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HomeMy WebLinkAboutDedicated Improvements Agreement - Supermercado San Miguel-TX Concrete1316 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 February 25, 2025 Ms. Erika Rodriguez Panaderia Y Supermercado San Miguel, Inc., 2712 W. Western Ave. South Bend, IN 46619 Erirodr07kgmail.com RE: Dedicated Improvements Agreement Dear Ms. Rodriguez: At its February 25, 2025 meeting, the Board of Public Works approved the above referenced agreement for reconstruction of city sidewalks and light pole foundations along Olive St. frontage of 2401 W. Western Ave. development. 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/hh ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT MURRAY L. MILLER BREANA N. MIcou DEDICATED IMPROVEMENTS AGREEMENT This Dedicated Improvements Agreement (the "Agreement") is made on this _18_ day of November_ of _2024,_by and between the City of South Bend, Indiana, an Indiana municipal corporation (the "City"), acting by and through its Board of Public Works (the "Board"), and Panaderia y Supermercado San Miguel, Inc., d.b.a. Mor Mex, a _corporation_ with an address of 2401 W Western Ave, South Bend, IN 46619_ (the "Owner"), in order for the Owner to temporarily occupy and construct or re -construct dedicated improvements in the public right-of- way (the "R.O.W.") along _Olive Street within the City's municipal boundaries (the "Project Area"). WHEREAS, the City holds title to the Project Area, including the R.O.W.; and WHEREAS, Owner's project site is located at the property with address of 2401 Western Avenue_ within the City; and WHEREAS, pursuant to the City's municipal code, the City's Engineering Department has granted Owner a permit for the temporary occupancy and a partial temporary closure of the Olive Street R.O.W. and Western Avenue R.O.W. in order to facilitate construction of Owner's project adjacent thereto; and WHEREAS, in connection with the needs of Owner's project, Owner desires to reconstruct sidewalk, remove brick pavers, add tree lawn, and improve street light foundations_; and WHEREAS, Owner intends to repair and/or replace the sidewalks, trails, curbs, lighting, landscaping, trees, brick pavers, and drive approaches, and patch the roadway in the R.O.W. ("Dedicated Improvements") as more particularly set forth on Exhibit A, which is attached hereto and incorporated herein by reference, upon the completion of its temporary occupancy or use of or in the relevant R.O.W.; and WHEREAS, Owner desires the temporary occupancy and partial temporary closure of the R.O.W. from time to time in order to facilitate Owner's project and construct the Dedicated Improvements in the R.O.W.; and WHEREAS, in order for the Board to grant long term occupancy of the R.O.W., this Agreement must be executed. NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, and the above recitals which are incorporated into this Agreement, the adequacy of which consideration the parties expressly acknowledge, Owner and the City agree as follows: 1. Recitals The parties hereto acknowledge and agree that the foregoing recitals are incorporated herein as a part of this Agreement. 2. Construction Inspection The Owner has provided the City with Exhibit A, which depicts drawings of the Dedicated Improvements, which the City acknowledges conforms to the City's standards. The Owner shall allow the City to inspect the Dedicated Improvements during construction to ensure conformance to the agreed standards set forth in Exhibit A, in particular with regard to area planning, adequacy of design, and quality of construction. The Owner shall contact the City's Engineering Department at least two (2) business days in advance to arrange for the attendance of a City inspector at key milestones throughout work within the R.O.W. Key milestones shall include but not limited to: hot mix asphalt placement, placement of any drainage apparatus, concrete placement, light installation, and tree installation. The Owner agrees to perform any necessary adjustments as reasonably required by the City, in the sole discretion of the City Engineer or her designee, as a result of such inspections. The failure of Owner to comply with this Section 1 shall be a material breach of this Agreement. 3. Permits It shall be Owner's sole responsibility and expense to obtain all permits associated with the construction and installation of the Dedicated Improvements in the R.O.W. and to comply with all applicable laws. Owner's failure to comply with this Section 2 shall be a material breach of this Agreement. 