HomeMy WebLinkAbout6A(1) SpUT$g
Department of
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Community Investment
1165
Memorandum
Thursday, December 18, 2014
TO: Redevelopment Commission
FROM: Jitin Kain
SUBJECT: Hill &Colfax Lot Access Agreement
Attached to this memorandum is an access agreement between the Commission and Colfax Hill
Partners, LLC.The Hill and Colfax property is currently owned by the Commission but is scheduled to
be transferred to Colfax Hill Partners, LLC in early January 2015.
The agreement provide access to the Commission and its agents to complete site improvement work
that the Commission agreed to undertake on the property as a condition of the Purchase Agreement.
The site work is being done in phases with the first phase completed in November of 2014.The
second phase which includes asphalt work in the parking lot cannot be done until much of the
building construction work is completed.
Staff requests Commission approval of the attached access agreement with Colfax Hill Partners, LLC.
227 W.JEFFERSON BLVD. SOUTH BEND, IN 46601 P: 574-235-9371 I FAX: 574-235-9021 1 SOUTHBENDIN.GOV
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ACCESS AGREEMENT FOR ENTRY UPON AND TEMPORARY USE OF
PROPERTY FOR COMPLETION OF LOCAL PUBLIC IMPROVEMENTS
This Access Agreement (this "Agreement") is made on December 2014, by and
among the South Bend Redevelopment Commission, governing body of the South Bend
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Department of Redevelopment ("Commission"), Walsh & Kelly, Inc., an Indiana corporation
("Contractor") and Colfax Hill Partners, LLC, an Indiana limited liability company
("Developer") (each sometimes being referred to herein as a "Party" or collectively as the
"Parties").
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A. The Commission and Developer are parties to a certain Contract for Sale of Land
for Private Development dated December 12, 2013, as amended by the Amendment to Contract
for Sale of Land for Private Development dated July 14, 2014 (the "Purchase Agreement"), for
'1 the purchase and sale of certain property generally located at the Northwest corner of the
intersection of Colfax Avenue and Hill Street in South Bend as more particularly described in the
Purchase Agreement (the "Property");
B. As contemplated in the Purchase Agreement,the Commission agreed to undertake
1 certain Local Public Improvements (as defined in the Purchase Agreement) with respect to the
Property;
C. The Commission, through a public bid process, entered into a contract with
Contractor (Job/Contract No. 113-033 (the "Job/Contract")) to perform certain of the Local
Public Improvements as reflected in the Contract entered into between Commission and
Contractor, including certain stormwater and drainage improvements (the "Stormwater &
Drainage Work") as well as parking lot paving, striping and sidewalk work to be performed at a
later date (the "Paving Work");
D. The Commission has certified that the Stormwater& Drainage Work is completed
and desires to close on the sale of the Property to Developer and Developer desires to purchase
the Property from Commission;
E. The Parties desire to enter into this Agreement to memorialize their agreement
'a that (a) Developer is purchasing the Property subject to the agreement of Commission to
complete (or to cause to be completed) the Paving Work in the future, (b) Developer agrees to
'= grant the Commission and Contractor all reasonable access to the Property to complete such
Paving Work, and (c) the Parties agree to coordinate, in good faith, the completion of the Paving
l Work in connection with the completion of the construction of other improvements by Developer
on the Property.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Parties hereby make, declare and agree to the following covenants, easements and
;1 restrictions:
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1. Background. The background provisions above are incorporated into the body of
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this Agreement as if fully set forth herein.
2. Completion of Paving Work. The Parties acknowledge that the Commission has
engaged Contractor to complete certain work under the Job/Contract and a portion of such work
(including parking lot paving, striping and sidewalk work on the Property as described in the
Job/Contract (the "Remaining Work")) will be scheduled for completion upon request of
Developer in connection with its completion of building improvements on the Property. The
Parties agree to work, in good faith, to schedule the completion of all of Contractor's Remaining
Work on the Property in coordination with the Developer's construction schedule and building
' improvements on the Property.
-.� 3. Access. The Parties acknowledge that on or about the same date as this
Agreement, the Commission is transferring title to and possession of the Property to Developer.
