HomeMy WebLinkAboutMaintenance & Temporary Construction Easement Agreement - SB Riverwalk Partners, LLC - SignedCross Reference: 9010102 (Quitclaim Deed)
. (Limited Warranty Deed)
MAINTENANCE AND TEMPORARY CONSTRUCTION
EASEMENT AGREEMENT
THIS MAINTENANCE AND TEMPORARY CONSTRUCTION EASEMENT
AGREEMENT (this "Agreement") is entered into by and between SOUTH BEND
REDEVELOPMENT AUTHORITY, a separate body corporate and politic organized and existing
under the provisions of I.C. 36-7-14.5 as an instrumentality of the City of South Bend, Indiana
("Grantor"), and SOUTH BEND RIVERWALK PARTNERS, LLC, an Indiana limited liability
company ("Grantee"; together with Grantor, each a "Party" or, collectively, the "Parties"), to be
effective as of , 2025.
RECITALS
WHEREAS, Grantor is the fee simple owner of certain real estate located in St. Joseph
County, Indiana, more particularly described on Exhibit A attached hereto and by reference
incorporated herein (the "Grantor Property");
WHEREAS, Grantee is the fee simple owner of certain real estate located in St. Joseph
County, Indiana, more particularly described on Exhibit B attached hereto and by reference
incorporated herein (the "Grantee Property", together with Grantor Property, the "Properties");
WHEREAS, Grantee intends to develop a multifamily apartment community on the
Grantee Property (the "Grantee Project");
WHEREAS, Grantor desires to grant to Grantee certain maintenance and temporary
construction easements in, over, under, and through portions of the Grantor Property in accordance
with the terms set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and legal sufficiency of which are hereby acknowledged, Grantor and
Grantee agree as follows:
1. Recitals. The foregoing recitals are hereby affirmed by Grantor and Grantee
as true and correct, and each such recital is incorporated herein by this reference.
2. Grant of Easements.
a. Maintenance Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, and its employees, agents and contractors, successors and assigns a
permanent, non-exclusive easement (the "Maintenance Easement") over,
under, across and through the portion of Grantor's Property being more
particularly depicted and described on Exhibit C (the "Maintenance Easement
Area") for the purposes of accessing, maintaining, repairing, and/or replacing
the Grantee Project, including the maintaining the encroachment of any
building footers, or any part thereof and any work related thereto, and may
include, without limitation window washing, painting, caulking, and
maintaining a retaining wall.
b. Temporm Construction Easement. Grantor hereby grants, bargains, sells and
conveys to Grantee and Grantee's agents, contractors, and subcontractors, a
temporary construction easement (the "Construction Easement", together
with the Maintenance Easement, the "Easements") over, upon, under and
through the portion of Grantor's Property being more particularly depicted and
described on Exhibit D (the "Construction Easement Area"; together with the
Maintenance Easement Area, the "Easement Areas") for the purpose of
accessing and constructing the Grantee Project including constructing the
building footers. This temporary construction easement shall remain in effect
until the earlier of (a) the date of Substantial Completion by Grantee of
Grantee's Project, or (b) the date that is five (5) years after the effective date of
this Agreement. As used herein, "Substantial Completion," "Substantially
Completed," and any derivations thereof mean such work is completed in
substantial accordance with Grantee's development plans and all laws, and the
City of South Bend, Indiana has issued a certificate of occupancy to Grantee for
the Grantee Project.
3. Construction of Grantee Project.
a. Construction Activities. Grantor acknowledges and agrees Grantee shall be
entitled to interrupt access to portions of Grantor's Property during the
construction of the Grantee Project. However, to the extent it is necessary that the
sidewalk segment of the Grantor's property becomes obstructed during a portion
of the construction or maintenance work, such obstruction shall only exist for as
long as reasonably required to complete the portion of the construction or
maintenance work requiring the obstruction. Grantee shall Substantially Complete
or cause the Substantial Completion of the construction of the Grantee Project
within four (4) years following the commencement of construction of the Grantee
Project, subject only to Force Majeure (defined below).
