HomeMy WebLinkAboutWaffle House •
2.'7 202314071 MISC $25.00
07/24/2023 12:23:21P 27 PGS
Steve Gill
Clark County Recorder IN
Recorded as Presented
IIIIIII III III IIIIIIIIIIIIIIIII II IIII IIIIIIIIIIIIIII IIIIIII III
COMMERCIAL/INDUSTRIAL DEVELOPMENT
STORMWATER LONG-TERM OPERATION AND MAINTENANCE AGREEMENT
File No.: Parcel ID.:
As accepted through SWQMP No.:
Project Name: 1},9104- NovSL
Primary function or description of activities to be executed at the site:
l'o.1/67—gve-ii ) of 4 Iek9file- hfoase Res 77I (� .)
This AGREEMENT, made and entered into this /8 day of nifyasr , of the yearo?D/(o, by
and between Gjf?FF/E Hovse., ri✓G . (hereinafter called the "OWNER") and the
City of Jeffersonville, Indiana.
WITNESS, that
WHEREAS, Ordinance No.2005-OR-65, was adopted November 21, 2005 by the City of
Jeffersonville establishing requirements for storm water quality Best Management Practices
(BMPs) and a Storm Water Quality Management Permit (SWQMP) to manage the quality of
storm water discharged from areas of urban development and redevelopment.
WHEREAS, under said Ordinance, the City of Jeffersonville shall have the authority to
inspect private systems within the City of Jeffersonville and to order such corrective actions
to said private storm water management systems as are necessary to maintain properly the
storm water management systems within the City of Jeffersonville.
WHEREAS, under said Ordinance it is provided that storm water quality BMPs not owned
municipally must be maintained by the property owner according to the terms of Long-Term
Operation and Maintenance Agreement that must be implemented before a SWQMP is
approved.
WHEREAS, the City of Jeffersonville has adopted and approved technical guidelines relating
to storm water quality best management practices in the City of Jeffersonville.
WHEREAS, the OWNER is the legal title-holder of certain real property, more particularly
described as Lo7n10 %NRee(3)o PT He h.voR PMATof LeAtiKr id dins es sveoivlsio' PB/o,Pj58
as recorded by deed in the land records of the City of Jeffersonville, in Deed Book at
Page (hereinafter called the "Property"). .T.ids1 o e.,I%No.do/('i3 ao(o WO 7//2//&
An'/9CHLD Hae. To .
WHEREAS, the OWNER is proceeding to build on, develop or redevelop the property.
WHEREAS, the Stormwater Pollution Prevention Plan (SWPPP) and Long-Term Operation
and Maintenance Plan, sealed by DAUo / 64-,►l1eiPs , a licensed Professional
Engineer, dated d/ f/6 , on file, the City of Jeffersonville, which is expressly made a part
hereof, as approved or to be approved by the City of Jeffersonville, provides for storm water
quality management within the confines of the property.
WHEREAS, the City of Jeffersonville and the OWNER agree that the health, safety, and
general welfare of the residents of the City of Jeffersonville require that onsite storm water
quality best management practices be constructed, operated and maintained on the property.
WHEREAS, the City of Jeffersonville requires that onsite storm water facilities in accordance
with the Stormwater Pollution Prevention Plan (SWPPP) and Long-Term Operation and
Maintenance Plan be adequately designed, constructed, installed, operated and maintained
by the OWNER.
WHEREAS, an approved Stormwater Pollution Prevention Plan and Long-Term Operation
and Maintenance Plan will adequately illustrate the location type and extent of storm water
quality BMPs, minimum inspection procedures and schedule, minimum operation procedures
and schedule, and anticipated minimum maintenance activities including when and how to
remove accumulated/collected/filtered/amassed/grown excess vegetation, sediment, debris,
trash, pollutant and/or forms of pollution from the storm water quality best management
practices.
NOW, THEREFORE,
In consideration of the foregoing premises, the mutual covenants contained herein, and the
following terms and conditions, the parties hereto agree as follows:
1. The onsite storm water quality best management practices shall be constructed by the
OWNER in accordance with the SWPPP and Long-Term Operation and Maintenance
Plan.
2. The OWNER shall operate and maintain the storm water quality BMPs as directed by the
Long-Term Operation and Maintenance Plan in good working order acceptable to the City
of Jeffersonville for perpetuity.
3. The OWNER agrees that inspections will be performed by a Qualified Professional.
4. The OWNER agrees that inspections will be documented and include the following
information:
a. A description of the current operational or functional status of the storm water quality
BMPs. For structures that accumulate sediment, trash, debris other pollutant or form
of pollution, an indication of used and remaining capacity (fraction, percentage, depth
or volume) shall be given to identify when the BMP must be cleaned out.
b. Identification of any necessary repairs, sediment/debris removal or replacement of all
or portions of the storm water system(s).
c. The results of any field or laboratory analyses performed.
d. Other relevant or unusual observations related to the system(s).
e. Action plan to prevent premature storm water system failure as consistent with the
Long-Term Operation and Maintenance Agreement(s) provisions.
f. Action plan to prevent the premature system failure that exceeds the Long-Term
Operation and Maintenance Agreement(s) provisions, but are necessary to prevent
storm water pollution from leaving the site.
