HomeMy WebLinkAboutagenda report 2015 0129 rdc 06c2ITEM: 6.C.(2)
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Department of
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1865
Memorandum
July 18, 2014
TO: Redevelopment Commission
FROM: Jitin Kain R,
SUBJECT: Fapade Easement Agreement with Catalyst ONE, LLC
Attached to this memorandum is a Fapade Easement agreement with Catalyst ONE, LLC for the
fapade of the first two buildings in the multi- tenant campus at Ignition Park.
On March 27, 2014, the Commission approved a Development Agreement with Great Lakes Capital
for the construction of three buildings as part of a multi- tenant building campus. Through this
agreement, the Commission committed resources in the amount of $2.7 Million for three buildings.
Buildings 1 and 2 are currently under construction.
Project engineers estimate that construction management fee, site utility work, and other site
improvements (curbs, sidewalks, landscaping, etc) for Buildings 1 and 2 will cost roughly $1.5
Million. This leaves roughly $300,000 out of the allocated project budget of $1.8 Million for the two
buildings. Staff is recommending that this remainder be used towards fapade work on both the
buildings.
Staff requests approval of the attached Fapade Easement Agreement with Catalyst ONE.
227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 1 P: 574 - 235 -9371 1 FAX: 574 - 235 -9021 1 SOUTHBENDIN.GOV
FACADE EASEMENT AGREEMENT
This Facade Easement Agreement ( "Agreement ") is made and given on the day of
January, 2015, by and between the South Bend Redevelopment Commission ( "Grantee ") and
Catalyst ONE, LLC (as successor in interest to certain rights of Great Lakes Capital
Development, LLC, an Indiana limited liability company ( "Grantor ") (collectively the "Parties ").
STATEMENT OF FACTS
A. Grantor is the owner in fee simple of the real property more fully described on the
attached Exhibit "A" ( "Property ") and is undertaking the construction of two
separate commercial structures on such Property, located in Ignition Park, in the
City of South Bend, Indiana (hereinafter referred to as the "Buildings ").
B. Grantor is giving this Facade Easement (" Facade Easement ") to the Grantee to
impose certain restrictions regarding the aesthetics of the Facade on the Buildings
and to assist Grantee with its desire to preserve and maintain the designated
character of the Buildings and of Ignition Park.
C. The Facade of the Buildings which is to be constructed and owned by Grantor and
which will be the subject matter of this Agreement, is depicted and illustrated on
Exhibit `B -1" (for one building) and Exhibit `B -2" (for the other building) (each,
a "Facade ").
D. It is the specific intention of the Parties hereto to exclude the interior and other
parts of the Buildings and Property (other than the Facade of each Building) from
this Facade Easement.
E. Grantor desires to give to Grantee and Grantee desires to accept the Facade
Easement.
Based upon the mutual promises contained herein, the Parties agree as follows:
I . Incorporation of Statement of Facts. The Statements of Facts are incorporated
into the operative provisions of this Agreement as if fully set out herein.
2. Consideration. In consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which Grantor hereby acknowledges,
Grantor hereby does give and convey to the Grantee a Facade Easement regarding the Facade of
the Buildings.
3. Term of Facade Easement. The term of this Agreement is ten (10) years from the
date of execution.
4. Description of Facade Easement. It is agreed by and between Grantor and
Grantee, the design drawings of the Facade shown on "Exhibits B -1 and B -2" is the Facade that
shall be constructed or installed on the Buildings and owned by Grantor (subject to the terms and
restrictions hereof), and is the Facade to which this Facade Easement relates.
5. Consents Required. During the term of this Agreement, the Grantor agrees to do
(or refrain from doing, as the case may be) each of the following:
a. The Grantor shall not demolish, remove or raze the Facade without the express
written consent of Grantee.
b. The Grantor shall not undertake or allow to be undertaken any changes to the
Facade including any of the following without the express written consent of the
Grantee:
i. Any material change in the Facade including the alteration, partial
removal, construction, remodeling or physical or structural change or
change in color or surfacing with respect to the materials, appearance or
construction of the Facade;
ii. Add any additional signs, canopies or plaques to the Facade;
iii. Any significant reconstruction, repair, repainting or refinishing of the
Facade that materially alters its state from its then existing condition.
