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HomeMy WebLinkAboutSidewalk Construction Agreement - Pokagon Band of Potawatomi Indians1316 COUNTY -CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND. INDIANA 46601-1830 CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR BOARD OF PUBLIC WORKS March 14, 2017 John Warren Pokagon Band of Potawatomi Indians 58620 Sink Road Dowagiac, MI 49047 RE: Sidewalk Construction Agreement Dear Mr. Warren: PRONE 574/235-9251 FAX 574/235-9171 The Board of Public Works, at its meeting held on March 14, 2017, approved the above referenced agreement to establish a procedure for future sidewalk installation at the future Pokagon Police Station. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure c: Michael Schmidt, Legal GARY A. GILOT SUZANNA M. FRITZBERG ELIZABETH A. MARADIK JAMES A. MUELLER THERESE J. DORAU SIDEWALIZ CONSTRUCTION AGREEMENT This Sidewalk Construction Agreement ("Agreement") is made effective the A!"', day of March, 2017 by and between the POKAGON BAND OF POTAWATOMI INDIANS (the "Band"), a sovereign, federally recognized Indian tribe, with offices at 58620 Sink Road, Dowagiac, Michigan 49047 and the CITY OF SOUTH BEND, a municipal corporation existing under the laws of Indiana (the "City"), with offices located at 227 West Jefferson Boulevard, South Bend, Indiana 46601. RECITALS A. WHEREAS, the Band, through a federally charted corporation wholly owned by the Band, holds fee title to real property with the City limits that is commonly known as 2906 Prairie Avenue (a copy of the recorded deed to the Property is attached hereto as Exhibit A). B. WHEREAS, the Band plans to construct a Band Police Department substation on the Property (the "Project"). C. WHEREAS, the Band sought from the City and the State, as appropriate, all local permits required by law to undertake the Project. D. WHEREAS, upon review of the plans submitted with the Band's application for a building permit for the Project, the City advised the Band that the Project should include a public sidewalk that will run east and west across the northern side of the Property adjacent to State Road 23. E. WHEREAS, the Property does not currently have a sidewalk, there is no sidewalk adjacent to the Property boundaries, and the nearest public sidewalk to the Property is located approximately one -quarter of a mile north on State Road 23 from the Property. F. WHEREAS, installation of a public sidewalk on the Property at this time will require the removal of approximately twenty-three mature trees on the Property. G. WHEREAS, the Band intends to revise the plan for the Project to include a public sidewalk on the Property with the understanding that the submission of the revised plan will allow the City to issue a building permit for the Project. H. WHEREAS, notwithstanding the submission of a revised plan for the Project, the Band seeks accommodation from the City under the terms of this Agreement for the City's forbearance regarding the timing for installation of a public sidewalk on the Property. I. WHEREAS, the Band represents that it is authorized to enter into this Agreement by a duly adopted resolution of the Band Tribal Council, a true copy of which is attached as Exhibit B. NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, the adequacy of which the parties expressly acknowledge, the Band and the City agree as follows: Recitals True. The above recitals are true. 2. Permits and Approvals for the Project. (a) The Band shall submit to the City at its earliest opportunity a revised plan for the Project that includes a public sidewalk across the northern side of the Property adjacent to State Road 23 and extending from the west boundary line to the east boundary line, which sidewalk design and other elements of the plan shall conform to all requirements under applicable law and regulation ("Revised Site Plan"). (b) The City shall act in a timely manner to review the Revised Site Plan and make a determination as to whether a construction permit can be issued for the Project or, if a permit cannot be issued, advise the Band of the additional revisions that are needed in order for a construction permit to be issued. Installation of a Sidewalk on the Property. (a) The installation of a public sidewalk on the Property shall not be required unless and until a public sidewalk is installed on either of the properties that are contiguous to the east or west Property boundaries ("Adjoining Properties"). (b) The absence of a public sidewalk on the Property prior to the installation of a public sidewalk on one of the Adjoining Properties shall