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Home My WebLink AboutSewer and Water Main Extension Agreement - Extension for New Chocolate Factory and Museum – South Bend Chocolate Company1316 COUNTY -CITY BUILDING ��1 PHONE 574/ 235-9251 PEACE wig l 227 W. JEFFEasoN BOULEVARDFAX 574/ 235-9171 SOUTH BEND_ INDIANA 46601-1830 W 'e CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR BOARDLC WORKS December 19, 2019 Mr. Mark Tamer South Bend Chocolate Company 3300 W. Sample St. South Bend, IN 46619 RE: Sewer and Water Main Extension Agreement Dear Mr. Tamer: The Board of Public Works, at its meeting held on December 19, 2019, approved the above referenced agreement for the extension for the new Chocolate Factory and Museum in the amount of $446,148. 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 SEWER AND WATER MAIN EXTENSION AGREEMENT This Sewer and Water Main Extension Agreement ("Agreement") is made on the day of , 20_ by and between the SBCC Development Corporation ("Owner") and the City of South Bend, a municipal corporation existing under the laws of Indiana, acting by and through its Board of Public Works ("City") WHEREAS, Owner intends to develop 82 of acres located at the SW corner of US 20 and US 31 for a regional visitor destination that includes a chocolate factory and dinosaur museum; and WHEREAS, Owner plans to extend and make additions to existing water and sanitary sewer systems to serve said development as shown on the Exhibit A, attached and incorporated hereto (the "Dedicated Improvements"), and desires certain commitments from City; and WHEREAS, the engineering design for said Dedicated Improvements has been, or will be, accomplished by competent professional engineers registered and licensed in the State of Indiana; and NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, the adequacy of which the parties expressly acknowledge, Owner and the City agree as follows: 1. Design The Owner shall consult the City and allow the City Engineer or her designee input prior to designating the project engineer who shall be responsible for the engineering design and inspection in connection with the installation of the Dedicated Improvements (the "Project Engineer"). The Owner shall inspect the site during construction to ensure the Project Engineer's conformance to area planning requirements, adequacy of design, and conformance to the City's specifications and standards regarding location, size and depth of line, capacity and arrangement of lift stations, and quality of construction of the Dedicated Improvements. The Owner shall provide the plans with a City of South Bend cover sheet and specifications for the Dedicated Improvements along with a cost estimate to the City. The Owner shall also provide to the City a statement from the Project Engineer certifying that the materials and workmanship including pipes, bedding, thrust blocks, valves, fire hydrants, manholes, lift station equipment and other related materials and work meet the City's specifications and standards. Upon request of the City, the certification shall be substantiated by material affidavits from suppliers and by applicable test results for inflow/infiltration, exfiltration, deflection, pressure, leaks, bacteria, compaction and other tests required by the City. All construction, engineering and inspection cost in connection with the Dedicated Improvements shall be borne by the Owner. 2. Construction Inspection The Owner has provided the City with Exhibit A, which depicts drawings of the Dedicated Improvements, which the City acknowledges conforms to the City's standards. The Owner shall allow the City to inspect the Dedicated Improvements during construction to ensure conformance to the agreed standards set forth in Exhibit A, in particular with regard to area planning requirements, adequacy of design, and quality of construction. The Owner shall contact the City's Engineering Department at least two (2) business days in advance to arrange for the attendance of a City inspector at key milestones throughout work. Key milestones shall include but not limited to: lift station installation, mandrel deflection testing, sanitary sewer taps, and water main taps. The Owner agrees to perform any necessary adjustments as reasonably required by the City Engineer (or her designee) in her sole discretion, as a result of such inspections. The failure of Owner to comply with this Section shall be a material breach of this Agreement. 3. Permits It shall be Owner's sole responsibility and expense to obtain any and all permits associated with the construction and installation of the Dedicated Improvements. 4. Performance Bond Concurrently upon the execution of this Agreement or within seven (7) days thereof, Owner shall provide the City with a performance bond for an amount equal to one hundred twenty—five percent (125%) of the construction cost covering all work performed or to be performed pursuant to this Agreement. Owner's failure to provide the performance bond as prescribed herein shall cause this Agreement to be immediately terminated and of no effect, without the requirement of notice. Surety shall be posted in perpetuity until the acceptance of the Completion Affidavit, Maintenance Bond, and Waiver of Lien. 5. Maintenance Bond Within ten (10) days of City's acceptance of the Dedicated Improvements, Owner shall provide the City with a maintenance bond equal to ten percent (10%) of the construction cost covering all work performed or to be performed pursuant to this Agreement, and such bond shall remain in effect for three (3) years after dedication as described in Section 7 below. 