Loading...
HomeMy WebLinkAboutEasement Agreement – Rose Cataldo, Pokagon Band of Potawatomi Indians, Pokagon Gaming Authority, and Star 001, LLC1316 COUNTY -CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS September 8, 2020 Ms. Rose M. Cataldo 22027 Liberty Hwy. South Bend, IN 46619 RE: Easement Agreement Dear Ms. Cataldo: PHONE 574/ 235-9251 FAx 574/ 235-9171 The Board of Public Works, at its meeting held on September 8, 2020, approved the above referenced agreement to jointly fund the easement acquisition from a private landowner at Prairie Ave. and U.S. 31 in the amount of $ 10,000. Enclosed please find the original of the agreement for your signature. Please sign and return the original agreement to si ly. , ......... flie e ..­ ...... Please retain a copy for your records. .................... )D ,...... .......... If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, s/Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DoRAu JORDAN V. GATHERS JOSEPH R. MOLNAR 1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS September 8, 2020 Mr. Matthew Wesaw Pokagon Band of Potawatomi Indians 58620 Sink Rd. Dowagiac, MI 49047 RE: Easement Agreement Dear Mr. Wesaw: PHONE 574/235-9251 FAx 574/ 235-9171 The Board of Public Works, at its meeting held on September 8, 2020, approved the above referenced agreement to jointly fund the easement acquisition from a private landowner at Prairie Ave. and U.S. 31 in the amount of $10,000. Enclosed please find the original of the agreement for your signature. Please sign and return the original agreement to iiie��slc 'Osotalibc��Idiri,u v. Please retain a copy for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, s/Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR 1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS September 8, 2020 Mr. Ronak Patel Star 001, LLC. 14612 Carrigan Ct. Granger, IN 46530 RE: Easement Agreement Dear Mr. Patel: PHONE 574/235-9251 FAx 574/ 235-9171 The Board of Public Works, at its meeting held on September 8, 2020, approved the above referenced agreement to jointly fund the easement acquisition from a private landowner at Prairie Ave. and U.S. 31 in the amount of $10,000. Enclosed please find the original of the agreement for your signature. Please sign and return the original agreement to iiie��slc 'Osotalibc��Idiri,u v. Please retain a copy for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, s/Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR EASEMENT AGREEMENT This Easement Agreement ("Agreement") is made effective the 28' day of July 2020 by and between the following parties: CITY OF SOUTH BEND, INDIANA, by and through its Board of Public Works (the "City"), a municipal corporation existing under the laws of Indiana with offices located at 227 West Jefferson Boulevard, South Bend, Indiana 46601; ROSE CATALDO ("Cataldo" ), a natural person who resides at 22027 Liberty Highway, South Bend, Indiana 46619; POKAGON BAND OF POTAWATOMI INDIANS ("Band"), a sovereign, federally recognized Indian tribe with offices at 58620 Sink Road, Dowagiac, Michigan 49047. POKAGON GAMING AUTHORITY ("PGA"), an unincorporated instrumentality of the Band, with offices at 58620 Sink Road, Dowagiac, Michigan 49047; and STAR 001, LLC ("Star"), an Indiana limited liability company whose principal office is located at 14612 Carrigan Court, Granger, IN, 46530. RECITALS A. WHEREAS in 2009-2010 the Band acquired an assemblage of land comprised of approximately 166 acres located in the southeast quadrant of Prairie Avenue (State Road 23) and US-31 in South Bend, Indiana ("Site") for governmental and commercial development which, at that time, lacked water and sanitary sewer services; B. WHEREAS a Water Service and Sewer Service Agreement entered into on March 22, 2016 (hereinafter referred to as the "Water/Sewer Agreement") by the City, the Band and PGA (the Band and PGA collectively, the "Band Parties") provides that the Band Parties will install an Initial Phase water and sanitary sewer infrastructure to serve the Phase I Development of the Site and will install a Full Build -Out Phase water and sewer infrastructure to serve additional development on the Site if projected additional water and sewer demands reach the "Full Build -Out Threshold" criteria described in the Water/Sewer Agreement; C. WHEREAS on November 28, 2016 pursuant to a final agency determination by the Assistant Secretary — Indian Affairs for the U.S. Department of the Interior, the United States accepted the conveyance of the Site in trust for the Band; D. WHEREAS in October of 2019, PGA commenced construction on a Phase II Development of the Site which, when complete, is projected to trigger the Full Build - Out Threshold requiring the Full Build -Out Phase of water and sanitary sewer systems serving the Site; E. WHEREAS subsequent to entering into the Water/Sewer Agreement, the City determined that certain changes to the design for the Full Build -Out Phase water system described in the Water/Sewer Agreement were desirable to better align with the City's long-range planning and to bring service to a larger number of customers expected to reside southwest of the