not be the basis for a City regulatory authority to withhold any approval or permit that may be needed from the City during the course of construction of the Project or any final approval or permit, including a certificate of occupancy, at the conclusion of construction of the Project in order for the Band to occupy and use the Project for its intended purpose. (c) The Band shall bear the entire cost of installing a public sidewalk on the Property. Page 2 of 6 (d) Any public sidewalk installed on the Property by the Band shall be substantially in conformance to the Revised Site Plan, provided that where changed conditions warrant or necessitate further changes to the Revised Site Plan, any such changes shall be subject to the review and approval of the City, 4. Reporting Requirements. If the City believes that all of the conditions precedent to the Band's obligation to install a public sidewalk on the Property under this Agreement have been fulfilled, it shall provide written notice of such to the Band. 5. Dispute Resolution. The Band and the City shall use their best efforts to amicably and diligently resolve every controversy, question, claim, or dispute between them that arises out of this Agreement. In the event that the parties cannot fully resolve the dispute, the parties agree to use non -binding mediation by a mutually acceptable mediator to resolve the dispute. 6. Governing Law. This Agreement shall be deemed entered into in Indiana and shall be subject to the internal laws of the State of Indiana and any applicable federal law. Legal Costs. The parties agree and stipulate that each party shall bear its own costs, expenses and attorneys' fees in relation to this Agreement. 8. Miscellaneous Provisions. (a) Notice. Any notice required to be given pursuant to this Agreement shall be delivered to the appropriate party by Certified Mail Return Receipt Requested, or by overnight mail or courier service, to the following addresses: If to the Band: Polcagon Band of Potawatomi Indians 58620 Sink Road Dowagiac, MI 49047 Attn: Tribal Council Chairperson with a copy to: Polcagon Band of Potawatomi Indians 58620 Sink Road Dowagiac, MI 49047 Attn: Office of General Counsel If to the City: Page 3 of 6 City of South Bend, Department of Public Works 1316 County -City Building 227 W. Jefferson Boulevard South Bend, Indiana 46601 Attn: Director of Public Works with a copy to: City of South Bend, Legal Department 1200 County -City Building 227 W. Jefferson Boulevard South Bend, Indiana 46601 Attn: Corporation Counsel A party may designate a different address for notification under this subsection by notifying the other parties of such change in writing. (b) Further Actions. Each party agrees to execute all documents and to take all actions reasonably necessary to comply with the provisions of this Agreement and its intent. (c) Waivers. No failure or delay by a party to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement, or to exercise any right or remedy upon the breach thereof, shall constitute a waiver of any such breach or any subsequent breach of such covenant, agreement, term or condition. No covenant, agreement, term, or condition of this Agreement and no breach thereof shall be waived, altered or modified except by written instrument. (d) Captions. The captions for each section and subsection are intended for convenience only. (e) Severahiiity. If any provision, or any portion of any provision, of this Agreement is found to be invalid or unenforceable, such unenforceable provision, or unenforceable portion of such provision, shall be deemed severed from the remainder of this Agreement and shall not cause the remainder of this Agreement to be invalid or unenforceable. If any provision, or any portion of any provision, of this Agreement is deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law. Page 4 of 6 (f) Third Party Beneficiary. This Agreement is exclusively for the benefit of the parties hereto. It may not be enforced by any party other than the parties to this Agreement, and shall not give rise to liability to any third party. (g) Successors and Assigns. The benefits and obligations of this Agreement shall inure to and be binding upon the parties hereto and their respective successors and assigns. The parties cannot assign their rights or obligations under this Agreement except with the written consent of the other parties. (h) Modification. Any change to or modification of this Agreement must be in writing signed by the parties to this Agreement. (i) Entire Agreement. This Agreement contains the entire understanding and agreement of the parties