5. The OWNER hereby grants permission to the City of Jeffersonville, its authorized agents
and employees to enter the property to inspect the storm water quality best management
practices whenever it deems necessary. Whenever possible, the City of Jeffersonville
shall notify the OWNER prior to entering the property.
6. In the event the OWNER fails to maintain storm water quality best management practices
in accordance with the SWPPP and Long-Term Operation and Maintenance Plan in good
working order acceptable to the City of Jeffersonville, the City of Jeffersonville may enter
the property and take whatever steps it deems necessary to repair or maintain said storm
water quality best management practices. This provision shall not be construed to allow
the City of Jeffersonville to erect any structure of a permanent nature on the land of the
OWNER without first obtaining written approval of the OWNER. It is expressly
understood and agreed that the City of Jeffersonville is under no obligation to maintain or
repair said facilities, and in no event shall this Agreement be construed to impose any
such obligation on the City of Jeffersonville.
7. In the event the City of Jeffersonville, pursuant to this Agreement, performs work of any
nature, or expends any funds in performance of said work for labor, use of equipment,
supplies, materials, and the like, the OWNER shall reimburse the City of Jeffersonville
upon demand, within ninety (90) days of receipt thereof for all costs incurred by the City
of Jeffersonville hereunder. In the event, the OWNER does not reimburse the City of
Jeffersonville within ninety (90) days of receipt; the City of Jeffersonville may apply a lien
upon the property for double the expense to the City of Jeffersonville. In the event that
the OWNER does not reimburse the City of Jeffersonville within one year from the
application of a lien upon the property then the City of Jeffersonville may take other legal
measures to recover costs, including associated legal costs, incurred by the City of
Jeffersonville.
8. It is the intent of this Agreement to guarantee the proper maintenance of onsite storm
water quality best management practices by the OWNER; provided, however, that this
Agreement shall not be deemed to create or affect any additional liability of any party for
damage alleged to result from or be caused by storm water management practices.
9. The OWNER, its executors, administrators, assigns, and any other successors in
interest, shall indemnify and hold the City of Jeffersonville and its agents and employees
harmless for any and all damages, accidents, casualties, occurrences, or claims which
might arise or be asserted against the City of Jeffersonville from the construction,
presence, existence, operation or maintenance of the storm water quality best
management practices by the OWNER or the City of Jeffersonville.
10. In the event a claim is asserted against the City of Jeffersonville, its agents, or employees
for the construction, presence, existence, operation or maintenance of the storm water
quality best management practices by the OWNER, the City of Jeffersonville shall notify
the OWNER and the OWNER shall defend at its own expense any suit based on such
claim. If any judgment or claims against the City of Jeffersonville, its agents, or
employees shall be allowed, the OWNER shall pay all costs and expenses in connection
therewith.
11. This Agreement as attached by the SWPPP and Long-Term Operation and Maintenance
Plan shall be recorded among the land records of the City of Jeffersonville, and shall
constitute a covenant running with the land, and shall be binding on the OWNER, its
administrators, executors, assigns, heirs, and any other successors in interest.
12. This Agreement as attached by the SWPPP and Long-Term Operation and Maintenance
Plan shall be recorded among real property title documents for the said property, and
shall constitute a covenant running with the land, and shall be binding on the OWNER, its
administrators, executors, assigns, heirs, and any other successors in interest.
WITNESS the following signatures and seals:
City of Je sonville, In iana
By A (
Drainage Board, C air
ATTEST:
I, S Ot f b AcA Co r)0.1‘t► , a Notary Public in and for the City of
Jeffersonville and State aforesaid, whose commission expires on the o29 day kArtA 54 of the year Zo3 0 , do certify that
S'te ✓e G i.lt whose names are
signed to the foregoing Agreement bearing date of the S day of 3-LA(I , of the
year 2oZ , have acknowledged the same before me in my said City of Jeffersonville
and State aforesaid.
GIV un r my hand this .5.- day of T-t/ , of the year 7-9,1).
otary Public
‘,‘t-I'P SABRINA CORBIN
o•'••• �%Notary Public,State of Indiana
• Clark County
==:SEAL "=
*. *` Commission Number NP0743347
/ • ,. ? My Commission Expires
/ //N°1AN1�`� August29,2030
Prepared by: i/ 1/ /h10jl14/t
•
Owner of roperty,
By
Owner, a escribed o age 1 of the Document
ATTEST:
G�uh
I, ITN` '4 1)Jk-s i D , a Notary Public in and for the City of
nr<rr and aforesaid, whose commission expires on the b day of
OE itA, , of the year Z , do certify that
b1 N v`t(CS whose names are
signed to the foregoing Agreement bearing date of the 18 day of Alb v s T , of the
year Zu 1 b , have acknowledged the same before me in my said
and State-aforesaid. C nvnr' DE 6 wr n►1t 7—
GIVE under my hand this\. \1/**/ i , of the year L" I (
Di
My Comm.Exp. :
Oct.6.2017
Notary Public ..
y j. UU B�\G
"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."