4. Performance Bond Concurrently upon the execution of this Agreement or within seven (7) days thereof, Owner shall provide the City with a performance bond for an amount equal to one hundred twenty—five percent (125%) of the construction cost covering all work performed or to be performed pursuant to this Agreement. Owner's failure to provide the performance bond as prescribed herein shall cause this Agreement to be immediately terminated and of no effect, without the requirement of notice. 5. Maintenance Bond Within ten (10) days of City's acceptance of the Dedicated Improvements, Owner shall provide the City with a maintenance bond equal to ten percent (10%) of the construction cost covering all work performed or to be performed pursuant to this Agreement, and such bond shall remain in effect for three (3) years after dedication as described in Section 6 below. 6. Term Except as otherwise provided herein, this Agreement shall continue for a period of sixteen (16) months from the Effective Date of this Agreement, or upon the issuance of the relevant occupancy permit(s), whichever occurs last. 7. Dedication The Owner understands the dedication of the Dedicated Improvements to the City is a requirement for occupancy. Upon completion of the construction of the Dedicated Improvements, substantially as depicted in Exhibit A, the Owner shall use its best efforts to work with the City to ensure that the Dedicated Improvements are dedicated to the City in a timely manner. It is understood by Owner that no dedication shall be accepted by the City until all required easements have been conveyed, accepted, and recorded by the City. Additionally, prior to dedication, the following must be satisfied: a. All parts and labor must meet the requirements stated in the design specifications as presented to and approved by the City Engineering Department. b. Owner must provide copies of test reports or cut sheets on all materials supplied. c. Owner must provide As -Built drawings in accordance with the City of South Bend Prevailing Specifications for Public Works, which may be found at https:Hsouthbendin.gov/wp-content/uploads/2018/07/SBN-Spec-Stand-FINAL-062618- REV-2_BPWSi ng ature.pdf Owner's failure to comply with this Section 6 shall be a material breach of this Agreement. 7. Indemnification Owner shall indemnify, defend, and hold the City, and its respective agents, employees, successors, and assigns, harmless from any liability, loss, costs, damages or expenses, including attorneys' fees, which the City may suffer or incur as a result of any claims or actions which may be brought by any person or entity arising out of this Agreement. If any action is brought against the City or its respective agents, employees, successors, or assigns, in connection with this Agreement, Owner agrees to defend such action or proceedings at its own expense, using counsel acceptable to the City, and to pay promptly any judgment rendered therein. 8. Insurance Owner, at Owner's sole expense, shall maintain during the term of this Agreement, commercial general liability insurance covering the company and activity in the amount not less than Five Million Dollars ($5,000,000) per occurrence. Owner agrees to include the City as an additional insured on any such policy and produce to the City a certificate of insurance evidencing the same within ten (10) days of the execution hereof. To the extent that the City is harmed as a result of the construction of the Dedicated Improvements, Owner hereby grants the City first priority on any proceeds received from the Owner's insurance. Notwithstanding anything in the Agreement to the contrary, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 9. Assignment This Agreement may not be assigned by Owner, including through a Change in Control event, without the express written consent of the City which such consent may be withheld for any reason. A Change in Control event shall mean either (a) the merger of Owner into or with an unrelated third -party entity, (b) a transaction or series of related transactions in which a third party becomes the beneficial owner of fifty percent (50%) or more of the membership units of Owner, or (c) the sale of all or substantially all of the assets of Owner. A violation of this Section 9 shall be a material breach of this Agreement. 