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b. Mechanics Liens. Grantee shall not cause or permit any lien to attach to the
Grantor Property or to any improvements now existing or to be constructed or
installed thereon by reason of the performance of any labor or work or the
provision of any services, machinery, tools, equipment, supplies or materials
tinder or pursuant to this Agreement, or any supplement or ancillary agreement or
field directive relating to the construction of the Grantee Project. if such a lien
shall be filed, Grantee shall take all steps necessary for the release and discharge
of such lien in the manner required under applicable law within sixty (60) days of
Grantee's receipt of written notice thereof from Grantor and provided that nothing
herein shall prevent Grantee from contesting any such lien in good faith. If any
aforementioned lien shall remain in force or uncontested for sixty (60) days after
Grantee's receipt of written notice thereof from Grantor, Grantor shall have the
right and privilege of paying and discharging the same or any portion thereof
without inquiry as to the validity thereof. Grantee shall hold the affected Property
owner harmless from and indemnify same against all costs, liabilities, losses, and
expenses related to such lien.
4. l)se of the ) ascinent Areas. Subject to the terms herein, each Party agrees that its
use (and the use by such Party's employees, agents, tenants or invitees) of the Easement Areas
shall not unreasonably interfere with the use and enjoyment of the other Party's Property. Grantor
shall not at any time erect, construct, or cause to be erected or constructed, any fence, wall, curb
or other barrier in the Easement Areas or in any manner interfere with or restrict the full and
complete use and enjoyment by Grantee of the Easement granted herein. Grantee may, as
reasonably required on a temporary basis during periods of construction, maintenance, repair or
replacement of the Grantee Project, erect, construct, or cause to be erected or constructed, a fence
or other barrier in the Easement Areas; however, such fence or other barrier may not extend over
the area of the Grantor Property that contains the sidewalk without a minimum of forty-eight (48)
hours' prior written notice to the Grantor, and without regular updates to Grantor regarding when
the fencing or other barrier will be removed. In the event Grantee erects a fence or other barrier
that causes the entirety of the sidewalk to be blocked from use, Grantee, in coordination with
Grantor, shall erect appropriate signage indicating that the sidewalk is temporarily closed, as well
as any other warning signage as reasonably appropriate. At all times during the construction or
maintenance of the Grantee Project, Grantee agrees to conduct the construction or
maintenance in a manner consistent with keeping the Grantor Property in good order and
condition and free of debris. During times of construction, signage and barriers must be
checked by Grantee regularly to ensure adequate safety zones and public paths are
maintained.
5. Restoration by Grantee. Upon completion of any construction or maintenance
activities, the Grantee agrees that at its sole expense, it shall restore the Grantor's Property to,
as nearly as practical, its condition as it existed immediately prior to Grantee's use. Grantee
will notify the Grantor promptly upon completion of restoration, so as to provide Grantor with
sufficient time to inspect and provide written notice of its acceptance of the restoration for
each portion of the Grantor Property used; provided, however, if Grantor has not provided
Grantee with written notice of acceptance of the restoration within fifteen (15) days of
Grantee's notifying Grantor, then the restoration shall be deemed accepted.
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6. Damage to Proiect Site or Proiect. If any Work conducted by or on behalf of the
Grantee causes damage to any portion of the Grantor Property, after notice from Grantor
identifying such damages and demanding that such damage be repaired, Grantee shall, within a
reasonable timeframe as agreed to by the Parties, repair such damage at its expense. If the Grantee
fails to repair such damage within the agreed timeframe, then Grantor may, but shall not be
obligated to, complete the necessary repairs, in which case the Grantee shall reimburse Grantor all
costs incurred by Grantor to complete the repairs upon thirty (30) days written demand
accompanied by reasonable evidence of such costs.
7. Indemnity. The Grantee shall indemnify, defend, and hold the Grantor, its agents,
directors, employees, managers, members, officers, and partners and their respective assigns and
successors harmless from and against any and all claims, penalties, fines, losses, costs, damages,
liabilities or expenses (including reasonable attorneys' fees actually incurred and court costs)
(collectively, the "Claims") for any and all injuries to persons or damages to property incurred by
Grantor in connection with the Easements and rights created herein, except to the extent caused by
the negligence or willful acts or omissions of the Grantor or its employees, tenants, contractors,
agents or licensees.
8. Duration of Easements. Binding on Successors and Assi ns. The nonexclusive
Maintenance Easement created herein is hereby declared to be perpetual, and is appurtenant to and
shall run with the benefitted and burdened Property, and shall be binding on, and inure to the
benefit of, the then owners of the benefited and burdened Property, and any portions thereof, and
their respective legal representatives, successors and assigns and on all parties having or acquiring
any right, title, interest, or estate in any Property. The nonexclusive Temporary Construction
Easement shall terminate in the timeframe as set forth in Section 2.b. herein, and for as long as it
remains in effect, shall be appurtenant to and shall run with the bcnefitted and burdened Property,
and shall be binding on, and inure to the benefit of, the then owners of the benefited and burdened
Property, and any portions thereof, and their respective legal representatives, successors and
assigns and on all parties having or acquiring any right, title, interest, or estate in any Property. .
