Loading...
HomeMy WebLinkAbout5A6 Non-Exclusive Utility Easement Agreement (ChoiceLight, Inc., Sample St.) - Fully ExecutedSouth Bend Redevelopment Commission 215 S. Dr. Martin Luther King, Jr. Blvd., Room 301, South Bend, Indiana Redevelopment Commission Agenda Item DATE : 7/2/26 FROM: Erin Michaels – Property Development Manager SUBJECT: Non-Exclusive Utility Easement Agreement for ChoiceLight Inc. Sample Street Fiber Ductbank Funding Source* (circle) River West; River East; South Side; Douglas Road; West Washington; RDC General; Riv. East Res. * Funds are subject to the City Controller's determination of availability; if funds are unavailable, as solely determined by the City Controller, then the authorization of the expenditure of such funds shall be void and of no effect. PURPOSE OF REQUEST: Approval of Proposed Non-Exclusive Utility Easement Agreement for Fiber Ductbank on Sample Street with ChoiceLight, Inc. SPECIFICS: ChoiceLight, Inc. operates a professional fiber optic network serving St. Joseph, Elkhart and Marshall County whose mission is to champion digital equity by building and expanding that fiber network infrastructure to as many institutions as possible to ensure that businesses and other organizations have access to reliable, high-speed internet. The Redevelopment Commission (“RDC”) owns four vacant parcels on Sample Street in Ignition Park. ChoiceLight, Inc. is requesting a non-exclusive 5’ easement over these four parcels for the installation of a new fiber optic cable ductbank along Sample Street (the “Utility Easement”). The proposed easement commits ChoiceLight to maintaining any facilities installed in the easement area as well as repairing or restoring any portion of the easement area or right-of-way along Sample Street damaged during installation, including replacement of any trees that would be removed during this work. Finally, if redevelopment opportunities on these vacant lots require the relocation of the fiber optic ductbank the RDC may require ChoiceLight, Inc. to relocate this equipment with written notice. The proposed Utility Easement will assist in ChoiceLight, Inc.’s mission to bring digital equity to organizations and businesses in St. Joseph County and provide valuable infrastructure to Ignition Park. Staff recommends approval. ______________ ___________Pres/V-Pres ATTEST: __________ _______ _ Date: _____________ _______ APPROVED Not Approved SOUTH BEND REDEVELOPMENT COMMISSION July 9, 2026  1 NON-EXCLUSIVE UTILITY EASEMENT AGREEMENT THIS NON-EXCLUSIVE UTILITY EASEMENT AGREEMENT (this “Agreement”) is made and entered into effective as of the 9th day of July, 2026, between the City of South Bend, Indiana, an Indiana municipal corporation, acting by and through its Redevelopment Commission (the “Grantor”), and the ChoiceLight, Inc., an Indiana nonprofit corporation (the “Grantee”) (each a “Party” and together the “Parties”), upon the following terms and conditions: RECITALS A. Grantor owns real property in South Bend, Indiana known as Lot 1 of Sample and Lafayette Minor Subdivision and Lots 4, 5, and 6 of the Ignition Park Major Subdivision, more particularly described in attached Exhibit A (the “Property”). B. Grantee desires to install, operate, and maintain a fiber optic cable across certain portions of the Property, as collectively described in attached Exhibit B and collectively depicted on Exhibit C (the “Easement Area”). In the event of any conflict between Exhibit B and Exhibit C, Exhibit B shall control. C. Grantor is willing to grant a limited, non-exclusive easement subject to the terms and restrictions set forth herein. D. All present and future owners and occupants of the Property shall be and hereby are subject to this Agreement, on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration, including the public benefits associated with the installation of telecommunications infrastructure, the Parties hereby covenant and agree that the Property and all present and future owners and occupants of the Property, during the term of the Agreement, shall be and hereby are subject to the easement hereinafter set forth in this Agreement, so that the Property shall be maintained, kept, sold and used in full compliance with and subject to the Agreement and, in connection therewith, the Parties hereto on behalf of themselves and their respective successors and assigns covenant and agree as follows: 2 1. Grant of Utility Easement. The Grantor hereby grants to the Grantee, its successors and assigns, a non-exclusive easement and right-of-way for underground fiber optic telecommunications facilities and related appurtenances, being in, on, over, under, through and across the Easement Area as described in Exhibit B and depicted for reference in Exhibit C. The easement includes the right, now and in the future, to construct, reconstruct, operate, maintain, alter, improve, extend, inspect, patrol, protect, repair, remove, replace, upgrade and relocate within the Easement Area all necessary and convenient facilities relating to the Grantee’s installed fiber optic cable, which include, but are not limited to: conductors, conduit, enclosures, grounding systems, foundations, manholes, riser poles and all other appurtenant equipment and fixtures, and to lay conductors, wires and cables; together with the reasonable right to modify said facilities from time to time, provided that no other utilities or additional facilities may be installed, or any third-party use permitted, without prior written consent of the Grantor. Notwithstanding