the covenants and agreements herein thereof, or in any contained, or if Darnell shall became insolvent, or shall shall e any assignment for the of cred$ or if Darnel or iflDarnell'sltorsinterest hereunderlshall beesold, adjudged bankrupt, if under execution or other legal process, or be placedlin the handsof voluntary Petition in Bankruptcyon of a receiver, it will at once deliver to doeable so, itshalllawfulfor premises to the City, and, failing the City, its heirs or assigns, without notice, to declare said term ended, and to re-enter said leased premises, or any part thereof, ut either with or wlthoersonoorspe�s nswaccupyingethe lsamemove d usingsuch out Darnell or any p - 4 - 4 ME force as may be necessary so to do, and to repossess and use said premises as before the Lease, without prejudice to any reb=each of ich might otherwise be used for arrears of rent hi gprecedingtined on the covenants. Thereupon, this Lease erformedrshallgcease, terminate and part of the City to be done and p be utterly void, all at the election of the City, sly agreed that no waiver or apparent 16. It is expreswaiver, or o require strict performance of any condition, failure of the City t covenant or agreement shall estop the City from enforcing such condition, covenant or agreement. attorneys' fees and 17. Darnell shall pay all reasonable cty�escovenants and expenses incurred by the City in enforcing agreements of this Lease. sublease, pledge, transfer, eased premises or is. Darnell shall not ass=got dispose of the 1 ortion of surrender or otherwise entomb' to occupy the any estate created by this lease, or any interest in any the same, or Permit any other person or persons, of the City's Board of Public premises without the Prior approval withheld. The City works, which approval shall not be unreasonably Darnell has assigned the Center�san at acknowledges that Richard A. Bowling ity consents thereto. 1602 North Ironwood and that the C Drive to Darnell Harvey Indiana limited partnership, 19. Breach of any term, covenant aresultsgineDarnell'sment of hdefault Agreement by Darnell, whether the same shall in no way impair the hereunder and/or termination of the Lease, 's title to the real estate to be purchased hereunder, nor work City to said real estate. defeasance of the City 1989 meeting of the Appeals for the City of south Bend, Indiana, which 20 The minutes and decision of the June , Board of Zoning PP ranting of variances under Sections of South minutes reflect the g al Code of the aTetattached 21-109(a)(10) and 21- 3 Of the theleasedpremises, Bend, Indiana, incorporated herein and made a Part hereof. hereto and reement, the City shall 21. Prior to the execution of this A4 policy covering the furnish to Darnell a lessee's title insurance leased premises. CONDITIONS OF PURCHASE provisions of this Agreement, the City's eov to satisfaction of the following In addition to the other P art by the City, obligations hereunder are subject or in P conditions unless waived in 1. That all improvements on the real estate are located entirely within the bounds of the real estate and that there are no encroachmentsanceOrhother restrictions violations of zoningexisting o applicable to the real estate. 2. That marketable title to the real estate is conveyed to the City sub? (a) taxes and assessments which the City has agreed to pay: (b) covenants, conditions, restrictions and easements, if any, set forth in a plat of record public right-of-way and that estate for use as a P do not prohibit the use provided the same of tea violations will not result in forfeiture of title; (c) zoning ordinances and other governmental restrictions affecting the use of property Provided that no violations now exist; - 5 - ]. That possession of the real estate is delivered to the City in the condition existing at the time of this Agreement. SURVEY AND TITLE EVIDENCE Darnell shall furnish evidence of marketable title. If title is not marketable, the City may waive marketability and require that., Darnell furnish an owner's title insurance policy satisfactory to the City insuring for a dollar amount to be agreed upon by the parties. TAXES AND ASSESSMENTS The city assumes and agrees to pay all assessments for public improvements becoming a lien after closing and so much of the real estate taxes assessed for in becoming a lien during the calendar year in which closing occurs as shy' l be allocable to the City on and after closing. Darnell shall pay the balance of such taxes, using, for closing purposes, the present tax rate if the applicable tax rate has not been set, and provided that both installments of real estate taxes payable during the calendar year in which closing appears be paid by Darnell. CLOSING AND POSSESSION The transaction shall be closed at a time and place acceptable to the parties but in no event later than December 18, 1989- Either party may, however, request and receive a five-day extension at the closing date in the event the transaction cannot be closed due to delay in obtaining the title evidence, title clearance work, survey or loan approvals, provided that such delay does not result from the fault of the party requesting the extension. At the closing, Darnell shall deliver to the city an executed general warranty deed in recordable form conveying marketable title to the real estate subject only to exceptions permitted by this Agreement, together with an executed vendor's affidavit in the form most recently published by the Indianapolis Bar Association. Possession of the real estate shall be delivered to the City on the date of closing. FOR THE GRANTEE: CITY OF SOUTH BEND, BY ITS BOARD OF PUBLIC WORKS ATTEST: ,(J FOR THE GRANTOR: Y_. JPM/CAO:DARNELLK 6 - CERTIFICATION I, Jack A. Mathews, Secretary to and Recordkeeper for the Board of Zoning Appeals for the City of South Bend, Indiana, do hereby certify that the attached are a true and accurate copy of that portion of the minutes of the regular meeting of the Board of Zoning Appeals held on June 22, 1989 concerning Petition No. 3441, and a true and accurate copy of the decision of the Board of Zoning Appeals regarding Petition No. 3441. Jac A. Mathews, secretary Boa of Zoning Appeals Date: November 15, 1989 JPM/C:2MATHEWS a�v�A�tI' VC [. vav lar lr "rer_rA1Lb THE CITY OF SOUTH BEND FINDINGS AND DECISION DEVELOPMENT STANDARD VARIANCE City of South Bend Richard Darnell- Interested Party The Appeal of: 1200 County City Building ---for -12ropprtE. Ro s g Street —No.- 3441 Public Hearing held 22 d day of June , 1989, Public Hearing closed 22nd day of June , 1989 We the members of the South Bend BZA now FIND: 1. That the DEVELOPMENT STANDARD VARIANCE requested be injureous to public health, safety, morals, general welfare BECAUSE of the facts shown as follows: WILL WILL NOT J/ 2. That the DEVELOPMENT STANDARD VARIANCE requested WILL WILL NOT V cause substantial adverse affect on the neigh- boring property BECAUSE of the facts shown as follows: 3. That failure to grant the (special exception or variance, depending on .the case) WILL WILL NOT_ by the strict application of the terms of the Zoning Ordinance result in practical difficul- ties in the use of the property. -pow THE BOARD NOW DECIDES: That the Appeal No. 3441 BE AND IS HEREBY GRANTED , and further decides that the following condition shall be imposed: n— D _ c _ DATED NAIV� South Bend Board of Zoning Appeals YES NO YES NO YES �� NO YES s/ NO YES v NO N U TVE✓S - June 22, 1989 Page S 11. Secretary read Appeal #3437 33rd Street. Requesting of Joseph Variances M. & Lisa M. Pietrzak, 1017 S. side yard setback with a detached for encroachment into the required building on the lot and to exceed garage, to have a second accessory the required height of 12' new garage. Property is and Area. zoned "A" Residential and in the "A" on the Height Joyce Davis excused herself from voting, due to a conflict of interest. Chairman read three letters in favor of petition. There now appeared Mr_ & Mrs. Pietrzak, Property owners. There were several people thereto speak in opposition of petition. There was some discussion as to the removal of one of the accessory buildings or constructing an addition onto existing accessory. Nothing could be determined at that time, so the petition was held until the end of the meeting. 12. Secretary read Appeal f3438 of Roger Whisman, 1544 E. 4th Street, Mishawaka IN. Request for an interpretation of an allowable use district for a Flea Market and Auction. Property is located at 202 F. Ireland Road. Property 11 is zoned "C" Commercial and in the "A" Height and Area. There now appeared Mr. Whisman, property owner. Mr. Whisman presented to the Board members several pages of what his proposal was. The Chairman suggested that the petition be tabled for one (1) month so that the members -could read over his proposal. At that suggestion, Joyce Davis moved to table petition for one (1) month to review additional information presented to them by the petitioner. 13. Secretary read Appeals #3439 & 3440 of Pierce & Associates for owners of properties located at 726 Cherry Tree Lane & 732 Cherry'Tree Lane, requesting for encroachments into the required side yard setback with existings garages. Properties are zoned "A" Residential and in the "A" Height and Area. / 14. There were no remonstrators. Chair entertained a motion. Clement Miller moved to grant the Variances for 726 & 732 Cherry Tree Lane. Joyce Davis seconded motion. Variances granted. Secretary read Appeal 43441 of Jenny Pitts-Manier, Asst. City Attorney for the City of South Bend, Richard Darnell, Interested party, 1200 County City Building. Request for Variances to provide parking non- contiguous to building and within the 500' requirement from entrance and to provide parking on an "A" Residential lot. Property located at 2402 E. Rose Street. Property zoned "A" Residential and in the "A" Height and Area. AV U T .June 22, 1989 Page 6 There now appeared Jenny Pitts- Manier, Atty., along with David Roos & Mr. Darnell. Joyce Davis obstained from the voting on this petition, due to a conflict of interest. Jenny Pitts-Manier explained their porposal. There were no remonstrators. Chair entertained a motion. James Barkley moved to grant the two (2) Variances. Clement Miller seconded motion.. Variances granted. A written lease agreement regarding the parking, must be submitted to our attorney's office. At this time, the Chairman returned to Appeal #3437 of Mr. Pietrzak, 1017 S. 33rd Street. It was decided by the owners to demolish existing accessory or move it to make one accessory building. Chair entertained a motion. James Barkley moved to grant the Variances on the basis of one accessory, whether it be moved or demolished, will be taken up with the Building Commissioner when owner gets the permit. Also the 16' height on the accessory was granted on the basis of no encroachment closer than what was indicated on the drawing. There being no further business to come before the Board of Zoning Appeals, the meeting was adjourned at 7:00 P.M.