Site. The changes to the Full Build -Out Phase water system proposed by the City will significantly increase the scope and cost of the work required by the Agreement. As a result, the City has proposed to assume the sole responsibility for the design and construction of the Full Build -Out Phase for the water system in exchange for a financial contribution from the Band Parties in the amount of $500,000 as the Band Parties equitable share of the increased cost for the modified Full Build -Out Phase water system; F. WHEREAS as part of the development of the Full Build -Out Phase under the Water/Sewer Agreement, the Band Parties must install a twenty-four to thirty-six inch (24"-36") sanitary sewer on the Cataldo Property; G. WHEREAS Star proposes to install a ten inch (10") water main on the Cataldo Property; both the Band Parties'("24-36") sanitary sewer and Star's ("10" inch) water main will require a permanent municipal utility easement (the "Easement", as described in Exhibit A attached hereto); H. WHEREAS requirements for fire protection service for commercial development by Star located on Lot 1 of the Cataldo Property will require connection to an existing twelve inch (12") water main on the Site through a ten inch (10") water main extension to be installed within an existing public utility easement on the Site and across the Prairie Avenue Right -of -Way to the Easement on the Cataldo Property. Page 2 of 13 L WHEREAS the Cataldo Property, as shown in Exhibit B attached hereto, includes an existing 30' sanitary sewer easement serving the Cataldo Property (Lots 1 and 2) that is installed along the northern boundary; and J. WHEREAS the City, in coordination with PGA and Star, negotiated terms of agreement with Cataldo for a Grant of Easement to the City in order to allow for the Band Parties installation of a sanitary sewer trunkline extension from the Site south of Prairie Avenue to the Calvert Street Lift Station and for other related purposes as provided herein. K. WHEREAS the Band Parties intend to support an application by the City for a Grant of Easement across the Site that would increase the width of the existing public utility easement on the Site by ten feet (10') in order to provide improved access for the installation of the Full Build Out Phase on the Site and water and for periodic maintenance of that infrastructure. NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, the adequacy of which the parties expressly acknowledge, the City, Cataldo, PGA, and Star agree as follows: 1. Recitals True. The above recitals are true. 2. Definitions. "Cataldo Property" means a parcel of private land that is subdivided into Lot 1, which is owned by Star, and Lot 2, which is owned by Cataldo, and is located in the northeast quadrant of Prairie Avenue and US-31 and is commonly known as 22027 State Road 23, South Bend, Indiana 46614. "Full Build -Out Phase" means the Full Build -Out Phase of water and sanitary sewer infrastructure as described in the Water/Sewer Agreement. "Initial Phase" means the Initial Phase of water and sanitary sewer infrastructure as described in the Water/Sewer Agreement. "Phase I Development" means the housing project and Four Winds South Bend development on the Site. "Phase II Development" means a 23-story hotel tower with approximately 317 rooms and other amenities being developed on the Site. Page 3 of 13 "Site" means approximately 166 acres of land located in the southeast quadrant of Prairie Avenue (State Road 23) and US-31 in South Bend, Indiana held in trust status by the United States for the Band. e 3. Description of the Easement. (a) The Easement described in Exhibit A and Exhibit B is a thirty foot (30') wide permanent municipal utility easement. (b) The Easement shall be granted to the City by Cataldo through an instrument substantially identical in form and substance to the "Sanitary Sewer Easement Agreement" attached hereto as Exhibit C (Exhibit A to this Agreement is also Exhibit A to Exhibit Q. (c) Cataldo understands and agrees that the Easement shall include the right for the City to perform, or at the City's sole discretion to authorize the Band Parties or Star to perform, or for any of them to engage one or more independent contractors to perform work within the Easement as permitted under the terms of the Easement. 4. Payment to Cataldo for the Grant of Easement. (a) As full and final compensation for the Grant of Easement to the City, Cataldo shall be entitled a payment in the amount of FORTY THOUSAND DOLLARS ($40,000) (the "Payment"). (b) Financial responsibility for the Payment shall be allocated among the City, PGA, and Star as follows: (i) PGA shall be responsible for $25,000 of the Payment; the City shall be responsible for $10,000 of the Payment; and (iii) Star shall be responsible for $5,000 of the Payment. (c) PGA, the City, and Star shall coordinate their respective obligations regarding the Payment as follows: upon execution of this Agreement (i) the City shall make a payment to PGA in the amount of $10,000; and (ii) Star shall make a payment to PGA in the amount of $5,000. The payments to PGA shall be made by check made payable to "Four