Signature i-it y d-r Se��c,.lohv;Ile,
r r�� •
202613206 WD $18.00
07/28/2016 02:13:16P 2 PGS
Zachary Payne
Clark County Recorder IN
Recorded as Presented
WARRANTY DEED
GRANTEE'S ADDRESS: P.O. Box 6450, Norcross, GA 30091
MAIL TAX STATEMENTS TO: Waffle House, Inc. •
Attn: Tax Dept.
5986 Financial Drive
Norcross, GA 30071
•
Key#042.105-0030 Parcel#10-42-03-700-200.000-039
& Parcel#10-42-03-600-109.000-039
THIS INDENTURE WITNESSETH: That Lenfert Properties LLC, an
Indiana limited liability company, by and through its duly authorized member
CONVEYS AND WARRANTS
unto Waffle House Inc, a Georgia corporation, for and in consideration of the sum of •
One Dollar ($1.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, the following described real estate situated in the County of
Clark, State of Indiana, and described as follows, to-wit:
LOT NO. THREE (3) OF THE MINOR PLAT OF LENFERT •
PROPERTIES SUBDIVISION,OF RECORD IN PLAT BOOK 16,PAGE •
58, OF CLARK COUNTY, INDIANA RECORDS, AS AMENDED BY •
•
QUITCLAIM DEED AND RATIFICATION OF PLAT RECORDED ON •
MAY 4, 2016, AS INSTRUMENT NO. 201607942, AFORESAID
RECORDS.
•
Subject to any and all easements and/or restrictions of public record,which may
apply to the above-described real estate including that Declaration of Reciprocal
Access Easements dated as of January 12, 2016.
TO HAVE AND TO`IiOLD,the same unto.said Grantee, its heirs and assigns,in•
fee simple forever. '
The above described real estate is conveyed free arid clear of all liens and
encumbrances,except the real estate taxes, which having been prorated to the date of
closing, the Grantee hereby assumes and agrees to pay all taxes hereafter.
•
•
DULY FHTEREO 1 R T".XATON
:URJFGT TO ONi;_ACCEPT.ARCE
FOR YHANSFER
4:dnor,Dad,carp,"
IN WITNESS WHEREOF,the Grantor has hereunto set its hand and seals this
2_day of `T'..tj , 2016.
Lenfert Properties LLC
By:i/14(40-4-i (Seal)
Printed Name/Member
STATE OF INDIANA )
) SS:
COUNTY OF Ficori )
Before me, a Notary Public, in and for said County and State, personally
appeared Lenfert Properties LLC, by and through its duly authorized member,
Le.•.P/t me r..�✓ ,
and acknowledges the execution of the foregoing Deed to be its free and voluntary act
and deed for the uses and purposes expressed therein.
WITNESS my hand and seal, this 7day of Z1 w k.� , 2016.
My Commission Expires: N ublic
d -1JUSTIN E. ENDRES 5�- n (' eit a/c J
Floyd Cc:urty
;•Commiaion Expires Printed Name
June 11.2217
fAl r v 4 ,r
Resident of Et- A County, IN
THIS INSTRUMENT PREPARED BY:
YOUNG, LIND, ENDRES & KRAFT
JOHN A. KRAFT, ATTORNEY
126 W.SPRING STREET
NEW ALBANY, IN 47150
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each
Social Security runber in this document, unless required by law.
By: 1.A.,5" 7:e% FT. estArts
201613204 REL $14.00
j 07/28/2016 02:13:16P 2 PGS
///' Zachary Payne
Clark County Recorder IN
Recorded a Presented
II
MORTGAGE RELEASE
FOR VALUE RECEIVED, the undersigned hereby RELEASES AS FULLY
SATISFIED the Mortgage by Lenfert Properties LLC, an Indiana limited liability
company to Robert Lynn Company Inc.,recorded September 28, 2015, at Instrument
#201517304, in the Office of the Recorder of Clark County,Indiana. The undersigned
hereby acknowledges that the indebtedness secured by the Mortgage has been paid and
satisfied in full.
IN WITNESS WHEREOF, Robert Lynn Company Inc.,by and through its duly
authorized officer,has caused this Mortgage Release to be executed this . :".of June,
2016.
V Robert Lynn Company Inc
By: �"C1-' (Seal)
Rose y F. L.��tw - , ,J a &
Printed Name/Title
v '
STATE OF INDIANA )
SS:
COUNTY OF )
Before me, a Notary Public, in and for said County and State, personally
appeared Robert Lynn Company Inc by and through its duly authorized officer,Robert
F.Lynn,President, and acknowledges the execution of the foregoing Mortgage Release.
WITNESS my hand and seal, this 30 day of June, 2016.
At"
No ry'ublic
• 1
My Cr n n fission Expires: f C ,6s4- -% e 6A4J
,or',,,.