9. Amendment to this Agreement. This Agreement may be modified, amended, or
terminated, in whole or in part, only by the written consent of the then owners of record of the
Properties. Any modification, amendment, or termination of this Agreement shall become
effective only upon recording the same in the Office of the Recorder of St. Joseph County, Indiana.
10, No Dedication for Public Use. This Agreement is not intended to, and does not,
constitute a dedication for public use of all or any portion of the Easement Areas, and the rights
granted herein are private.
11. Remedies, Cure Ri hts• Waivers. In the event either Party is in breach or default
of its obligations hereunder, the non -defaulting Party may enforce this Agreement against the other
Party by seeking injunctive relief, specific performance, or any other remedy available at law or
in equity, but in all events excluding any special, indirect, consequential, or punitive damages. In
any action arising out of this Agreement, the prevailing Party in such action shall be entitled, in
addition to all other relief granted, to its reasonable costs and expenses, including, without
limitation, reasonable attorneys' fees and costs set by the court. Neither Party shall be considered
in breach or default of its obligations under this Agreement until the non -defaulting Party has given
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the defaulting Party written notice of such alleged default or non-performance and the defaulting
Party has failed to cure the same within thirty (30) days after the receipt of such notice, provided
that if the breach or non-performance is of the type that would reasonably take more than thirty
(30) days to cure, such defaulting Party shall not be considered in breach or default of this
Agreement if it commences cure within said thirty (30) day period and diligently and in good faith
completes such cure within a reasonable time thereafter. Any such cure by a defaulting Party shall
not relieve it of responsibility for payment of any loss or expense incurred by the non -defaulting
Party. No waiver by either Party of any default under this Agreement shall be effective or binding
upon such Party unless made in writing. No waiver of any default shall be deemed a waiver of
any other or subsequent default hereunder.
12. Unenforceable Provisions. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the term of this Agreement,
then the legality, validity and enforceability of the remaining provisions of this Agreement shall
not be affected thereby, and in lieu of each such illegal, invalid or unenforceable provision, there
shall be added automatically as a part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and which shall be legal, valid and
enforceable.
13. Counterparts. This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an original and all of
which shall constitute one and the same instrument.
14. Lien Suliordi.nation. Any mortgage, deed of trust, ground lease, or other lease now
existing or hereafter granted or entered into affecting the Grantor Property or Grantee Property
shall be subject to, subordinate and inferior to the easement, rights, benefits, and obligations
created hereby, and the foreclosure under any such mortgage shall not extinguish or impair the
easement, rights, benefits, and obligations created by this Agreement.
15. Notice. All notices, demands, or other communications of any type given pursuant
to this Agreement shall be in writing and shall be delivered to the person to whom the notice is
directed, either: (i) in person with a receipt requested therefor; or (ii) sent by a recognized overnight
service for next day delivery or by United States certified mail, return receipt requested, postage
prepaid to the addresses; or (iii) by electronic mail with as follows:
To Grantor: South Bend Redevelopment Authority
1400S County City Building
South Bend, Indiana 46601
Attention: Executive Director of Community Investment
Email: cbauer(c�southbendin.gov
With a copy to: City of South Bend
227 W. Jefferson Boulevard, Suite 1200S
South Bend, Indiana 46601
Attention: Legal Department
Email: legaldept(;southbendin.gov
To Grantee: South Bend Riverwalk Partners, LLC
c/o J.C. Hart Company, Inc.
805 City Center Drive, Suite 120
Carmel, Indiana 46032
Attention: John C. Hart, Jr.
Email: john@homeisjchart.com
With a copy to: Dinsmore & Shohl LLP
211 North Pennsylvania Street
One Indiana Square, Suite 1800
Indianapolis, Indiana 46204
Attention: E. Joseph Kremp
Email: Joe.Kremp@dismore.com.
Either Party may change its address for notice hereunder by notice to the other Party given as set
forth herein.
16. Extent of Liability. Notwithstanding any other provision contained in this
Agreement to the contrary, the Parties hereby expressly agree that the obligations and liability of
each of them shall be limited solely to such Party's interest in its respective tract, as such interest
is constituted from time to time. The Parties agree that any claim against a Party hereto shall be
confined to and satisfied only out of, and only to the extent of, such Party's interest in its tract, as
such interest is constituted from time to time. Nothing contained in this paragraph shall limit or
affect any right that a Party might otherwise have to seek or to obtain injunctive relief or to
specifically enforce the rights and agreements herein set forth, provided that such injunctive relief'
or specific performance does not involve the payment of money from a source other than such
Party's interest in its tract, as such interest may be constituted from time to time.