the foregoing, Grantor hereby consents to the installation, ownership, operation, and maintenance within the Easement Area of the conduit, handholes, and fiber optic facilities owned by Elkhart County and depicted on plans approved in writing by Grantor. Such consent is limited solely to Elkhart County and such approved facilities and shall not authorize any additional third-party use, occupancy, conduit sharing, or installation of additional facilities without the prior written consent of Grantor. Grantee shall not assign, sublicense, or otherwise transfer its rights under this easement, in whole or in part, without the prior written consent of Grantor. Notwithstanding Elkhart County's use of facilities within the Easement Area, Grantee shall remain solely responsible to Grantor for compliance with all obligations under this Agreement. Grantee shall at all times comply with all applicable laws, permits, and City standards in its use and shall perform all work in a good and workmanlike manner. Grantee shall exercise its rights under this section subject to coordination with existing utilities and applicable local approval requirements. 2. Existing Easements; Non-Interference. This easement is subject to all existing easements, rights-of-way, and encumbrances of record. Grantee shall not unreasonably interfere with other easement holders, whether public or private, and shall reasonably accommodate coexisting utilities within the Easement Area. Upon request, Grantee shall coordinate with such utility providers to avoid conflicts and minimize disruption. Nothing herein grants Grantee priority over existing easements of record or obligates Grantor to resolve conflicts. 3. Maintenance; Restoration. The Grantor may maintain and repair in good order and condition the Easement Area, as determined in its sole discretion. The foregoing shall include, but not be limited to: (a) removal of snow from the Easement Area in accordance with the Grantor’s schedule therefor and (b) paving, repaving and resurfacing the drive areas of the Easement Area, as and when needed in the sole discretion of the Grantor. In the event the Grantee damages any part of the Easement Area or the public right-of-way along Sample Street, Grantee shall promptly restore such areas to substantially the same condition that existed immediately prior to such damage and to City standards. Grantee shall minimize removal of trees to the extent 3 reasonably practicable, and any trees removed in connection with Grantee’s activities shall be replaced, at Grantee’s sole cost and expense, with trees of similar type and size, and in accordance with City standards. Such restoration shall be completed within a reasonable time following written notice from Grantor. If Grantee fails to timely restore the affected area, Grantor may perform such restoration, and Grantee shall reimburse Grantor for all reasonable costs incurred. For purposes of this provision, normal wear and tear shall not be considered “damage” to the Easement Area. 4. Relocation. While the Easement Area is owned by Grantor, to accommodate public projects, redevelopment, utilities, or other governmental purposes, Grantor may require Grantee to relocate or remove its facilities. Upon such request, and at Grantee’s sole cost and expense, Grantee shall relocate or remove its facilities relating to the Grantee’s installed fiber optic cable upon at least thirty (30) days’ prior written notice from Grantor, or within such other time period as may be mutually agreed by Grantor and Grantee (or sooner as reasonably required to protect public health, safety, or infrastructure). Failure of Grantee to timely comply shall constitute a material breach of this Agreement. The rights granted to Grantor under this Section are personal to Grantor and shall not run with the land or be assignable to any successor owner of the Easement Area. 5. Ownership. The Grantor represents and warrants that it is lawfully seized of the Easement Area, that it has full right and power to grant the easement contained herein, and that the Easement Area is free from all encumbrances, except any matters of record, including existing easements. This Agreement grants only a limited use right, not a lease or ownership interest. 6. Hazardous Materials. The Grantee shall not cause or knowingly permit any hazardous material to be brought or remain upon, kept, used, discharged, leaked, or emitted upon the Easement Area. 7. Indemnification. Each Party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other Party, its departments, boards, officers, members, agents, directors, managers, employees, successors, and assigns (collectively, the “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, and expenses (including reasonable attorneys' fees) to the extent arising out of or resulting from the negligence, recklessness, or willful misconduct of the Indemnifying Party, its officers, employees, agents, contractors, or representatives in connection with this Agreement or activities within the Easement Area. Nothing herein shall be construed as a waiver of any governmental immunity or limitation of liability available to Grantor under Indiana law. 8. Reservation of Rights. Grantor reserves for itself the free use of the Property and Easement Area, in any manner not inconsistent with the terms of this Agreement. The Grantor reserves the right to grant additional easements to other entities. 