hereto and supersedes all other prior agreements and understandings, written or oral between the parties. There are no oral agreements. (j) Preparation of Agreement. This Agreement was drafted and entered into after careful review and upon the advice of competent counsel; it shall not be construed more strongly for or against any party. (k) Execution. This Agreement may be executed in counterparts, all of which taken together shall constitute one document. (1) Authorization. Each person signing for an entity warrants that he or she is duly authorized to do so. Pokagon Band of Potawatomi Indians, COUNCIL �ohn P. Warren, Tribal Council Chairman eX / Marl arrish, Tribal Council Secretary City of South Bend CITY OF SOUTH BEND, INDIANA Page 5 of 6 BO�jA�RD OF PUB/LIC WORKS Gary Gilot, President James Mueller, Member -tdqj, J Elizabeth Maradik, Member Therese Doran, Member Suzanna Fritzberg, Member ATTEST: �m a Martin, Cle c Page 6 of 6 SIDEWALIZ CONSTRUCTION AGREEMENT Exhibit A Copy of the Recorded Deed to the Property IG'id dit:;y N-'?Pfl0 0 ',' lk.',f l 4S.a Y i7_(s !tud j iLLC WARRANTY DEED (IIIII I 1111111111111111111111111111111111111111111111 _ x t o 2 2 1 4 7 4 1522147 RECORDED AS PRESEIITED Oil 00/25/2015 11:34:36011 PHILLIP G. DOTSOII ST. JOSEPH COUNTY RECORDER PGS: 4 FEES: $22.0t THIS INDENTURE WITNESSETH, That Andrew A. O'Connell III (Grantor) CONVEY(S) AND WARRANT(S) to Chinodin, a federally chartered corporation (Grantee) for the sum of Ten Dollars ($10.00) and other valuable consideration, the receipt and suffleiency of which are hereby aclaiowledged, the following described real estate in St Joseph County, State of Indiana: SEE ATTACHED EXHIBIT "A" Property Adrh-ess: 2906 Prairie Ave., South Bend, IN 46614 Tax ID No.:71-08-22-152-007.000-026 Subject to current taxes not delinquent, and all easements, agreements and restrictions of record and all public rights of way. IN WITNESS WHEREOF, Grantor has executed this deed on the 2015. Andrew A. O'Connell III 13 dayof CfULY C PJ'fE f fits ;1)tI AM li1N 3y pru 1"llin 6 3: !tlRb'JC9C1V1 STATEOF INDIANA COUNTY OF 51 • 00-"Yf )SS, Before me, a Notary Public in and for said County and State, personally appeared Andrew A. O'Connell III who acknowledged the execution of the foregoing deed, Y, pips ny hand and notarial seat on to 'r�N" i IDWIRDW..ltARMJR., tbt r Reltite ui.. ° uI�;A�V,, 6 ftldonl of M. Moph Co, ,, I;N My Co;restics'nn G4114 s: AIgV'd4, 201 Ei e i day of 2015. Notary Public _ Resident of County My Commission expires: Prepared by: Edward W. Hardig, Jr, Attorney at Law, IN#19199-71/Ml# P60319, 401 W High St, Elkhart, IN 46516 ash Grantee's Address and Tax Billing Address: P.O. Box 180 58620 Sink Rd. Dowagiac, MI 49047 i affirm, under penalties for perjury, that 1 have taken reasonable care to redact each Social Security Timber in this docume t, unless required by law �).1�1�a kjas File No. 511503234 Exhibit "A" File No. 511503234 PART OF THE SOUTHWEST QUARTER OF THENORTHWEST QUARTER OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 2 EAST DESCRIBED AS BEGINNING AT A POINT 834.1 FEET EAST OF THE W EST QUARTER CORNER OF SAID SECTION 22, RUNNING THENCE NORTH 949.39 FEET TO THE CENTER LINE OF PRAIRIE AVENUE; THENCE NORTHEASTERLY 200 FEET ALONG SAID CENTER LINE OF PRAIRIE AVENUE; THENCE SOUTH 1052.11 FEET TO THE EAST AND WEST CENTER LINE OF SAID SECTION; THENCE WEST 169.8 FEET TO THE PLACE OF BEGINNING, EXCEPTING THEREFROM A TRACT OF LAND 40 FEET IN WIDTH, NORTH AND SOUTH, TAKEN OFF OF AND FROM THE ENTIRE SOUTH END FOR DONMOYER AVENUE; ALSO EXCEPTING THEREFROM A TRACT OF LAND 40 FEET AT RIGHT ANGLES WITH THE CENTER LINE OF PRAIRIE AVENUE, OF THE ALREADY ESTABLISHED HIGHWAY KNOWN AS PRAIRIE AVENUE, CONTAINING 3.90 ACRES, MORE OR LESS, LESS AND EXCEPTING THEREFROM THE FOLLOWING: A TRACT OF LAND 40 FEET IN WIDTH, NORTH AND SOUTH, TAKEN OFF OF AND FROM THE ENTIRE SOUTH END (FOR DONMOYER AVENUE) OF THE AFOREMENTIONED TRACT, NOW BEING DESCRIBED AS FOLLOWS: THAT PART OF ` FM NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 2 EAST, CITY OF SOUTH BEND, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA, DESCRIBED AS: COMMENCING AT A HARRISON MONUMENT MARI(ING THE LOCATION OF THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 22; THENCE NORTH 89020'04" EAST ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF SAID SECTION 22 A DISTANCE OF 834.81 FEET (DEEDED EAST 834.1 FEET) TO A FOUND IRON PIPE; THENCE NORTH 00003,03" WEST (DEEDED NORTH) 40.00 FEET TO A FOUND IRON WITH CAP NUMBER "22436" AND THE POINT OF BEGINNING OF THE LAND HEREIN DESCRIBED; THENCE CONTINUING NORTH 00-03-03" WEST (DEEDED NORTH) 862.11 FEET TO A FOUND "PINCH" PIPE ON THE SOUTHEASTERLY RIGHT OF WAY LINE OF PRAIRIE AVENUE (STATE ROAD 23); THENCE NORTH 58020'40" EAST ON SAID SOUTHEASTERLY RIGHT OF WAY LINE 199.36 FEET; THENCE SOUTH 00003'03" EAST (DEEDED SOUTH) 964.76 FEET TO A FOUND 5/8 INCH REBAR WITH CAP NUMBER "208000148'; THENCE SOUTH 89°20'04" WEST PARALLEL WITH AND 40.00 FEET NORTH OF SAID SOUTH LINE 169.80 FEET TO THE POINT OF BEGINNING, CONTAINING 3.560 ACRES MORE OR LESS, THE DESCRIPTION ABOVE TAKEN FROM A SURVEY BY WIGHTMAN & ASSOCIATES, INC. DATED JUNE 2, 2015 AS JOB NO. 150196. Exhibit B Resolution of the Tribal Council of the Pohagon Band of Potawatomi Indians Pokegnek Bodewadmik• Pokagon Band of Potawatomi f Tribal Council P.O. Box 180.58620 Sink Road • Dowagiac, MI 49047 • www.PokagonBand-nsn.gov (269) 782-6323 • (888) 376-9988 toll free • (269) 782-9625 fax I POKAGON BAND OF POTAWATOMI INDIANS TRIBAL COUNCIL the uonsiaution, trte Iudi uuuuw 1� uio �..Ltir.nn Rnnr!• nnrl 1AMPIPF 4 corporation wholly ownea oy the roKagun DdIJU, JJUJU0 J�U LILI to real property located within the geographic boundaries of the City of South Bend ("City') and is commonly known as 2906 Prairie Avenue (the "Property'); and WHEREAS: The Pokagon Band plans to construct a Pokagon Band Police Department substation on the Property (the "Project"); and WHEREAS: The Pokagon Band sought.from the City and the State of Indiana, as appropriate, all permits required by law to undertake A proud, compassionate people committed to strengthening oursovereign nation. A progressive community focused on culture and the most innovative opportunities for all of our citizens. the Project; and WHEREAS: Upon review of the plans submitted with the Pokagon Band's application for a building permit for the Project, the City advised the Band that the Project should include a public sidewalk that will run east and west across the northern side of the Property adjacent to State Road 23; and WHEREAS: The Property does not currently have a sidewalk, there is no sidewalk adjacent to the Property boundaries, and the nearest sidewalk to the Property is located_ approximately one -quarter of a mile away north on State Road 23 from the Property; and WHEREAS: Installation of a sidewalk on the Property at this time will require the removal of approximately 23 mature trees on the Property; and WHEREAS: The Band intends to revise the plan for the Project to include a public sidewalk on the Property with the understanding that the submission of the revised plan will allow the City to issue a building permit for the Project; and WHEREAS: Notwithstanding the submission of a revised plan for the Project, the; Pokagon Band seeks accommodation from the City under the terms of,a proposed Sidewalk Construction Agreement ("Sidewalk Construction Agreement") for the City's forbearance regarding the timing for installation of a public sidewalk on the Property (a copy of the Agreement is attached hereto); and WHEREAS: The Tribal Council has reviewed the Sidewalk Construction Agreement. NOW, THEREFORE, BE IT RESOLVED that the Tribal Council approves the Sidewalk Construction Agreement, a copy of which is attached hereto. AND BE IT FURTHER RESOLVED that the Tribal Council hereby authorizes the Tribal Council Chairman and Tribal Council Secretary to execute, on behalf of the Pokagon Band, the Sidewalk Construction Agreement. 1 CERTIFICATION We do hereby certify that the foregoing Resolution was presented and voted upon with a quorum present at a duly convened special meeting of the Tribal Council held on the 13'h day of March, 2017 by a vote of 9 in favor,0 opposed, 2 absent, and 0 abstaining. Joh Warren Ma/rk/H/P a r r h Tribal Council Chairman Tribal Council Secretary I I Date Name BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM 03/08/2017 Michael Schmidt Department Legal BPW Date 03/14/2017 Phone Extension Legal Attorney Name Controller review is required for all Contracts $5,000.00 or more Controller ❑ and greater than one year in length per the City Purchasing Policy Purchasing ❑ Professional Services Bid Opening Quote Opening Chg Order No. Ease./Encroach. 01➢ New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Contract ❑ Bid Award ❑ Quote Award ❑ C/O & PCA No. ❑ Traffic Control No MBE WBE dF walk Proposal ❑ Req. to Advertise PCA Resolution Claim If Yes, Approved by Purchasing Addendum ❑ Title Sheet ❑ Yes ❑ No ��7sblcs�rfocc urc dr a'- 4&re- POka5an Amount of " Increase ❑ Decrease $ Previous Amount $ Current Percent of Change: % New Amount Total Percent of Change: Time Extension: Dispersal After Approval Copy Original ❑ ❑ ❑ ❑