17. Insurance. Grantee hereby agrees to maintain comprehensive commercial general
liability insurance in commercially reasonable amounts, insuring against any and all claims for
bodily injury, death and/or property damage occurring on, in or about the Grantee Property as a
result of the exercise of the rights granted and reserved in this Agreement. The Parties
acknowledge and agree that Grantor is self -insured for general liability risk; additionally,
notwithstanding anything in this Agreement, Grantor does not waive any governmental immunity
or liability limitations available to it under Indiana law.
18. A livable Law. The term and provisions of this Agreement shall be governed by
and construed under the laws of the State of Indiana without regard to conflicts of law principles.
19. No Im lied Waiver. Except as herein expressly provided, no waiver by a party of
any breach of this Agreement shall be deemed to be a waiver of any other breach by the other party
and no acceptance of payment or performance by a party after any breach by the other party shall
be deemed to be wavier of any breach of this Agreement by such other party, whether or not the
first party knows of such breach at the time and accepts such payment or performance. No failure
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or delay by a party to exercise any right it may have by reason of the default of the other party
shall operate as a waiver of default or modification of this Agreement or shall prevent the exercise
of right by the first party while the other party continues to be in default.
20. Force Maieure. Notwithstanding anything to the contrary set forth in this
Agreement, in the event either party hereto shall be delayed or hindered in or prevented from the
performance of any act required under this Agreement by reason of strikes, lockouts, labor
troubles, inability to procure materials, failure of power, restrictive governmental regulations or
law, riots, insurrection, war, unusually inclement weather, terrorists acts, a global or national health
emergency, pandemic, or epidemic (including the impact and effects of any related lock -down,
quarantine, or stay-at-home orders), or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of this Agreement (collectively,
"Force Ma,jeure"), then performance of such act shall be excused for the period of the delay, and
the period of the performance of any such act shall be extended for a period equivalent to the
period of such delay.
21. Estoppel. Each of Grantor and Grantee (as applicable, a "Responding Owner")
hereby covenants that within fifteen (15) days after receipt of notice requesting an estoppel
certificate from the other party (but not more than twice in any calendar year), the Responding
Owner will issue to the requesting party or to any prospective mortgagee, purchaser or tenant of
such party, an estoppel certificate stating, to the Responding Owner's actual knowledge: (a)
whether any default exists under this Agreement (and if there is any such default, then stating the
nature thereof); (b) whether this Agreement has been assigned, modified or amended in any way
(and if it has, then stating the nature thereof); (c) whether this Agreement is in full force and effect
as of the date of the estoppel certificate; and (d) such other matters as the requesting party may
reasonably request. Failure by a Responding Owner to so execute and provide such estoppel
certificate within the specified period of time shall be deemed an admission on the Responding
Owner's part that the requesting party is current and not in default in the performance of its
obligations under this Agreement. Any such estoppel certificate may be relied upon by transferees,
tenants, lenders and any other similar parties of Grantor or Grantee.
22. Headings, Captions, Interi1retation and Survival. The section and subsection
headings, captions and numbering system contained herein are inserted for purposes of
convenience and identification only and shall not be considered in construing or interpreting this
Agreement. Words of any gender used herein shall be held and construed to include any other
gender; words of a singular number shall be held to include the plural and vice versa, unless the
context requires otherwise; and any reference to "including" shall mean "including, but not limited
to" unless expressly stated otherwise. Words importing person shall include firms, associations,
partnerships, limited liability companies and corporations, including public bodies and entities, as
well as natural persons. In addition to any provisions expressly stated to survive termination of
this Agreement, all provisions which by their terms provide for or contemplate obligations or
duties of a party which are to extend beyond such termination (and the corresponding rights of the
other party to enforce or receive the benefit thereof) shall survive such termination.
23. Time. If a final date of any period, deadline, due date, or date of performance falls
on a Saturday, Sunday, or federal holiday, the date shall be extended to the immediately following
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date that is not a Saturday, Sunday, or federal holiday. Time is of the essence of this Agreement
and each and every provision hereof.
24. Entire Agreement. This Agreement contains the entire agreement with respect to
the transactions contemplated herein, and there are no other terms, conditions, promises,
understandings, statements or representations, express or implied, concerning the same.
