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HomeMy WebLinkAboutTemporary Storm Sewer Access Agreement - Madison Street Development LLC - Commerce Center Project1316 COUNTY -CITY BUILDING 227 w.JEFFERSON BOULEVARD SO[ iTH BEND_ INDIANA 46601-1830 gg li4fiS CITY OF • 1, BOARD OF PUBLIC 1' April 23, 2019 David Matthews Madison Street Development LLC 401 E. Colfax Ave., Suite 277 South Bend, IN 46617 RE: Temporary Storm Sewer Access Agreement Dear Mr. Matthews: PHONE 574/235-9251 FAX 574/235-9171 The Board of Public Works, at its meeting held on April 23, 2019, approved the above referenced agreement for temporary use of the City storm sewer for the parking lot located at Madison Street near Niles Avenue for the Commerce Center Project. 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 GARY A. GILOT GENEVIEVE E. MILLER ELIZABETH A. MARADIK LAURA L. O'SULLIVAN THERESE J. DORAU 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 the volume of excess storm water that will be piped from the Catch Basin, provided, however, that any excess flow exceeding the capacity of the Catch Basin will overflow north into the East Madison Street Right -of -Way. The Company will maintain and use the Catch Basin so that it will perform at its maximum capacity at all times during the term of the License, such that no water will be piped from the Catch Basin to the Storm Sewer except as defined in the Plan. 3. The City hereby approves the Company's connection of the Catch Basin to the Storm Sewer retroactively to the Effective Date. The City acknowledges that the Company, at its sole expense, has constructed, installed, and will maintain any and all piping, erosion control infrastructure, or other elements necessary to drain storm water from the Catch Basin into the Storm Sewer under the conditions and in the manner stated in this Agreement. 4. The Company, at its sole expense and subject to the City Engineer's approval, will construct screening or other water quality management structures at appropriate locations to prevent any discharge of pollutants, debris, or other materials from entering the Storm Sewer. 5. Upon receiving the Strom Water Notice, it will be solely the Company's responsibility to determine and execute an alternative means of discharging all storm water arising out of the Company's construction of the Parking Lot on the Property, which will comply with all applicable laws and regulations. Notwithstanding the Company's foregoing responsibility, the time and manner of the Company's disconnection of the Catch Basin from the Storm Sewer is subject to prior written approval by the City Engineer (or her designee), and the City Engineer may withhold, condition, or delay such approval for any reason. The Company will pay all expenses related to its disconnection of the Catch Basin from the Storm Sewer, which may include abandoning the sewer, and the completion of such disconnection will be subject to inspection and approval by the City Engineer (or her designee). 6. The City reserves its right to charge the Company a reasonable fee for the Company's annual use of the City's storm sewer system as defined by present and future City ordinances and regulations. 7. The Company shall not cause or permit, knowingly or unknowingly, any hazardous material to be brought or remain upon, kept, used, discharged, leaked, or emitted at the Parking Lot or the Property. The Company understands and agrees that it will, at its own expense, observe and comply with all applicable statutes, laws, ordinances, requirements, orders, rules, and regulations of all governmental authorities in relation to its use of the Parking Lot and the Property. 8. To the extent that any portion of the Storm Sewer or any other City -owned property is disturbed or damaged in connection with the Company's connection to, use of, or disconnection from the Storm Sewer under the License, the Company, at its sole expense, will restore such property to the same or better condition that existed immediately prior to such disturbance or damage to the City's satisfaction, as determined in the City's sole discretion. 9. The Company agrees and undertakes to defend, indemnify, and hold harmless the City, and its agents, employees, successors, and assigns (the "Indemnified Parties"), from and against any liabilities, losses, costs, damages, or expenses, including attorneys' fees, which the Indemnified Parties may suffer or incur as a result of any claims or actions brought by any person or entity arising out of this Agreement or the License herein granted. If any action or proceeding is brought against an Indemnified Party in connection with this Agreement or the License herein granted, the Company will defend such action or proceeding at its own expense and will pay any judgment rendered therein. 10. This Agreement may not be assigned by the Company without the City's prior written consent, which the City may withhold for any reason or no reason. Any violation of this limitation shall terminate the License and all of the Company's rights under this Agreement. 11. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana and any disputes arising hereunder shall be brought in a court of competent jurisdiction in St. Joseph County, Indiana. lAdditionally, if, after negotiating in good faith for a reasonable time period to resolve a dispute arising under this Agreement, a party institutes an action to enforce any provision hereunder, the prevailing party shall be entitled to recover from the losing party the prevailing party's reasonable costs and expenses, including, but not limited to, attorneys' fees and court costs. 12. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them concerning such subject matter. 13. The undersigned representative of the Company represents that he has been duly V authorized to execute this Agreement on behalf of the Company. [Signature page follows.] IN WITNESS WHEREOF, the City and the Company, through their duly authorized representatives, have caused this Agreement to be executed as of the Effective Date. The parties have read and understand this Agreement and do, by their respective signatures, hereby agree to its terms. MADISON STREET DEVELOPMENT LLC David Matthews Its: Member Date:1 SOUTH BEND BOARD OF PUBLIC WORKS Gary A. 164, President Therese Jorate �� embers_.. Elizabeth A. Maradik, Member W Genevieve E. Miller, Member Laura L. O'Sullivan, Member ATTEST: ��...., ...�:... 1-111(1a Martin, C e&l Date: ° ''r°r EXHIBIT A Description of Property A part of Lot A of the First Replat of Lots 3 & 4 of Mill Race Subdivision recorded on July 7, 1994, as Document Number 9426575 in the Office of the Recorder of St. Joseph County, Indiana, which was formerly described as Lot Number (3) shown on the recorded Plat of Mill Race Subdivision, recorded December 3, 1985, as Document Number 8527030 in the Office of the Recorder of St. Joseph County, Indiana. [Parcel Key Number 018-5002-000401 ] EXHIBIT B Plan [See attached.] r+" jI i y a l b m I i %I J G I.I. I� i Yyxi �4 7H Gr« I €N w 7Js�h e d ,N � � q pAVu 4 r" M 4 W a Fig �innnl it dill - r"k"i A; 4� 4� p g8 qq i p ............................................... ............ ......_.... . mg 0 o 6 iT J 1X f� P l r r� f p 5C D Z •^K p N Z -Zi O , �n m o n - rn v Nr m O N O I f 4 >< 1 �I " �sy u mid �t q I , r dh ., r a n W 6 u d f fii P,h SY w a k i t'4 B p It n h b f � u F 71 �n � � 1 ti. o ......... roo :om��, m Z � 3� c z-4z 9 g O D ° 2r a.,y 4 m ma m s rn r �" cm �zo 0 a q h, r m w1g e1 �rz wj �11� G m C) G z �S &" Z \ :J \/ f� m� �\ \m r. § m m� ..... . . . ..... N6� yy,N t pp.."�WNYn vp Pr Yyy:�b 6�"b N u 0 f,w F It I v, r y II I lul V N II r� iN � U Fr 1� 6 w k w If 11 • Ni 3 (A o M �? z 3Aw n � �® r m z ..,... .,. .. _ ,. �., ..... .. „. °� Y o 'm f!A 'SI m g H 0 'li��h 1 7 ���+ I I �•�� Y a ��' � (n�6mf'� "� w N d' t� � �� F ��' d �m6; o� 0 0- v Z z3 v p" n k& mt 5r, — r z z 1 m 0 All MF� Fill a aas ,. F�6�0550 a'R wRo� 6R��66 65 u� y am c .. . . . ..... m I I C w o� as as waa ., q®® a ..I as a� .a -------------- M a e 21 SO br r 4 r a'h �. t " D � T ca 0 t pp I, zy z ...F A U�If � i N ,�PJp �' i ,A m 9 s a.eMH mH NIp r+ & q R r• a 3 Nm n O Z 4RP r ppyp� �� pA� ti z mv v - 1 C M 0 Q ^' „ ten tyi. q'�q��,, 'CCG�y11 "" � j�''jS � (.yY.A' `� {�. � • p96 % it k ? Z� Ftd Al �E��p�4.� BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 04/16/2019^ Department Public Name Zach Hurst Worksmmmmm BPW Date 04/23/2019 Phone Extension 3057 ir��i� umimiv�wur rvrimnmm�mr�mwmuiNu�ow.w.uumoioioioioiwo mnwts�rrvni�,rm u�un�muuuuv�uuuuuuuuuuuuuuuuuuuuuuuuumuumww jwu iuuuuuI ReVired Prior to Submittal to Board BPW Attorney ® Attorney Name Sandi Kennedy Dept. Attorney Attorney Name Purchasing El _Check the A°o ' 1 Item lc lc� [❑ Professional Services Agreement Contract [] Open Market Contract ❑ Amendment/Addendum ❑ Bid Opening ❑ Bid Award n Quote Opening ❑ Quote Award EI Proposal Opening ❑ C/O & PCA No. El Chg. Order, No. ❑ Traffic Control ® Other: Temporary Storm Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description re,d,lbr All Submissions Information Proposal jam, Special Purchase, QPA F] Req. to Advertise Reject Bids/Quotes PCA Resolution ❑ Ease./Encroach ❑ Title Sheet Matthews LLC ed b Yes ..If Yes'... Appro .................—' .......ym..Pu..........................._ —_ rchasing No MBE ❑ WBE Completed E-Verify Form Attached ❑ Nos Commerce Center _.............................................................................................................. w w ..................................m. 119-030 Agreement for temporary use of City storm sewer for parking lot located at Madison Street near Niles Avenue. _..._ww .�.............................._......................................................... ............................................. ....... For Cha.�.ne Orders Only .............e,_.. � ._.�. . Amount of Increase $ n. ❑ Decrease ($ Previous Amount $ Increase % Current Percent of Change: Decrease New Amount $ ��� � � � � �................................................. Increase _ _ ......................_ ................................................................................... _._................ % Total Percent of Change: Decrease .................................... _..�... — Time Extension Amount: New Completion Date: .................................................................................................................................................................. .....�.�.