4 9. Covenant Running with the Land. Except as otherwise expressly provided herein, t Grantor and Grantee intend that the rights and obligations set forth herein shall run with the land and create equitable servitudes burdening the Property and benefitting the Property, shall bind every person having any fee, leasehold, or other interest therein, and shall inure to the burden or benefit of the respective Parties and their successors, assigns, heirs, and personal representatives. 10. Term. This Agreement shall continue in effect indefinitely unless terminated by both Parties or their successors or assigns in writing. Provided, however, that Grantor may terminate this Agreement upon thirty (30) days’ written notice if (i) the easement is no longer actively used for its intended purpose for a continuous period of twelve (12) months, (ii) Grantee fails to comply with a material term of this Agreement and does not cure within a reasonable period, or (iii) the Easement Area is required for a public purpose requiring removal of the facilities. 11. Insurance. Grantee shall maintain, at its sole cost and expense, commercially reasonable insurance coverage, including general liability insurance, naming Grantor as an additional insured, in amounts reasonably acceptable to Grantor and shall provide certificates of insurance upon request. 12. Recording. This Agreement shall be duly recorded in the Office of the Recorder of St. Joseph County, Indiana, and all recording fees will be paid by the Grantee. Grantee shall provide Grantor with a recorded copy promptly following recordation. 13. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Indiana without reference to its conflict of laws principles. 14. Cooperation. Each Party shall, at no additional cost to the other Party, cooperate with the other and its authorized representatives with regard to any reasonable requests made subsequent to execution of this Agreement to correct any clerical errors contained in this Agreement and to provide any and all additional documentation deemed necessary to effectuate the transaction contemplated by this Agreement. Each Party further agrees that the term “cooperate,” as used in this Agreement, includes agreeing to execute or re-execute any documents that the Parties reasonably deem necessary or desirable to carry out the intent of this Agreement. All Parties recognize the duty of each Party to act in good faith and with fair dealings when effectuating the intent of this Agreement. 15. No Waiver. No failure or delay on the part of either Party in exercising any right under this Agreement will operate as a waiver of, or impair, any such right. No single or partial exercise of any such right will preclude any other or further exercise thereof or the exercise of any other right. No waiver of any such right will have effect unless given in a written document signed by the Party waiving such right. No waiver of any right will be deemed a waiver of any other right hereunder. 5 16. Severability. In the event any portion of this Agreement shall be held illegal, void, or ineffective, the remaining portions hereof shall remain in full force and effect. If any of the terms or conditions of this Agreement are in conflict with any applicable statute or rule of law, then such terms and conditions shall be deemed inoperative to the extent that they may conflict therewith and shall be deemed to be modified to conform to such law. 17. Entire Agreement; Amendment. This Agreement sets forth the entire agreement and understanding between the Parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them. This Agreement may be amended only by separate writing, signed by authorized representatives of both the Grantor and Grantee. (signature pages follow) A-1 EXHIBIT A Description of Property The Property subject to this Agreement is described as follows: Parcel No. 018-8002-0061 Tax ID: 71-08-14-227-001.000-026 Legal Description: Lot 1 Sample & Lafayette Minor Sub 21/22 NP #1072 6/22/2020 Commonly Known As: Lot 1 Sample and Lafayette Minor Subdivision Parcel No. 018-8021-084904 Tax ID: 71-08-14-226-002.000-026 Legal Description: Lot 4 Ignitions Park Major Sub Sec 2 15/16 NP#4562 07-01-2014 Commonly Known As: Lot 4 Ignition Park Major Subdivision Parcel No. 018-8021-0849 Tax ID: 71-08-14-276-002.000-026 Legal Description: Lot 5 Ignitions Park Major Sub Sec 2 15/16 NP#4562 07-01-2014 Commonly Known As: Lot 5 Ignition Park Major Subdivision Parcel No. 018-8021-084906 Tax ID: 71-08-14-226-001.000-026 Legal Description: Lot 6 Ignitions Park Major Sub Sec 2 15/16 NP#4562 07-01-2014 Commonly Known As: Lot 6 Ignition Park Major Subdivision B-1 EXHIBIT B Descriptions of Easement Area The Easement Area consists of the following described portions of the Property: AN EASEMENT BEING THE NORTH 5 FEET OF LOT 1 IN SAMPLE AND LAFAYETTE MINOR SUBDIVISION AS RECORDED AS INSTRUMENT NUMBER 2020-16978 IN THE RECORDER’S OFFICE OF ST. JOSEPH COUNTY, INDIANA AN EASEMENT BEING THE NORTH 5 FEET OF LOT 4 IN IGNITION PARK MAJOR SUBDIVISION, SECTION TWO, AS RECORDED AS INSTRUMENT NUMBER 1423192 IN THE RECORDER’S OFFICE OF ST. JOSEPH COUNTY, INDIANA AN EASEMENT BEING THE NORTH 5 FEET OF LOT 5 IN IGNITION PARK MAJOR SUBDIVISION, SECTION TWO, AS RECORDED AS INSTRUMENT NUMBER 1423192 IN THE RECORDER’S OFFICE OF ST. JOSEPH COUNTY, INDIANA AN EASEMENT BEING THE NORTH 5 FEET OF LOT 6 IN IGNITION PARK MAJOR SUBDIVISION, SECTION TWO, AS RECORDED AS INSTRUMENT NUMBER 1423192 IN THE RECORDER’S OFFICE OF ST. JOSEPH COUNTY, INDIANA C-1 EXHIBIT C Depictions of Easement Area The Easement Area described in Exhibit B is depicted for reference on the following drawings. C-2 C-3 C-4