10. Material Breach The parties agree that a material breach of this Agreement by Owner would have a material adverse effect upon the City. In the event of a breach by Owner of any of its obligations hereunder, the Owner shall cure such breach, if curable, within seven (7) days after written notice thereof from the City. Upon the failure by the Owner to cure any such breach, or if the breach is material and incurable, the City may immediately terminate this Agreement and call on the performance bond. 11. Governing Law and Jurisdiction This Agreement shall be construed and interpreted according to the laws of the State of Indiana and shall be enforced in any court of competent jurisdiction in St. Joseph County, Indiana. 12. 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. 13. Waiver No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. The waiver will not be construed to be a waiver of any succeeding breach of any such provision, a waiver of the provision itself, or a waiver of any other provisions of this Agreement. No delay or omission on the part of either party to exercise or avail itself of any right, power, or privilege that it has or may have under this Agreement will operate as a waiver of any breach or default 14. Time Time is of the essence of this Agreement. 15. Entire Agreement This Agreement sets forth the entire agreement and understanding between the Owner and the City as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them. 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 Effective Date. The parties have read and understand the foregoing terms of this Agreement and do, by their respective signatures hereby agree to its terms. By: r / /_ '; �?' J, �� b, — Printed: Erika A Rodriguez Title: Director CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Elizabeth A. Maradik, President Joseph R. Molnar, Vice President Gary A. Gilot, Member Breana Micou, Member Murray L. Miller, Member ATTEST: Theresa M. Heffner, Clerk Date: Februa�25, 20252025 EXHIBIT A DEDICATED IMPROVEMENTS LJJ _C3�>>� ° o a) � m �CL(n(n> V � C N > Q � � 2 0 p N -0 t IE (1) O �o co z cIct o Q zoo �v � �OR` i E M m � N N E � 1. �2 U W he �_ CQ G � �O J W z `C LU >Q Q z �za z W z Q � Z H W 03:o Q z Q � Lu m V _ W :*N0 lix (n LU W CL o CL CL N W J LL 0 W CL J Q W H H a W w J H H H W W 2 h DRAWN BY: DEF DESIGNED BY: RAD PM REVIEW: SDR QA/QC REVIEW: RTN DATE: 03/04/2024 SEAL: �►trTrrrr'lip �r�,� <5TE lox, g OP 4�se No. 6DO16991 , • s :*-- -0 t STATE OF OF r'��fly14SI n alp, `S; 'N ��►��� I I SIGNATURE: ✓�4_! DATE 0310512024 SCALE: HORZ: 1" = 10' VERT: 1" = 2' ACI JOB # 23-0647 SHEET NO. C3* I EXHIBIT B ENGINEER'S ESTIMATE :■ABONMARCHE Engineering • Architecture • Land Surveying Supermercado Western & Olive Street Right of Way Construction Estimate January 27,2025 Right of Way Work Description Quantity Unit Unit Price Cost 1 Concrete, Remove 428 SYD $10.00 $4,285 2 Brick, Remove and Salvage 45 SYD $15.00 $675 3 Relocate Planters with Trees 3 EA $500.00 $1,500 4 Concrete Curb 190 LFT $38.00 $7,220 5 Concrete Sidewalk, 4" 445 SYD $65.00 $28,925 6 Modify Existing Light Pole Foundation 3 EA $2,165.00 $6,495 7 Street Tree 12 EA $775.00 $9,300 8 Topsoil, 4" 15 CYD $141.00 $2,115 9 Sodding 140 SYD $20.00 $2,800 10 Fill material 30 CYD $100.00 $3,000 Total: 125% of total $66,315 25% $16,579 Bond Amount 125% of Total TOTAL: $83,000 Page 1 of 1 EXHIBIT C PERFORMANCE BOND ERIE INSURANCE COMPANY PERFORMANCE AND PAYMENT BOND Bond No.Q865670321 Thatwe, TX. Concrete,LLC............................................................................................................................ (hereinafter called the Principal) as Principal and the ERIE INSURANCE COMPANY, of Erie, Pennsylvania, a corporation duly organized under the laws of the State of Pennsylvania, (hereinafter called the Surety), as Surely, are held and firmly bound unto City.of.South.Bend. Department. of, Public,Works......... .......................................................................................................................................................................... (hereinafter called the Obligee), in the sum of................................................................................................... " 7-=.....:::-.::: Dollars, ($ 85000........... ), for payment of which, well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors and assigns. Signed, sealed and dated this .................... Sth.......... .......... day of. Februar.Y............. ................. , 20 25...... THE CONDITION OF THIS OBLIGATION IS SUCH: That whereas, the above named Principal did on the .......... 5th ., day of February ............ 2025........ enter into a contract with the Obligee for Western & Olive Street Right of Way. Construction .................I............................................................................................................. .......................................................................................................................................................................... which contract is made a part of this bond, the same as though fully set forth herein. NOW,THEREFORE, if the above bounden Principal shall well and truly keep, do and perform each and every, all and singular, the matters and things in said contract set forth and specified to be by said Principal kept, done and performed, at the times and in the manner in said contract specified and shall pay all lawful claims of subcontractors, materialmen, laborers, persons, firms, or corporations, for labor performed or materials furnished, in the performing or completing of said contract, we agreeing and assenting that this undertaking shall be for the benefit of the Obligee, any subcontractor, materialmen, laborer, person, firm or corporation having a just claim, subject to the Obligee's priority, then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the Surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated. Witness: ........ ..................... Witness: ........ ..................... ' TX Concrete LLC Principal By: .............. .............. ERIEI>SURANCEANY By:. ...... e.............. Attorney -in -Fact SF283 12183 Erie LIMITED POWER OF ATTORNEY Insurance° KNOW ALL MEN BY THESE PRESENTS: That ERIE INSURANCE COMPANY, a corporation duly organized under the laws of the Commonwealth of Pennsylvania, does hereby make, constitute and appoint — --- — ---- - ------------------------------------------ ------- Carl Salinas ------------------------------------------------ individually, its true and lawful Attorney -in -Fact, to make, execute, seal and deliver for and on its behalf, and as its act and deed: any and all bonds and undertakings of suretyship, --- ----------------------- ------------- —------ —---------- -- ----------- in a penalty not to exceed the sum of five hundred thousand dollars($500,000.00).----------------- —------ -- And to bind ERIE INSURANCE COMPANY thereby as fully and to the same extent as if such bonds and undertak- ings and other writings obligatory in the nature thereof were signed by the appropriate officer of ERIE INSURANCE COMPANY and sealed and attested by one other of such officers, and hereby ratifies and confirms all that its saidAttomey(s)- m-Fact may do in pursuance hereof. The Power of Attorney is granted under and by authority of the following Resolution adopted by the Board of Directors of ERIE INSURANCE COMPANY on the 11 th day of March, 2008, and said Resolution has not been amended or repealed: "RESOLVED, that the President, or any Senior Vice President or Vice President shall have power and authority to: (a) Appoint s Attomey(s)-in-Fact and to authorize them to execute on behalf of the Company, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof; and, (b) Remove any such Attorney -in -Fact at any time and revoke the power and authority given to him; and RESOLVED, that Attomey(s)-in-Fact shall have power and authority, subject to the terms and limitations of the Power of Attorney issued to them, to execute and deliver on behalf of the Company, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof. The corporate seal is not necessary for the validity of any bonds and undertak- ings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof" This Limited Power of Attorney is signed and sealed by facsimiles under and by virtue of the following Resolution adopted by the Board of Directors of ERIE INSURANCE COMPANY on the 18th day of September, 2008, at which a quorum was present and said Resolution has not been amended or repealed: "RESOLVED, that the signature of Terrence W. Cavanaugh, as President and Chief Executive Officer of the Company, and the Seal of the Company may be affixed by the following facsimiles on any Limited Power of Attorney for the execution of bonds, undertakings, recognizances, contracts and other writings in the nature thereof; and the signature of James J. Tanous, as Secretary of the Company, the Seal of the Company, the signature of Sheila M. Hirsch, as Notary Public, and her Notarial Seal, may also be affixed by the following facsimiles to any certificate or acknowledgment of any such Limited Power of Attorney, and only under such circumstances shall said facsimiles be valid and binding on the Company." IN WITNESS WHEREOF, ERIE INSURANCE