Drainage Easement Agreement - Encroachment Drain for Stormwater East Race – Commerce Center Development LLC

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INTER-OFFICE MEMORANDUM Department of Law City of South Bend 227 W Jefferson Blvd TO: Board of Public Works, Anne Fuchs, Clara McDaniels FROM: Sandra Kennedy, Corporation Counsel SUBJECT: Drainage Easement Agreement DATE: September 21, 2021 Members of the Board, Ms. Fuchs, and Ms. McDaniels: As you are aware, Commerce Center Development, LLC has erected a multi-story structure at LaSalle and the East Race Waterway. In constructing the building, the developer determined that the most cost-effective method of draining its stormwater was into the East Race Waterw ay. The City explored other options with the developer but agreed to the developer’s proposal after consultation with outside counsel specializing in environmental law focusing on waterways. The Drainage Easement Agreement reflects the suggestions of the City’s outside counsel, including maintenance of the water treatment unit and the quality of the water discharged into the East Race Waterway. To ensure that the City does not become responsible for the maintenance of the treatment unit and to ensure a responsible party is the holder of this easement, the easement is in gross, meaning that it does not run with the land, but is attached only to the parties executing the agreement. It is not transferable. The City will be able to re-negotiate this agreement with any subsequent purchaser of the property or not enter into another agreement, as it determines at such time. Further, the agreement may terminate after a notice and cure period (30 days) if the treatment unit is not being properly maintained. The contact person is the City’s MS4 Coordinator. We ask that the Board approve the Drainage Easement Agreement, which will be countersigned by Commerce Center Development and recorded by it. Thank you.