6. Capital Contribution The City acknowledges that, pursuant to Resolution No. 3431, dated March 8, 2018, of the South Bend Redevelopment Commission, a sum not to exceed $500,000.00 (Five Hundred Thousand Dollars and 00/100) was allocated from tax increment finance revenues to pay a system development charge (the "SDC") for the Owner's access to the City's water and sanitary sewer systems. The parties acknowledge and accept the Estimate for System Development Charges set forth as Exhibit B, which the parties also acknowledge and agree is subject to change depending upon the City's receipt of new or additional information. Notwithstanding the foregoing, the SDC is subject to adjustment in accordance with applicable City ordinances. 7. Dedication Upon completion of the construction of the Dedicated Improvements substantially as depicted in Exhibit A, the Owner shall convey a 30' easement for water and sanitary main that exists through the site, along with a 30' easement for future water main extension to Pine Road, and dedicate to the City within such easement the Dedicated Improvements as public infrastructure. It is understood by the Owner that no dedication shall be accepted by the City until all required easements have been conveyed, accepted, and recorded by the City. The Owner shall use its best efforts to work with the City to ensure that the Dedicated Improvements are dedicated to the City in a timely manner. Additionally, prior to dedication, the following must be satisfied: a. All parts and labor must meet the standards and requirements stated in the design specifications as presented to and accepted by the City Engineering Department. b. Lien waivers must be received with regard to all workmanship and materials used in connection with these improvements. c. The Completion Affidavit must be furnished to Owner by the Board of Public Works. d. Owner must provide copies of test reports or cut sheets on all materials supplied. e. Owner must provide As -Built drawings in accordance with the City of South Bend Prevailing Specifications for Public Works, which may be found at https�//southbendin gc�v/rip-t c�i tc�_n /up1c�I�ds/2018/07/SBN-Spec-Stand=FINAL-062618- E, V-.2_B_P "`S.i.gtin. t..1..pd1 Owner's failure to comply with this Section 7 shall be a material breach of this Agreement. 8. Indemnification Owner agrees and undertakes to indemnify and hold the City, and its respective agents, employees, successors, and assigns, harmless from any liability, loss, costs, damages or expenses, including attorneys' fees, which the City may suffer or incur as a result of any claims or actions which may be brought by any person or entity arising out of this Agreement. If any action is brought against the City or its respective agents, employees, successors, or assigns, in connection with this Agreement, Owner agrees to defend such action or proceedings at its own expense and to pay any judgment rendered therein. 9. Insurance Owner, at Owner's sole expense, shall maintain during the term of this Agreement commercial general liability insurance covering the Company and the Activity in an amount not less than Five Million Dollars ($5,000,000.00) per occurrence. Owner agrees to include the City as an additional insured on any such policy and produce to the City a certificate of insurance evidencing the same. To the extent that the City is harmed as a result of the Owner's connection to the City's water and sanitary sewer systems, Owner hereby grants the City first priority on any proceeds received from the Owner's insurance. Notwithstanding anything in this Agreement to the contrary, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 10. Assignment This Agreement may not be assigned by the Owner without the express written consent of the City which such consent may be withheld for any reason. Any violation of this limitation shall terminate the City's obligation and forfeit the Owner's rights under this Agreement. 11. Governing Law This Agreement shall be construed and interpreted according to the laws of the State of Indiana. It is further agreed that all provisions of law now or hereafter in effect relating to water and sewer service by the City shall be applicable to this Agreement. 12. Entire Agreement This Agreement sets forth the entire agreement and understanding between the Owner and the City as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them. 13. Corporate Authority The person signing on behalf of the Owner represents that he/she has been duly authorized to execute this Agreement on behalf of said Owner. (Remainder of page intentionally left blank) IN WITNESS WHEREOF, the Owner and the City, through their duly authorized representatives, have caused this Agreement to be executed as of the date first written above. The parties have read and understand the foregoing terms of this Agreement and do, by their respective signatures, hereby agree to its terms. "OWNER" SBCC DEVELOPMENT CORPORATION By: �V, '04�1 Mark A. Tamer, President "CITY" CITY OF SOUTH BEND INDIANA BY AND THROUGH ITS BOARD OF PUBLIC WORKS Gary A. Gilot, President Therese ora , ember Elizabeth A. Maradik , Member ........................ .mm.w. Geneve E. Mii�le , ember aura L. O'Sullivan, Member ATTEST: Lin.da. M. Martin, Clerk EXHIBIT A DEDICATED IMPROVEMENTS Exhibit A '0 -PublicI Kistirig ' 0a Sonitory Sever Water Main Extension- -10 from Pine Road by City Public "'111�ater Main (12" dia) by Developer -Public Sanitary Sewer,-. by Developer Public Water Main— (10" dia.) by Developer c�u_blic Water M' i (12" dia) by Developer',,,, __30' Utility Easement P ic 30.0, to the City Sonitar;Sewer 30' Utility Easement--,, by Developer to the City 30. 0' - ------------ blic Sanitary Sewer by Developer Public iOater Main (8" dia) b Developer 60' Ingress, Egress, Utility, Maintenance Easement \-Public Water Main \ Public dia) ), (10" by Developer J00 30' Utility Easement to the City - Li MISSIND9NM DAIL: 112/13/2019 AC JOB #: 19 0824 SHI: 'I of I C." 111AI I A-1MIr. 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J"I . .......... NIL EXHIBIT B ESTIMATED SYSTEM DEVELOPMENT CHARGE Estimate for System Development Charges Estimate Provided On: 12/9/2019 Estimate Provided By: C. Brach South Bend Chocolate Factory Development South Bend, IN **Estimate is based on projected uses and calculations provided by owner/consultant** Values Unit T e Commercial # of Unit Tyees 82.62 acres Estimated Flow (qpd) for Commercial 1150 iDer acre Estimated Total Flow for South Bend Chocolate Facto Development 95013 gpd ERU calculation 306.49 ERU ERU rounddown 306 ERU Sewer SDC Calculation $1 145 per ERU $ 350,370.00 Water SDC Calculation 475 Qer ERU $ 145,350.00 Eslimalea Amount Due or South Bend Chocolate $ 495,720.00 Estimated 10% Discounted Total (Payment in full) $ 446,148.00 Per the Ordinance of the Common Council of the City of South Bend, System Development Charges are summarized below from Sections 17-79 and 17-80: Sec. 17-79. - System Development Charge for Wastewater inside and outside City limits. (1) For purposes of this section "ERU" shall be defined as an equivalent residential unit which means a single family residence. For purposes of customers that are not single family residences, one (1) ERU shall equal estimated wastewater flows of three hundred ten (310) gallons per day. No customer will be less than one (1) ERU. There will be no partial ERU's. The City shall round down to the closest applicable ERU calculation at all times. (2) Except as provided in Subsections (5) and (6) of this section, for every new connection to the South Bend Municipal Sewer Works, a system development charge of one thousand one hundred forty-five dollars ($1,145.00) shall be collected per ERU and additional portion thereof to be connected. All charges shall be billed by the City at the time the application for service is filed. (3) System development charges per ERU shall also be collected from existing customers undertaking activities producing a permanent increase in wastewater flow of greater than three hundred ten (310) gallons per day. This subsection shall not apply to an existing customer who has, by contract, purchased reserved capacity from the City so long as the customer's flows remain within the reserved capacity. A permanent increase shall be deemed to have occurred when the average flow rate for six (6) consecutive months exceeds the current flow rate by at least three hundred ten (310) gallons per day. (4) For multifamily structures (e.g., apartments, condominiums, mobile home communities), each individual unit shall be one (1) ERU. For all other types of structures, the ERU calculation shall be based upon the ratio of Average Daily Flow as computed pursuant to 327 IAC 3-6-1 1 in relationship to three hundred ten (310) gallons per day. For structures not listed in 327 IAC 3-6-1 1, the ERU shall be calculated as the relationship between the Average Daily Flow reported in the sewer capacity certification for the structure and three hundred then (310) gallons per day. (5) For customers with greater than twenty (20) ERUs as calculated pursuant to subsection (4) of this section, the ERU shall be adjusted based upon the Peaking Factor as computed herein. The Peaking Factor shall be calculated by dividing the Peak Daily Flow by the Average Daily Flow, both as reported in the sewer capacity certification. In no event will a Peaking Factor less than 2.0 be used for purposes of the adjustment described in this subsection. The Peaking Factor divided by 4.0 (the Peaking Factor for residential connections) will be multiplied by the number of ERUs for purposes of computing the system development charge owed by the customer. The City Board of Works may execute a contract with the customer authorizing an increase to the initial System Development Charge based upon actual usage data that is collected after connection. (6) Where a prospective customer seeks to connect a new structure on property which replaces a prior structure of a similar use what was located on the same property and which was connected to the South Bend Municipal Sewer Works, no system development charge will be collected. For instance, if the prior structure was a single family structure and the new structure is to be used as a multi -family structure, a system development charge, as contemplated herein this section, shall be charged. The Board of Public Works shall make the final determination of whether the new property structure is a similar use to the prior property structure for the purposes of this subsection. Sec. 17-80. - System Development Charge for Water inside and outside City limits. (1) For purposes of this section "ERU" shall be defined as an equivalent residential unit which means a single family residence. For purposes of customers that are not single family residences, one (1) ERU shall equal estimated water flows of three hundred ten (310) gallons per day. No customer will be less than one (1) ERU. There will be no partial ERU's. The City shall round down to the closest applicable ERU calculation at all times. (2) Except as provided in Subsections (5) and (6) of this section, for every new connection to the South Bend Municipal Water Works, a system development charge of five hundred dollars ($500.00) shall be collected per ERU and additional portion thereof to be connected. All charges shall be billed by the City at the time the application for service is filed. (3) System development charges per ERU shall also be collected from existing customers undertaking activities producing a permanent increase in water flow of greater than three hundred ten (310) gallons per day. This subsection shall not apply to an existing customer who has, by contract, purchased reserved capacity from the City so long as the customer's flows remain within the reserved capacity. A permanent increase shall be deemed to have occurred when the average flow rate for six (6) consecutive months exceeds the current flow rate by at least three hundred ten (310) gallons per day. (4) For multifamily structures (e.g., apartments, condominiums, mobile home communities), each individual unit shall be one (1) ERU. For all other types of structures, the ERU calculation shall be based upon the ratio of Average Daily Flow as computed pursuant to 327 AC 3-6-1 1 in relationship to three hundred ten (310) gallons per day. For structures not listed in 327 IAC 3-6-1 1, the ERU shall be calculated as the relationship between the Average Daily Flow reported in the water ropanity nertification for the structure and three hundred ten (310) gallons per day, (5) For customers with greater than twenty (20) ERUs as calculated pursuant to subsection (4) of this section, the ERU shall be adjusted based upon the Peaking Factor as computed herein. The Peaking Factor shall be calculated by dividing the Peak Daily Flow by the Average Daily Flow, both as reported in the water capacity certification. In no event will a Peaking Factor less than 2.0 be used for purposes of the adjustment described in this subsection. The Peaking Factor divided by 4.0 (the Peaking Factor for residential connections) will be multiplied by the number of ERUs for purposes of computing the system development charge owed by the customer. The City Board of Works may execute a contract with the customer authorizing an increase to the initial System Development Charge based upon actual usage data that is collected after connection. (6) Where a prospective customer seeks to connect a new structure on property which replaces a prior structure of a similar use what was located on the some property and which was connected to the South Bend Municipal Water Works, no system development charge will be collected. For instance, if the prior structure was a single family structure and the new structure is to be used as a multi -family structure, a system development charge, as contemplated herein this section, shall be charged. The Board of Public Works shall make the final determination of whether the new property structure is a similar use to the prior property structure for the purposes of this subsection. Sec. 17-85. - Methods of payment; prepayment with discount; installment plan. (a) The property owner may pay all charges in full prior to time the installation work is commenced. Prepayment of expenses in advance under this section shall entitle the owner to a ten (10) percent discount of the total charge. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date Name 12/16/19 Silveus Department Engineering BPW Date 12/19/19 Phone Extension 9083 WHORequired Prior to Submittal to Board Legal ❑ Attorney Name Clara McDaniels Controller Controller review is required for all Contracts $5,000.00 or more anc greater than one year in length per the City Purchasing Policy Purchasing Michael Schmidt Check the Agreement Professional Services Bid Opening [❑ Quote Opening ❑ Change Order No, Ease/Encroach. 1G Other: aropriate Item Type El Contract ❑ Resolution ❑ Bid Award El Quote Award ❑C/O &PCANo. _ Traffic Control for All Submissions Proposal ❑ Req. to Advertise Information ❑ PCA Company or Vendor Name SBCC Development Corporation New Vendor ❑ Yes No ❑ If Yes, Approved by Purchasing MBE/WBE Contractor ❑ MBE ❑ WBE MBE/WBE Contractor Requested ❑ No ❑ Yes Name of Company Project Name South Bend Chocolate Factory and Museum Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Amount of ❑ DP18-046 River West Development Area Addendum ❑ Title Sheet 324-10!*046-4204 $446,148.00_....__....................................._w...�w_www ._.......................w�� .. w.................. Agreement for theextensionof public water and sewer main Outlines requirements for the construction of oublic water and sewer U Required Contractor's Certification Form Attached (Non - Collusion, Non -Discrimination. Non -Debarment, E-Verifv. Iran. etc. Increase $ Decrease $ Previous Amount $ Current Percent of Change: _..._. New Amount Total Percent of Change: Dispersal After Approval Copy Original 0 El