COMPANY has caused these presents to be signed by its President and Chief Executive Officer, and its corporate seal to be hereto affixed this 3rd day of February, 2011. STATE OF PENNSYLVANIA l ss. COUNTY OF ERIE J On this 3rd day of February, 2011, before me personally came Terrence W. Cavanaugh, to me known, who being by me duly swom, did depose and say: that he is President and Chief Executive Officer of ERIE INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he knows the Seal of said corporation; that the Seal affixed to the said instrument is such corporate Seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order. CERTIFICATE I, James J. Tanous, Secretary ofERIE INSURANCE COMPANY, do hereby certify that the original LIMITED POWER OF AT- TORNEY, of which the foregoing is a full, true and correct copy, is still in full force and effect as of the date below. In witness whereof, I have hereunto subscribed my name and affixed corporate Seal ofthe Company by facsimiles pursuant to the action of the Board of Directors of the Company, 1972 .. Terrence W. Cavanaugh President and Chief Executive Officer My commission expires June 27, 2016 Notary Public 6.��/awd, JamesejTanous, Secretary this day of 20 . SF57 6/12 EXHIBIT D CERTIFICATE OF INSURANCE IErie Insurance° 100 Elie Ins. PI. • Erie, PA 16530 CERTIFICATE OF INSURANCE -THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY. CERTIFICATE HOLDER COPY NAME AND NUMBER OF AGENCY DATE ISSUED SALINAS INSURANCE AGENCY INC FF3134 04/14/2024 928 S MAYFLOWER RD STE B SOUTH BEND, IN 46619-3949 574-404-6767 NAME AND ADDRESS OF CERTIFICATE HOLDER NAME AND ADDRESS OF NAMED INSURED CITY OF SOUTH BEND - PUBLIC WORKS TX CONCRETE LLC DEPT 24899 FILLMORE RD 1316 COUNTY CITY BLDG SOUTH BEND IN 46619-1022 SOUTH BEND IN 46601- This Is to certify that policies, as indicated by Policy Number below, are in force for the Named Insured at the time that the certificate is being issued. TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE'DATE POLICY EXPIRATION DATE LIMITS OF INSURANCE GENERAL LIABILITY r0291821177 05/18/2024 05/18/2025 EACH OCCURRENCE $1000000 FIRE DAMAGE $1000000 -COMMERCIAL GENERAL LIABILITY OCCURRENCE FORM (Any one premises) GENL AGGREGATE LIMIT APPLIES PER: PROJECT MED EXP(Any one person) $5000 PERSONAL B ADV INJURY $1000000 GENERAL AGGREGATE $2000000 PRODUCTS-COMP/OP AGG $2000000 BODILY INJURY $ (EACH PERSON) BODILY INJURY $ (EACH ACCIDENT) PROPERTY DAMAGE $ BODILYINJURYAND S PROPERTY DAMAGE COMBINED EXCESS LIABILITY Q291870273 05/18/2024 05/18/2025 EACH OCCURRENCE 1000000 OCCURRENCE FORM AGGREGATE 2000000 STATUTORY - �> BODILY ACCIDENT INJURY DISEASE BY DISEASE Fn='H nac^-EnT S Paucr umrt S EACHEMPLaYEE DESCRIPTION OF OPERATIONS/LOCATIONSIVEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS �_ -- ---- - RECOVER' AAf i mu = r• LVLI city of south 8eno DIV of Enginleeftnq CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such THIS CERTIFICATE IS ISSUED FOR INFORMATION PURPOSES ONLY AND CONFERS NO RIGHTS ON THE CERTIFICATE HOLDER. IT DOES NOT AFFIRMATIVELY OR NEGATIVELY LIST, AMEND, EXTEND, OR OTHERWISE ALTER THE TERMS, EXCLUSIONS AND CONDITIONS OF INSURANCE COVERAGE CONTAINED IN THE POLICY(IES) INDICATED ABOVE. THE TERMS AND CONDITIONS OF THE POLICY(IES) GOVERN THE INSURANCE COVERAGE AS APPLIED TO ANY GIVEN SITUATION. LIMITS SHOWN MAY HAVE BEEN REDUCED BY CLAIMS PAID. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER AND CERTIFICATE HOLDER. OF-1568 09/12 CIF ERIE INSURANCE SEE REVERSE SIDE AUTHORIZED l / REPRESENTATIVE BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date: 2/7/2025 Name: Gemma Stanton Department of Public Works — Engineering Division BPW Date: 2/25/2025 Phone Extension: 9083 Required Prior to Submittal to Board BPW Attorney X Attorney Name Dept. Attorney ❑ Attorney Name 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: Dedicated ❑ Ease./Encroach improvements agreement 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 Panaderia y Supermercado San Miguel/TX Concrete U Yes U If Yes, Approved by Purchasing ❑ No ❑ WBE Completed E-Verify Form Attached ❑ Nos Panaderia y Supermercado San Miguel DP24-015 n/a n/a n/a Dedicated Improvements Agreement Agreement for owner to reconstruct City sidewalk and light pole foundations along Olive Street frontage of 2401 W Western Avenue development For Change Orders Only Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount Current Percent of Change: New Amount Increase % Decrease ( % Increase % Total Percent of Change: Decrease % Time Extension Amount: New Completion Date: