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

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-3- attention by CCD, the City shall provide CCD with written notice in accordance with Section 11 below. 8. Maintenance. CCD will, at its sole expense, maintain and repair in good order and condition the Easement Parcel, including but not limited to, periodically inspecting the retaining wall to ensure that it has not destabilized due to the installation of the drainage pipe and promptly making such repairs to the City’s standards as is deemed necessary in the reasonable discretion of the City that result from the use of the drainage pipe. 9. Insurance. CCD shall at all applicable times maintain real property insurance covering CCD’s activities at the Easement Area, as well as a general liability policy providing CCD at least One Million Dollars ($1,000,000) in coverage. 10. Indemnification. CCD shall indemnify, defend, and hold the City, its departments, boards, officers, agents, and employees harmless from and against any and all claims resulting from (a) damage to any property or injury to any person caused by the sole negligence, gross negligence, or intentional acts or omissions of CCD, its members, agents, invitees, or employees and (b) the direct or indirect introduction of solids, floatable, or hazardous materials or bacteria to the Easement Parcel or the East Race Waterway by CCD, or its members, agents, invitees, or employees on the CCD Parcel. Notwithstanding the foregoing or anything in this Agreement to the contrary the City shall be solely liable for the actions of the City and any of its officials, employees or agents. In addition, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 11. Default. In the event of the breach of any term or condition of this Agreement by either Party which continues uncured for a period of thirty (30) days after written notice thereof by the other Party, the Party to whom performance is owed shall have the right to declare the other Party to be in default hereunder and pursue any and all available legal and equitable remedies. In the event that the breach involves CCD’s failure to maintain the Treatment System as set forth in Section 5, to test the stormwater as required in Section 6, or allow the City to inspect as required in Section 7 hereof, and, after thirty (30) days, CCD has not taken steps in good faith to cure the default as set forth in this Section 11, then the Parties agree that the City shall have the option to immediately terminate this easement and take any actions it deems necessary, in its sole discretion, to protect the Easement Parcel and the East Race Waterway. The prevailing Party in any litigation between the Parties arising from this Drainage Easement Agreement shall be entitled to recover costs and reasonable attorneys’ fees. 12. Reservation of Rights. The City reserves for itself the free use of the parcel in any manner not inconsistent with the terms of this Agreement. 13. Recording. This Agreement shall be duly recorded in the Office of the Recorder of St. Joseph County, Indiana, and all recording fees will be paid by CCD. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Indiana without reference to its conflict of laws principles. 15. Notices. All notices required or permitted to be given hereunder shall be effective when personally delivered to an executive officer of the Party or three (3) days after deposit in the United States Mail, correct postage prepaid for certified mailing,