[SIGNATURE PAGES AND ACKNOWLEDGMENTS FOLLOW]
IN WITNESS WHEREOF, this Agreement is executed to be effective as of the day and
year first above written.
GRANTOR:
SOUTH BEND REDEVELOPMENT
AUTHORITY
By:_
Printed: ?
Title: :,
ATTEST:
By: _-I?- 2a-TX
Printed:
Title:
STATE OF INDIANA )
) SS:
COUNTY OF 'S� • JOSf D )
Before me, a Notary Public in and for said County and State, personally appeared
An4kcr►y F E 5 and R,,c K gI,e-e , the 41,,w/ rr,-+a 3 and
.-0 , respectively, of South Bend Redevelopment Authority who, after
having been duly sworn, acknowledged the execution of the foregoing Agreement.
WITNESS, my hand and Notarial Seal this [ 0 44-day of IMa)rG%1 _, 2025.
My Commission Expires:
Ma fC6i d `l
LAURA D. HENSLEY
Notary Public - Seal
St Joseph County - State of Indiana
Commission Number NP0732150
My Commission Expires Mar 3, 2029
S - I
f .
Nota ublic
of Residence:
T �seo14 _ -2-11d `-I ha
GRANTEE:
SOUTH BEND RIVERWALK PARTNERS, LLC,
an Indiana limited liability company
By: J.C. Hart Manager, LLC,
an Indiana limited liability company,
its Manager
By: �%1`
Charles H. Kurtz,
Authorized Represen ative
STATE OF INDIANA )
) SS:
COUNTY OF-Ik Pl'i1-64A )
Before me, a Notary Public in and for said County and State, personally appeared Charles
H. Kurtz, a Authorized Representative of J.C. Hart Manager, LLC, an Indiana limited liability
company, the Manager of South Bend Riverwalk Partners, LLC, who, after having been duly
sworn, acknowledged the execution of the foregoing for and on behalf of such limited liability
company.
WITNESS my hand and Notarial Seal this �74h day of Mou-61 , 2025.
� r p +•. CwurA J SMITH �J
My Commission Expires
• SEAL*. --*May 16, 2032
Commission Number NP0685360 { )Notary Public
'' cF ie�+�"•' HamHton Ceunty
My Commission Expires: My County of Residence:
This instrument prepared by: Timothy D. Schuster, Attorney at Law, Dinsmore & Shohl LLP, One
Indiana Square, Suite 1800, Indianapolis, Indiana 46204.
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 [Timothy D. Schuster]
S-2
EXHIBIT A
GCamor's Yroi)erty
Commencing at the Northeast comer of Monroe Street and Uncolnway East, also being the Southeast
comer of Tract 8 in the RIVER BEND ADDITION and situated in the West Half of the Southeast Quarter of
Section 12, Township 37 North, Range 2 East; thence 399.68 feet along the East line of said tract to the
Point of Beginning; thence South 52007'42" West, 190.00 feet; thence North 46002'06" West, 180.00
feet; thence North 65047'18" West, 460 feet; thence North 38042'21" West, 236.98 feet; thence North
70°06'30" West, 50.00 feet; thence North 04039'38" West, 40.00 feet; thence North 65042'29" East,
10.00 feet; thence North 250 39'11" West, 425.12 feet; thence North 2504629" West, 232.03 feet;
thence North 5301013" West, 108.76 feet; thence North 25055'32" West, 90.64 feet; thence North
19047'16" West, 156.66 feet; thence North 87040'09" East, 94.06 feet; thence South 28059'50" East,
145.12 feet; thence South 230W10" East, 140.73 feet; thence South 26026'27" East, 149.84 feet; thence
South 20004'37" East, 152.26 feet; thence South 220S3'19" East, 167.55 feet; thence South 34056'19"
East, 224.42 feet; thence South 31026'14" East, 157.37 feet; thence South 4504342" East, 161.61 feet;
thence South 6404726" East, 159.34 feet; thence South 68004'55" East, 228.93 feet; thence South
76010'38" East, 234.62 feet back to the Point of Beginning.
A-1
EXHIBIT B
Grantee's Proyegy
Lot 2 in Crowe Chizek Second Minor Subdivision Lot Line Adjustment, as per plat thereof,
recorded as Instrument Number in the Office of the Recorder of St. Joseph
County, Indiana.
B-1
EXHIBIT C
Maintenance Easement Area
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EXHIBIT D
Construction Easement .Area
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