JUSTIN ENDRES Printed Name
nay
My Corr:mi.l,;ior, c,;re.^ Resident of Rid County, IN
" ' June 11,2:117
THIS INSTRUMENT PREPARED BY:
JUSTIN E. ENDRES
YOUNG, LIND, ENDRES &KRAFT
• 126 W. SPRING STREET
NEW ALBANY, IN 47150
"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?
‘hk51 .r... C Lrid (es
c.€1\
201613205 EAS $41.00
07/28/2016 02:13:16P 16 PGS
Zachary Payne
Clark County Recorder IN
Recorded as Presented
1'110'j'il;j%'''��l i''�'��'i,4 i ;►;i s.
EASEMENT AGREEMENT
. This Easement Agreement(hereinafter this
��Ll�� gre "Agreement")is made this 7 day
of N , , 2016,by and between Martin&Bayley,Inc., an Illinois corporation("Martin
& Bayley"), with the address of P.O. Box 385, Carmi, Illinois 62821, and Waffle
House,Inc., a Georgia corporation,with an address of 5986 Financial Drive,Norcross,
Georgia, 30071, its successors and assigns, ("Waffle House").
1. Preliminary Statement Regarding Purpose of Agreement. Martin &
Bayley is the owner of real estate commonly known as Lot 2 of the Minor Plat of
Lenfert Properties Subdivision, Jeffersonville, Clark County, Indiana(the"Martin&
Bayley Real Estate"). Waffle House is the owner of real estate commonly known as
Lot 3 of the Minor Plat of Lenfert Properties Subdivision, Jeffersonville, Clark
County, Indiana (the "Waffle House Real Estate"). The parties intend to construct a
detention basin and appurtenant drainage facilities (the "Drainage Improvements")
to service both the Martin & Bayley Real Estate and the Waffle House Real Estate.
Martin&Bayley has accordingly agreed to grant a drainage easement over a portion
of the Martin & Bayley Real Estate, and Waffle House has similarly agreed to grant
a drainage easement over a portion of the Waffle House Real Estate. Further, Waffle
House has agreed to grant to Martin & Bayley a temporary access easement over a
portion of the Waffle House Real Estate. The parties now make this Agreement in
order to memorialize the terms and conditions of the grant of the easements set forth
herein. •
2. Reciprocal Drainage Easement. Martin & Bayley does hereby grant to
and for the benefit of the Waffle House Real Estate, Waffle House, its successors and
assigns, a permanent, non-exclusive drainage easement for the purpose discharging
surface water, under and through the land of said undersigned, situated in Clark
County, Indiana, together with the right of ingress and egress for the above stated
purposes (the "Martin & Bayley Real Estate Drainage Easement"). The easement
shall be over and along the following described real estate, to-wit:
BEING A PART OF LOT 2 OF THE MINOR PLAT OF LENFERT
PROPERTIES SUBDIVISION AS RECORDED IN INSTRUMENT
#201600116 OF THE RECORDER OF CLARK COUNTY, INDIANA
LYING IN SURVEY #37 OF THE ILLINOIS GRANT, UTICA
TOWNSHIP, CLARK COUNTY, INDIANA, MORE PARTICULARLY
DESCRIBED AS FOLLOWS: COMMENCING AT THE
WESTERNMOST CORNER OF SAID LOT#2 AT A#5 REINFORCING
BAR WITH A YELLOW PLASTIC CAP STAMPED "PRIMAVERA
#0049", HEREINAFTER THIS TYPE OF MONUMENT IS REFERRED
TO AS A CAPPED REINFORCING BAR, ON THE SOUTHEAST LINE
OF THE B & O RAILROAD AND THE POINT OF BEGINNING;
THENCE ALONG THE SOUTHEAST LINE OF SAID RAILROAD
NORTH 22°44'21"EAST 202.39 FEET TO A CAPPED REINFORCING •
BAR ON THE NORTH LINE OF SAID LOT#2,'THENCE ALONG THE
SAID NORTH LINE SOUTH 58°07'53" EAST 61.95 FEET, THENCE
LEAVING SAID NORTH LINE SOUTH 33°40'53" WEST 75.00 FEET,
THENCE SOUTH 17°28'20" WEST 207.71 FEET TO THE SOUTH
LINE OF SAID LOT#2, THENCE WITH SAID SOUTH LINE NORTH
55°04'35"WEST 60.42 FEET TO THE POINT OF BEGINNING.
("Martin & Bayley Real Estate Drainage Easement Area")
Waffle House does hereby grant to and for the benefit of the Martin& Bayley •
Real Estate, Martin&Bayley,its successors and assigns, a permanent,non-exclusive
drainage easement for the purpose discharging surface water, under and through the
land of said undersigned, situated in Clark County, Indiana, together with the right
of ingress and egress for the above stated purposes (the "Waffle House Real Estate
Drainage Easement"). The easement shall be over and along the following described
real estate, to-wit:
BEING A PART OF LOT 3 OF THE MINOR PLAT OF LENFERT
PROPERTIES SUBDIVISION AS RECORDED IN INSTRUMENT •
#201600116 OF THE RECORDER OF CLARK COUNTY, INDIANA
LYING IN SURVEY #37 OF THE ILLINOIS GRANT, UTICA
TOWNSHIP, CLARK COUNTY, INDIANA, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHERNMOST CORNER OF SAID LOT
#3 AT A #5 REINFORCING BAR WITH A YELLOW PLASTIC CAP
STAMPED "PRIMAVERA #0049", HEREINAFTER THIS TYPE OF
MONUMENT IS REFERRED TO AS A CAPPED REINFORCING BAR,
ON THE SOUTHEAST LINE OF THE B & 0 RAILROAD AND THE
POINT OF BEGINNING; THENCE ALONG THE NORTH LINE OF
SAID LOT #3 SOUTH 55°04'35" EAST 60.42 FEET, THENCE
LEAVING SAID NORTH LINE SOUTH 17°28'20"WEST 207.71 FEET
TO THE SOUTH LINE OF SAID LOT#3, THENCE NORTH 35°39'08"
WEST 77.49 TO A CAPPED REINFORCING BAR ON THE WEST
LINE OF SAID LOT#3 AND THE SOUTHEAST LINE OF THE B & 0
RAILROAD, THENCE ALONG SAID LINE NORTH 22°44'21" EAST
47.30 FEET TO THE POINT OF BEGINNING.
("Waffle House Real Estate Drainage Easement Area") Collectively the Martin
& Bayley Real Estate Drainage Easement Area and the Waffle House Real Estate
Drainage Easement Area shall be referred to as the "Drainage Easement Area".
3. Use of Drainage Easements. The drainage easements conveyed by this
instrument may be used by Waffle House and/or Martin& Bayley for the purposes of
constructing, connecting, using, operating, extending, maintaining, repairing, and
replacing the Drainage Improvements in such manner that they will safely and
reliably detain and convey storm water drainage through the Waffle House Real
Estate substantially in accordance with the grading plan attached hereto as Exhibit
"A" and incorporated herein by reference. Waffle House and their successors and
assigns, shall additionally have the right to enter along, over and upon the Martin&
Bayley Real Estate Drainage Easement Area to repair,relocate, service and maintain
such drainage, at will, and to make such alterations and improvements in the
facilities thereof as may be necessary or useful, as well as the right to remove from
the extent of the Drainage Easement Area any encroaching trees, buildings or other
obstructions to free and unobstruct the easement. The parties hereto shall cooperate
to vacate a portion of the drainage easements once the Drainage Improvements are
constructed and placed on the Drainage Easement Area. At such time the parties
shall vacate the excess portion of the drainage easements not necessary to carry out
the purpose hereof or otherwise cooperate in vacating the drainage easements and
replacing them with easements on the specific areas agreed upon to service the
installed Drainage Improvements.
The parties acknowledge that the easements conveyed by this instrument are
subject to all existing easements, restrictions, and encumbrances affecting the
Drainage Easement Area. The parties further acknowledge that each party may
grant other encumbrances over the portion of the Drainage Easement Area located
on its property, provided that such encumbrances do not unreasonably interfere with
the uses permitted to the other party hereunder.
4. Use of Drainage Easement Area. The parties and their successors or
assigns may use the surface of the Drainage Easement Area for access to the
Drainage Easement Area and for any other purpose which would not unreasonably
interfere with the drainage and uses permitted to the parties hereunder, including,
without limitation, vehicular parking, landscaping, sidewalks, driveways, curbing,
and related improvements;provided, however, that no buildings shall be constructed
within the Drainage Easement Area without the prior written consent of both parties.
5. Installation of Drainage Improvements. The initial construction of the
Drainage Improvements shall be performed by Martin& Bayley and the cost of such
construction shall be shared by Martin & Bayley and Waffle House in accordance
with the terms of a separate Escrow Agreement dated on or about the date hereof,
with each party being responsible for its Pro-Rata Share (as hereinafter defined).
6. Maintenance of Drainage Improvements.
6.1 Maintenance. Once constructed, Martin & Bayley or its
successors in interest (the "Responsible Party") shall maintain the Drainage
Improvements in accordance with generally accepted standards utilized by public
utilities in the area of Clark County,Indiana, at its sole cost and expense but subject
to reimbursement as provided in Section 6.2 below.
6.2 Reimbursement of Maintenance Costs. Waffle House or its
successors in interest (the "Reimbursing Owner") shall reimburse the Responsible
Party its Pro-Rata Share of the actual costs of performing the Maintenance ("Costs").
At such time as the Responsible Party has completed or caused to be completed any
Maintenance required to be performed hereunder,it shall provide to the Reimbursing
Owner an invoice for its Pro-Bata Share of the Costs, together with copies of all
underlying invoices and paid receipts therefor (a "Reimbursement Notice"). The
Reimbursing Owner shall pay its Pro-Rata Share of the Costs set forth in a
Reimbursement Notice to the Responsible Party within thirty(30) days after receipt
of the Reimbursement Notice (the "Payment Due Date"). If a Reimbursing Owner
has not paid its Pro-Rata Share of the Costs by the Payment Due Date, then interest
shall accrue on such Pro-Rata Share at the rate of two percent (2%) over the prime
rate charged by Bank of America, NA. (or, if Bank of America shall no longer exist,
such other national bank as the parties may reasonably agree upon)per annum (the
"Interest Rate") from the day following the Payment Due Date until paid. In the
event that the Interest Rate exceeds the amount of interest that may lawfully be
charged, then the Interest Rate shall automatically and without further action of the
parties be reduced to the highest rate of interest that may lawfully be charged, and
any interest accruing in excess of such lawful rate shall be refunded to the party
paying the same.