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C. This Section shall not include ordinary or necessary maintenance as covered by
Section 7 below or Grantor's repair or reconstruction of the Fagade in conformity
with Exhibit `B" following a casualty or other event which damages such Fagade.
6. Timing of Consent. Within thirty (30) days after Grantor requests in writing
permission of Grantee to make a change to the Fayade, written consent or refusal to allow the
change shall be delivered to the Grantor. In the event Grantee fails to make a decision relative to
a request made by Grantor within thirty (30) days of the request, the request will be deemed
granted.
7. Maintenance. Grantor agrees that it shall perform ordinary maintenance on the
Fagade to maintain its appearance and structural soundness and prevent any material
deterioration of the Fagade. The Grantor shall not have to notify the Grantee maintenance is
going to be performed. Grantor shall have no responsibilities relative to any defects in the
installation of the Fagade, or in the materials which are utilized to construct the Fagade, since the
Grantee is responsible for the purchase of the materials for and the installation of the Fagade and
for the correction of such defects.
8. Specification of Work. In the event Grantor is required to seek the consent of the
Grantee pursuant to Section 5 of this Agreement, the Grantor shall give the Grantee copies of the
plans, designs, elevations, specifications, and documents relating to the change or work,
including specification of all materials, colors and construction techniques to be used in any such
work and photographs of the subject area as it appears at the time of the request.
9. Insurance. Grantor, at its expense, shall (i) keep each Building including the
Fagade insured under a standard form of insurance policy against loss or damage resulting from
fire and other perils normally insured under a uniform standard extended coverage endorsement
limited only as may be provided in the standard form of extended coverage endorsement at the
time in use in the State of Indiana and (ii) carry and maintain comprehensive public liability
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insurance. The public liability policy shall name the Grantee as an additional insured as to the
Facade only and shall provide for not less than thirty (30) days prior written notice to the Grantee
by the insurer of any proposed cancellation of any such insurance. The Grantor shall deliver to
the Grantee a certificate of insurance prior to the recording of this Facade Easement and, on
renewal, a new certificate shall be sent to the Grantee.
10. Casualty Damage. In the event that a Building or any part thereof (including the
Facade) shall be damaged by fire or other casualty, then the proceeds of the insurance required to
be carried pursuant to Section 8 shall be applied to reconstructing the Facade as constructed
under this Agreement if and in the event the Building is reconstructed. If a Building is damaged
to such an extent Grantor determines reconstruction is not feasible and provides the Grantee with
a statement from an independent engineer to the same effect, then this Facade Easement shall be
void and of no further force and effect.
11. Inspection. Grantor covenants representatives of the Grantee shall be permitted to
inspect the Facade from the street for the purpose of determining conformance with Facade
Easement.
12. Grantee's Remedies. In the event of a violation of any provision of this
Agreement, the Grantee may, (i) upon thirty (3 0) days prior written notice to Grantor and
(ii) permitting Grantor an opportunity to take reasonable steps to cure any alleged violation,
enforce the Agreement.
13. Runs With the Land. The obligations required by this Agreement shall be deemed
to run as a binding servitude with the Property and the Facade. This Agreement shall be binding
upon Grantor and the Grantee and all persons hereafter claiming any rights through the Grantor
and the Grantee and the word "Grantor" and "Grantee" when used, herein shall include all such
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persons. Anything contained herein to the contrary notwithstanding, a person shall have no
obligation under this Agreement when the person has ceased to have any interest in a Building or
Fagade by reasons of a bona fide transfer.
14. Notices. Any notice required under this Agreement shall be in writing and shall
be mailed, postage prepaid, by registered or certified mail with return receipt requested, or hand
delivered and receipted.
CompanX:
Great Lakes Capital Development, LLC
112 W. Jefferson Blvd., Ste. 200
South Bend, IN 46601
Attn: Ryan Rans
With copy to:
Richard Deahl
Barnes & Thornburg
1st Source Bank Center
100 North Michigan
South Bend, IN 46601
Commission:
Department of Redevelopment
City of South Bend, Indiana
1400 City - County Building
227 W. Jefferson Boulevard
South Bend, IN 46601 -1830
Attn: President
With copy to:
City Attorney's Office
City of South Bend, Indiana
227 W. Jefferson Boulevard, Ste. 12005
South Bend, IN 46601 -1830
Attn: Cristal Brisco
15. Recording. This Agreement shall be recorded in the Office of the St. Joseph
County, Indiana Recorder.
16. Condemnation. In the event that any governmental authority institutes a suit by
virtue of eminent domain, or other similar proceedings for any public or quasi - public or other use
against all or a portion of the Fagade, this Agreement shall immediately terminate on that portion
of the property only.
17. Taxes. Grantor shall pay when due and owing, all real estate taxes, water charges,
sewer charges, and other charges, which may become a lien on the premises, provided, the
Grantor may make payment under protest where permitted by law.
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18. Indemnify. The Grantor agrees that it shall defend, indemnify and hold the
Grantee harmless from and against any liability, claims, suits, demands, judgments (including
costs, expenses and attorney's fees), resulting from actions or claims by third parties or defaults
under this Agreement by the Grantor arising out of the conveyance of or possession of this
Fagade Easement.
19. Headings. Section headings used in this Agreement are for convenience or
reference only and do not affect the meaning of provisions which they precede.
20. Public Access. The Grantor and Grantee agree the public shall have the regular
and substantial opportunity to view the Fagade from public rights of way and /or sidewalks in
front of the Buildings. The Grantor shall have no obligation to allow the general public to view
the interior of the Buildings or any portions of the Buildings or Property other than the Fagade.
21. Right to Use of the Premises. The Grantor reserves for itself, its successors,
assigns, mortgagees and lessees the right to continue to use and occupy the premises for all
lawful purposes not inconsistent with this Fagade Easement.
22. Subordination. This Agreement and all rights of Grantee hereunder are subject
and subordinate to the lien of any mortgage to any bank, insurance company or other lending
institution, now or hereafter in force against the Property.
23. Amendment. For purposes of furthering the preservation of the Fagade and of
furthering the other purposes of this Fagade Easement and to meet the changing conditions,
Grantor and the Grantee are free to amend this instrument from time to time by mutual consent
in writing and such amendment shall become effective upon its signing.
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24. Incorporation by Reference. Grantor agrees the restrictions contained in this
Agreement will be inserted by express reference in any subsequent legal instrument affecting the
Property.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, on the date first shown above, Grantor and the South Bend
Redevelopment Commission have signed this Agreement.
CATALYST ONE, LLC
By: Great Lakes Capital Management, LLC
Its: Manager
an
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Ryan C. Rans, Manager
Before me, a Notary Public in and for said County and State, personally appeared Ryan C. Rans,
as Manager of Great Lakes Capital Management, LLC acting as Manager for and on behalf of Catalyst
ONE, LLC and acknowledged the execution of the foregoing on the day of January, 2015.
My Commission Expires:
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Printed: , Notary Public
Residing in St. Joseph County
CITY OF SOUTH BEND, DEPARTMENT OF
REDEVELOPMENT, by and through the
South Bend Redevelopment Commission,
its governing body
By: _
Printed:
Title:
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, a Notary Public in and for said County and
of
acknowledged the execution of the foregoing on the day of
My Commission Expires: Printed:
Residing in St. Joseph County
State, personally appeared
and
, 2014.
Notary Public
THIS INSTRUMENT PREPARED BY: Randolph R. Rompola, Attorney at Law, 202 S. Michigan St., Suite 1400,
South Bend, Indiana 46601 -2020.
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 — Randolph R. Rompola.
9
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EXHIBIT A
LOT NUMBERED SEVEN (7) IN THE REOCRDED PLAT OF IGNITION
PARK MAJOR SUBDIVISION, SECTION TWO, RECORDED JULY 1, 2014
AS INSTRUMENT NUMBER 1415380 IN THE OFFICE OF THE RECORDER
OF ST. JOSEPH COUNTY, INDIANA ( "RECORDER "), AS CORRECTED
AND RE- RECORDED WITH THE RECORDER ON SEPTEMBER 18, 2014
AS INSTRUMENT NO. 1423192.
A -1
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EXHIBIT B -1
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