Developer agrees and hereby grants the Commission and Contractor the temporary and non-
exclusive right to access and enter upon and use the Property (outside of any building
improvements) in conducting and completing such Remaining Work. Subject to coordinate
efforts referred to in Section 2 above, this non-exclusive right to enter upon and use the Property
1 for said Remaining Work shall be at all reasonable times.
4. Other Rights and Terms.
(a) In consideration for all access rights to complete the Remaining Work, the
Contractor hereby agrees and undertakes to hold the Civil City of South Bend, Indiana,
the Commission and Developer (and the agents, contractors, employees, successors and
assigns of each), free and harmless from any liability, loss, costs, damages or expenses,
including attorney's fees, which such parties may suffer or incur, as a result of any claims
or actions which may be brought by any person or entity arising out of the rights granted
herein.
(b) The rights granted under this Agreement shall terminate without further
action by the Commission or Developer upon the earlier of(i) the date the Remaining
Work is completed, or (ii) delivery of written notice from both the Commission and
Developer to the Contractor pursuant to any notice provisions below.
(c) To the extent that any portion of the Property is disturbed by Contractor in
connection with the exercises of the privileges granted under this Agreement, Contractor
shall restore the Property to the same condition in which it was immediately prior to such
disturbance to the satisfaction of the Commission and Developer.
(d) Contractor understands and agrees that it will secure in its own name and
at its own expense all necessary permits and authorizations needed in order to conduct the
Remaining Work. Contractor shall not, without the prior written consent of the
Commission and Developer, cause or permit, knowingly or unknowingly, any hazardous
material to be brought or remain upon, kept, used, discharged, leaked or emitted in or
about, or treated at the Property.
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(e) Contractor understands and agrees that it will, at its own expense, observe
and comply with all present and future statutes, laws, ordinances, requirements, orders,
rules and regulations of all governmental authorities regarding the Remaining Work.
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5. Insurance.
(a) Contractor, at its expense, shall prior to accessing the Property to perform
the Remaining Work and during the remainder of the term of this Agreement, procure
and maintain commercial general liability insurance regarding the Property covering
Contractor as the named insured and identifying the Developer as an "additional insured"
with respect to Contractor's actions with companies qualified to do business in the State
of Indiana, for limits of not less than $700,000.00 for bodily injury, including death
resulting therefrom, and personal injury for any one (1) person in any one (1) occurrence,
$5,000,000.00 for such injuries for all persons for any one (1) occurrence, $1,000,000.00
property damage insurance, or a combined single limit in the amount of$6,000,000.00.
Notwithstanding the foregoing, Contractor shall, at all times, maintain said general
liability insurance regarding the City of South Bend and Commission, as may be required
under the Job/Contract.
(b) Developer, at its expense, shall prior to Contractor accessing the Property
to perform the Remaining Work and during the remainder of the term of this Agreement,
procure and maintain commercial general liability insurance regarding the Property
covering Developer as the named insured and identifying the Contractor as an "additional
insured" with respect to Developer's actions on the Property with companies qualified to
do business in the State of Indiana, for limits of not less than $700,000.00 for bodily
injury, including death resulting therefrom, and personal injury for any one (1) person in
any one (1) occurrence, $5,000,000.00 for such injuries for all persons for any one (1)
occurrence, $1,000,000.00 property damage insurance, or a combined single limit in the
amount of$6,000,000.00.
6. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given on the date of delivery if delivered in person or if sent
by overnight delivery by a nationally recognized overnight delivery service such as UPS or
Federal Express, addressed as provided to the address in the signature blocks of this Agreement.
7. Governing Law. This Agreement shall be governed by, construed and enforced
according to the laws of the State of Indiana.
8. Counterparts. This Agreement may be executed in several counterparts, each of
which, when executed, shall be deemed an original; and all such counterparts shall together
constitute one and the same instrument.
9. Amendments. This Agreement may be amended or terminated at an time b an
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'1 instrument signed by all Parties.
The undersigned person(s) signing on behalf of his/her respective Party certifies that
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he/she is duly authorized to bind his/her respective Party to the terms hereof.
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