The parties acknowledge and agree that, as of the date of this Agreement, the "Pro-
Rata Share" of each Parcel shall be as follows:
Owner Pro-Rata Share
Martin &Bayley 60.0%
Waffle House 40.0%
100.0%.
6.3 Enforcement; Self-Help. In the event that any Maintenance is
required, Waffle House or its successors in interest may send written notice of the
need for such Maintenance to the Responsible Party. In the event that the
Responsible Party fails to complete such Maintenance within thirty (30) days after
the receipt of such written notice (or such longer period of time as may be reasonably
necessary to effect such repairs or maintenance provided that the Responsible Party
has promptly commenced such repairs and maintenance and is diligently pursuing
completion of the same), said requesting party (being referred to herein as the
"Curing Party")may(without obligation so to do)cause such repairs and maintenance
to be performed,and the Responsible Party shall be obligated to reimburse the Curing
Party its Pro-Rata Share of the Costs thereof. The Curing Party shall provide a
Reimbursement Notice to the Responsible Party in accordance with the provisions of
Section 6.2 above, and the provisions of said Section 6.2 shall govern with respect to
the payment of such share of Costs by the Responsible Party.
6.4 Maintenance Lien. If a Reimbursement Notice duly provided
under Sections 6.2 or 6.3 hereof is not paid when due, such unpaid amount(together
with accrued and unpaid interest) shall be a lien on the real estate of the defaulting
party upon the filing of a notice thereof in the applicable real estate records of Clark
County, Indiana ("Maintenance Lien"), which Maintenance Lien may be foreclosed
by the requesting party in accordance with applicable laws. All Maintenance Liens
created pursuant to this Section 6.4 shall be junior and subordinate to all first-
priority, bona fide mortgages, deeds of trust and/or deeds to secure debt securing
indebtedness incurred by an owner to an unaffiliated institutional lender, but any
extinguishment of such a Maintenance Lien by such institutional lender in the
foreclosure of such mortgage, deed of trust or deed to secure debt shall not release the
owner from personal liability for such charge as providing in this Section 6.4, which
shall be the continuing liability of such owner.
7. Manner of Work. The parties agree to perform any construction, Maintenance
or other work related to the Drainage Improvements within the Drainage Easement
Area in an expeditious and workmanlike manner using first class materials and in
accordance with all applicable laws, rules, ordinances and regulations. The parties
further agree that any existing utility lines located within the Drainage Easement
Area shall be field located and protected so that there is no interruption whatsoever
of the utility services provided by such lines as a result of the activities.
No Owner in the exercise of any of any easements or rights, or in the
performance of any duties under this Agreement,may cause or permit any mechanic's
or materialman's lien to attach to or to be perfected or enforced against the real estate
on which such party performs or causes to be performed any work. If any such claim
of lien should be filed in Clark County, Indiana land records against or affecting the
burdened real estate or any portion thereof, the party who caused the related work,
labor, services and/or materials to be provided or performed on the burdened real
estate shall cause any such claim of lien to be released of record or bonded over within
thirty (30) days after demand for such release by the owner of the burdened real
estate.
8. Temporary Access Easement.
8.1 Grant of Temporary Access Easement. Waffle House hereby
grants and conveys to Martin & Bayley a temporary, non-exclusive access easement
on, through, over and across that portion of the Waffle House Real Estate shown on
Exhibit "B" attached hereto and incorporated herein by reference (the "Temporary
Access Easement") for the purpose of vehicular and pedestrian ingress and egress to,
from and between the Martin&Bayley Real Estate and the existing curb cut to State
Road 62 located on the Waffle House Real Estate.
8.2 Temporary Access Road. Martin & Bayley shall have the right,
but not the obligation,exercisable during the term of the Temporary Access Easement
(as set forth in Section 8.3 below) and upon thirty (30) days' prior written notice to
Waffle House,to construct, at its sole cost and expense, a gravel or asphalt drive aisle
within the Temporary Access Easement area (the "Temporary Access Road"). If
Martin & Bayley elects to construct the Temporary Access Road, it shall cause such
construction to be completed in a good and workmanlike manner and in a manner
such that no lien shall attach to any portion of the Waffle House Real Estate.
8.3 Term. The Temporary Access Easement shall automatically
expire and terminate, without any further action by either party hereto, upon the
earlier to occur of (a) fifteen (15) days after the business to be constructed on the
Martin & Bayley Real Estate first opens its doors for business to the general public,
(b) thirty (30) days following receipt of written notice from Waffle House of the
commencement of its construction activities on the Waffle House Real Estate, and(c)
two (2) years after the date hereof. At the expiration of the Temporary Access
Easement, Martin & Bayley shall remove the Temporary Access Road and leave the
Temporary Access Easement area in a neat and orderly condition, even and graded
to a proper slope without pooling or flooding of water, remove all construction debris
and refuse therefrom, and repair any damage caused by it or its contractors and
subcontractors use thereof.
8.4 No Parking or Standing. The Temporary Access Easement
granted herein is not intended to be, and shall not be construed as, an easement for
vehicular parking or standing.
9. Additional Agreements
9.1 Binding Effect. The non-exclusive easements granted herein,
and the rights and obligations set forth herein, shall run with the Martin & Bayley
Real Estate and the Waffle House Real Estate and be binding upon and inure to the
benefit of the respective parties and their respective transferees, successors and
assigns.
9.2. Authority of Signatories. The individuals executing this
Agreement represent that they are duly authorized to do soon behalf of the respective
parties hereto.
9.3 Severability of Provisions. If any provision of this Agreement or
portion thereof,or the application thereof to any person or circumstance, shall, to any
extent be held invalid, inoperative or unenforceable, the remainder of this
Agreement, or the application of such provision or portion thereof to any other
persons or circumstances, shall not be affected thereby; it shall not be deemed that
any such invalid provision affects the consideration for this Agreement; and each
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
9.4 Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Indiana.
9.5 Section Headings. The section headings in this Agreement are
for convenience only, shall in no way define or limit the scope or content of this
Agreement, and shall not be considered in any construction or interpretation of this
Agreement or any part hereof. -
9.6 No Partnership. Nothing in this Agreement shall be construed to
make Martin&Bayley and Waffle House partners or joint venturers or render either
Martin & Bayley or Waffle House liable for the debts or obligations of the other.
•
9.7 Entire Agreement. This Agreement constitutes the sole and
entire agreement hereof with respect to the subject matter hereof and supersedes all
prior and contemporaneous oral or written representation or agreement by either
party hereto respecting the subject matter hereof.
9.8 Amendments. This Agreement may only be amended, modified
or terminated at any time by an instrument in writing executed and acknowledged
by all parties who are then-owners of the Martin&Bayley Real Estate and the Waffle
House Real Estate. This Agreement shall not be otherwise amended, modified or
terminated.
9.9 Construction and Interpretation. This Agreement shall be
interpreted and construed in an evenhanded manner among Martin & Bayley and
Waffle House and to give this Agreement and its terms their fair meaning. If and
when the language or wording of this Agreement is deemed to be ambiguous or
otherwise unclear, the issue shall be resolved in the manner most consistent with the
relevant provisions of this Agreement without regard to authorship or drafting of the
language or wording, without any presumption or interpretation or construction in
favor of any of said parties and without reference to the "reasonable expectations" of
any of said parties.
9.10 No Reversion of Title. Notwithstanding any other term or
condition contained herein to the contrary, no breach or alleged breach of any
provision of this Agreement shall under any circumstances cause a forfeiture,
impairment, divestiture, diminution, or reversion of title to, or any interest in the
easements created, established granted herein or any property interest arising
hereunder.
o
9.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original but all of which being
deemed to be one and the same agreement.
9.12 Business Days. In the event that any deadline for the
performance of any action hereunder falls on a Saturday, Sunday or government
holiday in the State of Indiana, then such deadline shall automatically be extended
until the end of the next day that is not a Saturday, Sunday or government holiday.
10. Notices. Any notice, report, invoice or demand required, permitted or
desired to be given under this Agreement shall be in writing and shall be deemed to
have been sufficiently and effectively given or served for all purposes on the third
(3rd)business day following the date of deposit thereof in the United States registered
or certified mail with return receipt requested and postage prepaid, or on the date of
delivery if delivered by a nationally-recognized overnight courier service(e.g.,FedEx)
to the parties hereto at the addresses shown below or at such other address as the
respective parties may from time to time designate by like notice:ti
If to Martin&Bayley: 04_,/ 3 4 ' /�
/31/4 ��� 'a s4
C41 2-tz/
Attn: 1.04.r ToK-P
with a copy to:
If to Waffle House: Waffle House, Inc.
5986 Financial Drive
Norcross, GA 30071
Attn: Property Management.
In the event of a change in address of which no notice has been given pursuant
to this Section 10, any notice given in compliance with this Section shall still be
deemed valid. Moreover, a notice sent to the address of record with the County tax
office for the real estate shall be deemed sufficiently given under this Agreement if
sent by one of the means permitted hereby, so long as a copy is simultaneously sent
to the addresses provided in this Section 10.
WHEREFORE, This Agreement has been executed by the undersigned as the
duly authorized representatives of the Parties hereto, as of the date first set forth
above.
"Martin & Bayley"
Martin & Bayley, Inc.
By: (Seal)
4.(Ak'
Printed Name/Title
"Waffle House"
Waffle House,Inc.