Winds Casino". Upon its receipt of the foregoing payments from the City and Star and upon receipt of written confirmation from the City that it has received the Grant of Easement from Cataldo, PGA shall make a single payment to Cataldo in the amount of $40,000 as full and final satisfaction of the Payment obligation under this Agreement. Page 4 of 13 5. Obligations and Understandings of the City and the Band Parties. (a) The City shall record the Grant of Easement within thirty (30) days of receiving it from Cataldo. (b) Following the City's receipt of the Grant of Easement from Cataldo and the recording the Grant of Easement by the City, the Band Parties, including their independent contractors, shall proceed with the construction and installation of the Full Build Out Phase sanitary sewer infrastructure on the Cataldo Property. (c) Star, including their independent contractors shall construct and install a twelve inch (10") water main serving the Cataldo Property Lot 1 from a connection to be made to an existing water main located within the existing 30' easement on the Site, which new water main shall cross underneath SR 23 and extend to the Cataldo Property Lot 1 at the eastern property line, as shown in Exhibit B (d) The Band Parties shall permit lateral stub connections within the existing easement on the Site to allow for any potential future connection to the City water and sanitary sewer systems. (e) The City and the Band Parties, including their independent contractors, shall minimize the need for construction access on the Cataldo Property and shall return areas disturbed back to substantially the same or better condition than prior to construction, including the 20' of temporary access described in paragraphs 6(b) and 6(c) and as shown on Exhibit B. 6. Obligations and Understandings of Cataldo and Star. (a) Cataldo and Star shall provide the City and the Band Parties, including their independent contractors, promptly upon execution of this Agreement with access to Lot 1 and Lot 2 of the Cataldo Property to conduct survey activities and soil borings as needed to design and plan construction and installation of the Full Build -Out Phase infrastructure. (b) Cataldo and Star shall provide the City and the Band Parties, including their independent contractors, as needed up to 20' of additional temporary access outside the Easement during construction of the Full Build -Out Phase along the east and south side of the Easement for construction mobilization and removal of the existing 8" lateral sewer located along the north side of the Cataldo Property, as shown in Exhibit B. Page 5 of 13 (c) Cataldo and Star shall also provide the City, including its independent contractors, periodic access to the Easement through the Cataldo Property as needed to perform maintenance and repair and for other purposes up to and including replacement of the sanitary sewer and water main. Access to the Easement may be provided through the existing 40' common access easement for Lots 1 & 2 shown on Exhibit B or through another suitable path through the Cataldo Property. In addition, Cataldo and Star shall provide the City, including its independent contractor, up to 20' of additional temporary access outside the Easement as needed for maintenance, repair and other work within the Easement along the east and south side of the Easement. (d) Cataldo and Star shall execute a release of the existing 30' sanitary sewer easement for Lot 1 and Lot 2 that exists along the northern boundary of Lot 2 and shall arrange for the recording of the release of easement within thirty (30) days following completion by the City and Band Parties of the Full Build -Out Phase sewer infrastructure on the Cataldo Property. (e) Cataldo and Star understand and agree that any future development of the Cataldo Property that requires an increase in water service may require a modification or extension of the water main and that any such extension or modification shall fully comply with applicable local and state laws and regulations and shall be subject to the approval of the City. 7. Obligations and Understandings of the City, Band Parties and Star. (a) Star, including their independent contractors shall construct and install a ten inch (10") water main serving the Cataldo Property Lot 1 from a connection to be made to an existing water main located within the existing 30' easement on the Site, which new water main shall cross underneath SR 23 and extend to the Cataldo Property Lot 1 at the eastern property line, as shown in Exhibit B. (b) Star understands a 10-inch watermain on the Site, while in an easement, will require an additional ten feet (10') of easement to allow for more access for future maintenance of the water main. The proposed ten feet (10') easement is illustrated on Exhibit B. Star understands and agrees that it is responsible for preparing the documents required and financial requirements of the Band in acquiring the easement. The City will assist Star in administering acquisition of the easement from the Band. 8. Reporting Requirements. The Band Parties shall promptly notify the parties if they become aware of legal or contractual problems that indicate that the Band Parties cannot meet their obligations under this Agreement to construct and install the Full Page 6 of 13 Build -Out Phase sanitary sewer by [INSERT PROJECTED COMPLETION DATE]. 