Temporary Storm Sewer Access Agreement - Madison Street Development LLC - Commerce Center Project

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TEMPORARY STORM SEWER ACCESS AGREEMENT This Temporary Storm Sewer Access Agreement (this "Agreement") is entered into as of April 9, 2019 (the "Execution Date") and made effective October 10, 2017 (the "Effective Date"), by the City of South Bend, Indiana, acting by and through its Board of Public Works (the "City") and Madison Street Development LLC, an Indiana limited liability company with its registered address at 401 E Colfax Ave Ste 277, South Bend, IN 46617 (the "Company"). WHEREAS, the Company owns certain real property located in the City, as more particularly described in attached :Exhibit A (the "Property"); and WHEREAS, the Company has constructed and is operating a parking lot upon the Property (the "Parking Lot") as reflected in the plan attached hereto as Exhibit B (the "Plan"); and WHEREAS, the Company's Plan includes certain infrastructure elements necessary for managing storm water runoff arising out of the Company's construction of the Parking Lot on the Property, including a storm water curb box storm inlet with catch basin (the "Catch Basin") and a storm water pipe connecting the Catch Basin located in the Parking Lot Catch Basin to the City's existing storm sewer infrastructure on Madison Street ("Storm Sewer"); and WHEREAS, the Company desires to obtain the City's temporary permission as of the Effective Date to direct excess storm water collected in the Catch Basin and Parking Lot into the City's Storm Sewer and prevent storm water from ponding behind the East Race retaining wall west of the Parking Lot; and WHEREAS, the City desires to grant such permission in accordance with the terms of this Agreement. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Company agree as follows: 1. The City hereby grants to the Company a temporary, revocable license for the limited purposes of connecting the Catch Basin to the City's existing storm sewer infrastructure on Madison Street in the vicinity of the Property (the "Storm Sewer") and directing excess storm water collected in the Catch Basin into the Storm Sewer via the pipe to be installed in accordance with the Plan (the "License"). The City Engineer (or her designee) may, at any time, require the Company to develop an alternative plan to handle storm water (the "Storm Water Notice"). The Company will then have fifteen (15) days to develop and submit a good faith plan to the City Engineer's office to handle storm water without using the City's Storm Sewer that meets the requirements of Section 5 below. After the City Engineer (or her designee) approves an alternative plan submitted by the Company the City can revoke and terminate the License at any time, with or without cause, upon thirty (30) days' written notice to the Company from the City Engineer (or her designee). 2. The City and the Company mutually acknowledge that, as of the Effective Date and the Execution Date of this Agreement, the Storm Sewer has adequate capacity to accommodate