By: (Seal)
Printed Name/Title
•
STATE OF 14.1f0.) )
) SS:
COUNTY OF LrW 4.4 ')
•
Before me, a Notary Public, in and for said County and State, personally
appeared Martin & Bayley, Inc., an Illinois corporation, by picj through its duly
authorized officer, -.wr Gji1 -do . p'V ,
, and acknowledges the execution of the foregoing t
Deed to be its free and voluntary act and deed for the uses and purposes expressed
therein.
WITNESS my hand and seal, this 7day of 2016.
My Commission Expires: Notary Public
4'/as/ io 9.1; M. qcks
Printed Name
Resident of e County, k-
"OFFICIAL SEAL"
ROBIN M.HICKS
Notary Public,State of Illinois
if
Commission Expires:4/2o/2018
i
WHEREFORE, This Agreement has been executed by the undersigned as the
duly authorized representatives of the Parties hereto, as of the date first set forth
above.
"Martin & Bayley"
Martin & Bayley, Inc.
By: (Seal)
Printed Name/Title
"Waffle House"
Waffle House, Inc.
By:-N (Seal)
S 1_out V ce TES .4 I
Printed Name/Title
STATE OF GQ a&,uA )
6w�A,(►� ) SS
COUNTY OF 'r)
Before me, a Notary Public, in and for said County and State, personally
appeared Waffle House, Inc., a Georgia corporation, by and through its duly
authorized officer, S moots
, and acknowledges the execution of the foregoing Deed to
be its free and voluntary act and deed for the uses and purposes expressed therein.
WITNESS my hand and seal, this to day of , 2016. •
My Commission Expires: Notary Public
f o - 6 - Zo i'9- el I
o witi �j/4/4 Printed Name
O O
�' O • Resident of rA L i 0 n) County,khY"6 4
God` 4 :Q
�dot •Ca
p�$�tiV THIS INSTRUMENT PREPARED BY:
/��'' j�: N 'Q Justin E. Endres, Attorney
YOUNG,LIND,ENDRES&KRAFT
126 W. Spring Street
New Albany, IN 47150
Ph: 812.945.2555
Fax: 812.948.6956
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.
By: Jusfin F E.hAra
*This Document has been prepared without the benefit of a title search.
I
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•
WA F FLE
H O U S E
"GOOD FOOD FAST"
P.O. Box 6450 • Norcross. Georgia 30091-6450
August 18, 2016 (770) 729-5700
Mr. Kevin Feder
Jeffersonville Stormwater Coordinator
500 Quartermaster Court
Jeffersonville, IN 47130
Dear Kevin:
Re: Commercial/Industrial Development Storm water Long-Term Operation and
Maintenance Agreement for new Waffle House restaurant located at 5415 Hwy 62
Jeffersonville, IN 47130
Enclosed you will find our"Storm water Long Term Operation and Maintenance
Agreement for our new site located in Jeffersonville, IN.
I did not find the Parcel ID number for our property; however, I did enclose the following
supporting documentation:
1. Recorded Warranty Deed
2. Recorded Mortgage Release
3. Recorded Easement Agreement between Martin&Bayley, Inc. and Waffle House Inc.
Could you please confirm receipt of the enclosed and acknowledge that these documents
meet your requirements.
I sincerely appreciate all of your consideration and time in helping us to secure our
permits for this new Waffle House project.
Thank you!
•
envy M. Mu
Real Estate Representative
Waffle House, Inc.
dennymuyres@wafflehouse.com
Cc: Andy Crouch City of Jeffersonville, IN
EXECUTIVE OFFICES • 5986 FINANCIAL DRIVE • NORCROSS, GEORGIA 30071
Vie # 441
r
FwUAUF1FULUE
HOUSE ®
"GOOD FOOD FAST"
P.O. Box 6450 • Norcross. Georgia 30091-6450
August 18, 2016 (770) 729-5700
Mr. Kevin Feder
Jeffersonville Stormwater Coordinator
500 Quartermaster Court
Jeffersonville, IN 47130
Dear Kevin:
Re: Commercial/Industrial Development Storm water Long-Term Operation and
Maintenance Agreement for new Waffle House restaurant located at 5415 Hwy 62
Jeffersonville, IN 47130
Enclosed you will find our"Storm water Long Term Operation and Maintenance
Agreement for our new site located in Jeffersonville, IN.
I did not find the Parcel ID number for our property; however, I did enclose the following
supporting documentation:
1. Recorded Warranty Deed
2. Recorded Mortgage Release
3. Recorded Easement Agreement between Martin& Bayley, Inc. and Waffle House Inc.
Could you please confirm receipt of the enclosed and acknowledge that these documents
meet your requirements.
I sincerely appreciate all of your consideration and time in helping us to secure our
permits for this new Waffle House project.
Thank you!
envy M. Mu
Real Estate Representative
Waffle House, Inc.
dennymuyres@wafflehouse.com
Cc: Andy Crouch City of Jeffersonville, IN
EXECUTIVE OFFICES • 5986 FINANCIAL DRIVE • NORCROSS, GEORGIA 30071