9. Force Majel ure. The parties to this Agreement shall not be excused from the performance of any of their obligations under this Agreement except when such performance is prevented by causes which are beyond the reasonable control and without the fault of the party affected, such as acts of God, war, terrorism, civil unrest, labor shortages and acts of a government in its sovereign capacity. The party whose performance is delayed shall promptly notify the other party of any such cause for non-performance and, upon such notification, such party's performance shall be excused on a day-to-day basis only for the duration of the cause of non- performance and only to the extent that performance is actually prevented provided, however, that such party diligently pursues all reasonable efforts to eliminate the cause of non-performance. Where the performance of one party is excused, the performance of the other parties shall likewise be excused, and all parties shall promptly resume performance upon the cessation of the cause of non-performance. 10. Dispute Resolution. The parties 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. If the dispute cannot be resolved by non -binding mediation, the parties agree that the state and federal courts within Indiana shall have exclusive subject -matter jurisdiction over any dispute that arises out of this Agreement. 11. 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. 12. Legal Costs. The parties agree and stipulate that each party shall bear its own costs, expenses and attorneys' fees in relation to this Agreement. 13. 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 City: City of South Bend, Department of Public Works 1316 County -City Building Page 7 of 13 227 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 If to PGA: Pokagon Gaming Authority 58620 Sink Road Dowagiac, MI 49047 Attn: President/CEO with a copy to: Pokagon Band of Potawatomi Indians 58620 Sink Road Dowagiac, MI 49047 Attn: Office of General Counsel If to the Band: Pokagon Band of Potawatomi Indians 58620 Sink Road Dowagiac, MI 49047 Attn: Tribal Chairman with a copy to: Pokagon Band of Potawatomi Indians 58620 Sink Road Dowagiac, MI 49047 Attn: Office of General Counsel If to C ataldo : Page 8 of 13 Rose Cataldo 22027 Liberty Highway South Bend, Indiana 46619 If to Star: Ronak Patel 14612 Carrigan Court Granger, IN, 46530 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) Veverability. 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. (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. Page 9 of 13 (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 as stated in this Agreement or 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. THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK Page 10 of 13 City of South Bend BOARD OF PUBLIC WORKS Ego Gary A. Gilot, President Elizabeth A. Maradik, Member Therese J. Dorau, Member Jordan V. Gathers, Member Joseph R. Molnar, Member ATTEST: �1Illda 0' f smite Linda M. Martin, Clerk Page 11 of 13 Pokagon Gaming Authority, POKAGON GAMING AUTHORITY BOARD OF DIRECTORS Matthew Wesaw, President/CEO Kelly Curran, Board Secretary Pokagon Band of Potawatomi Indians POKAGON BAND TRIBAL COUNCIL Matthew Wesaw, Tribal Council Chairman Kelly Curran, Tribal Council Secretary Page 12 of 13 Cataldo, Rosa M. Cataldo Star 001, LLC, Ronak Patel, Owner Page 13 of 13 Exhibit A Legal Description of the Easement Exhibit B Graphic Description of Cataldo Property Lot 1 & Lot 2 the Existing Easement, and the Easement to be Granted Exhibit C Form of Easement Instrument BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date July 28, 2020 Name Clara McDaniels Department Legal BPW Date July 28, 2020 Phone Extension Ext. 5860 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer ❑ Officer Name BPW Attorney ® Attorney Name Clara McDaniels Dept. Attorney ® Attorney Name Clara McDaniels Purchasing ❑ Check the Appropriate Item Type — Re uired or All Submissions ❑ Professional Services Agreement ❑ Open Market Contract ❑ Bid Opening ❑ Quote Opening ❑ Proposal Opening ❑ Chg. Order, No. ❑ Other: ® Contract ❑ Proposal ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Award ❑ Reject Bids/Quotes ❑ C/O & PCA No. ❑ PCA ❑ Traffic Control ❑ Resolution ❑ Ease./Encroach Required Information Company or Vendor Name 4-Way Agreement: Pokagon Band, PGA, Star 001 and Rose Cataldo ❑ Yes ❑ If Yes, Approved by Purchasing New Vendor ® No MBE Yes MBE/WBE Contractor Completed E-Verify Form Attached ❑ ❑ No Project Name Pokagon Band of Potawatomi Indians Project Number NA Funding Source Account No. Amount $10,000 Terms of Contract NA Purpose/Description _Agreement to jointly fund easement acquisition from private landowner. For Change Orders Only Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount $ Increase % Current Percent of Change: Decrease ( %) New Amount $ Increase % Total Percent of Change: Decrease ( %) Time Extension Amount: New Combletion Date: