HomeMy WebLinkAboutAmendment No. 1 to Water & Sewer Service Agreement – Pokagon Band of Potawatomi Indians & Pokagon Gaming Authority1316 COUNTY -CITY BUILDING
227 W.JEFFERSON BOULEVARD
SOUTH BEND, INDIANA 46601-1830
CITY OF SOUTH BEND JAMES MUELLER, MAYOR
BOARD OF PUBLIC WORKS
December 17, 2020
Mr. Matthew Wesaw
Pokagon Band of Potawatomi Indians & Pokagon Gaming Authority
58620 Sink Rd.
Dowagiac, MI 49047
RE: Amendment No. 1 to Water Service and Sewer Service Agreement
Dear Mr. Wesaw:
PHoNE 574/235-9251
FAx 574/235-9171
The Board of Public Works, at its meeting held on December 17, 2020, approved the above
referenced amendment for the easement and payment terms and conditions related to the full
build -out phase of the Four Winds South Bend Casino in the amount of $500,000 as a
contribution from the Pokagon Band to the City for design and construction services.
Enclosed please find the original of the amendment for your signature. Please sign and return
the original amendment to lhensleygsouthbendin.gov. 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 JORDAN V. GATHERS JOSEPH R. MOLNAR
INTER -OFFICE MEMORANDUM
DEPARTMENT OF PUBLIC WORKS
DIVISION OF ENVIRONMENTAL SERVICES
TO: Members of the Board of Public Works
Clara McDaniels, Assistant City Attorney Public Works
Linda M. Martin, Clerk
FROM: Jacob M. Klosinski, P.E., Assistant City Engineer
SUBJECT: Amendment No. 1 to a Water Service and Sewer Service Agreement
between the City of South Bend, Indiana, Pokagon Band of Potawatomi
Indians and the Pokagon Gaming Authority
Agenda Request — Amendment
DATE: December 11, 2020
The City of South Bend, Indiana Department of Public Works, the Pokagon Band of Potawatomi
Indians and the Pokagon Gaming Authority desire the Board of Public Works approval of
Amendment No. 1 to the existing Water and Sewer Agreement between the subject parties as it
relates to the Full Build -Out Phase of the Four Winds South Bend site.
Please refer to the subject Amendment No. 1 which details the financial obligations and contribution
requirements of the City of South Bend, Indiana, the Pokagon Band of Potawatomi Indians, and the
Pokagon Gaming Authority as it relates to Amendment No. 1.
For questions regarding the subject agenda request, contact Jacob M. Klosinski (Ext. 9496) at
the Division of Engineering.
AMENDMENT NO. 1
to
WATER SERVICE AND SEWER SERVICE AGREEMENT
This Amendment modifies the Water Service and Sewer Service Agreement
made on the 22nd day of March, 2016 by and between the POKAGON BAND
OF POTAWATOMI INDIANS (the "Band"), the POKAGON GAMING
AUTHORITY, an unincorporated instrumentality of the Band ("PGA"), and
the CITY OF SOUTH BEND, a municipal corporation existing under the
laws of Indiana (the "City").
RECITALS
A. 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
approximately 166 acres located in the southeast quadrant of Prairie Avenue
(State Road 23) and US-31 in South Bend, Indiana ("Site") Site in trust for the
Band;
B. WHEREAS the 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 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;
D. WHEREAS the Water/Sewer Agreement reflects the City's desire
that the Full build -Out Phase water system extension and sewer system
extension be designed and constructed in a manner that will serve the City's
plans for expanding services to future customers and the Band Parties support
the City in its effort to fulfill its goal under the terms and conditions of the
Water/Sewer Agreement and this Amendment.
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.
F. WHEREAS changes to the Full Build -Out Phase water system
proposed by the City will significantly increase the scope and cost of the work
described in the Water/Sewer Agreement and, as a result, the City proposes 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, which amount represents the
Band Parties' equitable share of the increased cost for the design and
construction of the modified Full Build -Out Phase water system;
NOW, THEREFORE, in consideration of the obligations, terms and
conditions contained herein, the adequacy of which the parties expressly
acknowledge, the Band, PGA, and the City agree as follows:
1. Recitals true. The above recitals are true.
2. Amendments.
A. Exhibit A, Exhibit C-1, Exhibit C-2, and Exhibit C-3 to the Water/Sewer
Agreement are deleted and are replaced by Exhibit A, Exhibit C-1,
Exhibit C-2, and Exhibit C-3 attached hereto.
B. As contemplated in Paragraph 4(b)(1) of the Water/Sewer Agreement,
the Band Parties and the City agree that the design and construction
of the Full -Build -Out Phase water system and sewer system shall
commence prior to the date the Full Build -Out Threshold is met. The
Band Parties and the City further agree to work diligently and
cooperatively in good faith to complete the design and construction
work of the Full Build -Out Phase to ensure that it is fully operational
not later than the date of completion of the Phase II Development of the
Site.
C. Subparagraph 4(b)(1)(A) is amended in its entirety to state as follows:
(A). To complete the loop of the watermain that is located off the
Site; and.
D. Paragraph 5(b) is amended by deleting in its entirety the first sentence
and replacing it with the following new sentence: "Provide to the City
all design plans for the Initial Phase improvements to the water system
Page 2 of 7
and the sewer system and for the Full Build -Out Phase improvements
to the water system located on the Site and to the sewer system located
on the Site and off the Site.
E. Paragraph 5(f) is amended in its entirety to state as follows:
(f). Not later than the date of completion of the Phase II
Development of the Site, at the Band Parties' cost, design
and obtain all City, State or other regulatory permits
required by law, and construct the Full Build -Out Phase
improvements to the sewer system located off the Site. Such
improvements are limited to the following:
(1). Bore and jack to install a 24" diameter sewer trunkline
Extension from the Site Boundary north under Prairie
Avenue;
(2). Install a 36" diameter sewer trunkline Extension from
Prairie Avenue along an easement to be acquired and
continuing through an existing easement to the Calvert
Street Lift Station;
(3). During the 18-month build out, the discharge from the
lift station cannot exceed 225 gpm due to the existing
capacity of the Locust Road sewer main; and
F. Section 5 is amended by inserting the following new Paragraph (g) and
Paragraph (h) immediately after Paragraph (f) and by revising the
letters of all subsequent Paragraphs in Section 5 accordingly:
(g). Contribute $500,000 to the City to assist with the cost of
design and construction of the off -site portion of the Full
Build -Out Phase water system, which contribution shall be
made by the Band within fifteen (15) days from the date of
completion of the off -site portion of the Full Build -Out Phase
water system.
(h) The Band Parties shall not be responsible for payment to the
City of any connector charges, assessment fees, or other costs
for connecting to the Full Build -Out water system or sewer
system and, in exchange, the Band Parties shall forego their
right to receive a rebate of all amounts the City receives from
subsequent connector charges and assessment fees paid by
Page 3 of 7
other customers for non -mainline connections to a trunkline
sewer Extension or a water supply Extension that directly
extends from the Site but is located off the Site if such
extension was paid for entirely by the Band Parties.
G. Section 6 is amended by inserting at the beginning of Section 6 the
following new Paragraph (a), new Paragraph (b), and new Paragraph
(c) and by revising the letters of all subsequent Paragraphs in Section
6 accordingly:
(a). Prepare all design plans for the off -site portion of the Full
Build -Out Phase water system improvements. The design
plans will be prepared at the City's expense and shall be
approved by the applicable regulatory agencies, and other
governmental bodies prior to construction.
(b). Not later than the date of completion of the Phase II
Development of the Site, at the City's cost, design and obtain
all City, State or other regulatory permits required by law,
and construct the Full Build -Out Phase improvements to the
water system located off the Site. The City shall, at its cost,
be solely responsible for obtaining any easements that may
be needed to construct the off -Site portion of the water
system improvements and for completing all connections
between the off -Site and on -Site water system
improvements.
(c). If and when desired by the City at its discretion in order to
extend City water services to customers located south of US-
31, the City shall, it its sole cost, bore and jack to install a
12" diameter waterline Extension from the Site boundary
south under US-31.
H. Section 6 is amended by deleting in its entirety the last sentence of
Paragraph (e)(formerly Paragraph (b)) and replacing it with the
following new sentence: "The Band Parties and the City shall endeavor
in good faith to reach agreement regarding the selection of a qualified
firm to conduct the inspections and testing, the cost of which will be
borne by the party responsible in this Agreement for the design and
construction of the improvements being inspected and tested."
Page 4 of 7
I. Section 6 is amended by deleting in its entirety Paragraph 0)(formerly
Paragraph (h)).
3. Miscellaneous Provisions.
(a). No Other Amendments. Except as expressly amended or waived
hereby, all terms and conditions contained in the Water/Sewer
Agreement, as amended or waived by this Amendment No. 1, shall
remain unchanged and in full force and effect in accordance with their
respective terms. All references in the Water/Sewer Agreement to "this
Agreement" and "herein" and all references to the Agreement in any
exhibits or attachments to the Agreement and in any documents
executed in connection with the Agreement shall mean the Agreement
as hereby amended.
(b). Severability. If any provision, or any portion of any provision, of this
Amendment No. 1 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 Amendment and
shall not cause the remainder of this Amendment to be invalid or
unenforceable. If any provision, or any portion of any provision, of this
Amendment 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.
(c). Entire Agreement. This Amendment No.1 and the Water Service and
Sewer Service Agreement made by and between the parties on March
22, 2016 contain the entire understanding and agreement of the parties
hereto and supersede all other prior agreements and understandings,
written or oral between the parties. There are no oral agreements.
(d). Preparation of Agreement. This Amendment No. 1 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.
(e). Execution. This Amendment No. 1 may be executed in counterparts,
all of which taken together shall constitute one document.
(f). Authorization. Each person signing for an entity warrants that he or
she is duly authorized to do so.
Page 5 of 7
This Amendment No. 1 was executed as of December 17� 2020.
POKAGON BAND OF
POTAWATOMI INDIANS
C
an
Matthew Wesaw, Tribal Chairman
Kelly Curran, Tribal Secretary
Date:
POKAGON GAMING
AUTHORITY
RM
go
Matthew Wesaw, President/CEO
Kelly Curran, Board Secretary
Date:
Page 6 of 7
BOARD OF PUBLIC WORDS
Gary A. Gilot, President
Elizabeth A. Maradik, Member
Jordan V. Gathers, Member
Joseph R. Molnar, Member
ATTEST:
Linda M. Martin, Clerk
Date: December 17, 2020
Page 7 of 7
Exhibit A
Description of Layouts for the
Initial Phase and Full Build -Out Phase
Exhibit A is an engineer's drawing showing the layouts for the Initial Phase
and Full Build -Out Phase of the water system and sewer system serving the
Site.
8" SS PUBLIC
SANITARY
SEWER
12" W PUBLIC
-- WATER
MAIN
8" SS PRIVATE
---------SANITARY
SEWER
12" W PRIVATE
-
-------- - -- - WATER
MAIN
END OF FULL
BUILDOUT PHASE
J*
w
J
H
ry
WATER SERVICE AND
SEWER AGREEMENT
EXHIBIT A
DESCRIPTION OF LAYOUTS
ACCORDING TO FULL
BUILD -OUT
CALVERT RD.
CALVERT RD.
LIFT STATION
END OF FULL
BUILDOUT PHASE
SITE LIFT STATION -
TO BE ABANDONED
AFTER CONNECTION
TO CALVERT ROAD
LIFT STATION
co
co
co
co
m
(n c
H
U
a � Q
Q
w
J co
co
Q VICTORI, ST.
w FA I VIEW D
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w
�\Q
SITE
BOUNDARY 1U)
00 ao
1
cp 00
12" W
6" FM 8" SS
%l 2_ W
,C
� 1
s 1
1
WATER MAIN 1
SOUTHWEST �
OF THIS POINT 1
TO BE DESIGNED 1
AND INSTALLED G
BY THE CITY OF
SOUTH BEND 1 Sao/
1 `�7
1
1 SEE EXHIBIT C2 FOR
1
SYSTEM LIMITS
0
U)
Z)
U
O
J
Exhibit C-1
Description and Drawing of Public Portion
Subject to City's Ongoing Maintenance and Repair
Page 9 of 11
1
1
1
1
1
1
1
1
1
1
1
1
1
WATER SERVICE AND SEWER
AGREEMENT
EXHIBIT Cl
DESCRIPTION AND DRAWING
OF PUBLIC PORTION
SUBJECT TO CITY'S ONGOING
MAINTENANCE AND REPAIR
LEGEND
8" SS
_
_ PUBLIC SANITARY SEWER
12
-W _
PUBLIC WATER MAIN
- _ _8_SS _
_ _ _ PRIVATE SANITARY SEWER
1 2-W
- - - - - -
- - - - PRIVATE WATER MAIN
iv
�s SITE LIFT
2Q/� STATION
7
U)
M
END OF FULL
BUILDOUT PHASE
n
ry
W
J
ry
L
i
0
LU U)
J cfl
m M
Q
W
z
W
END OF FULL
BUILDOUT PHASE
CALVERT RD.
LIFT STATION
;ALVERT RD.
co
0 Q
oco
0-
VICTORIA ST.
F I VIEW D
SITE I j
BOUNDARY
_ i U)
�00
/` -- 12 W
55
c� 6" FM 8" SS
cp,2 -cy12 W
M 1, 6—
s 1
■ m = =ISM = = = =
1
1
1
1
1 GS
1 SEE EXHIBIT C2 J
1 FOR DELINEATION
OF PUBLIC AND
1 PRIVATE SYSTEM LIMITS
1 ALL PROPOSED WATER AND
SEWER FACILITIES SHALL BE
PUBLIC WITHIN PROPOSED
EASEMENTS AND RIGHT OF
WAY EXCEPT AS NOTED.
Exhibit C-2
Description and Drawing of Public Portion
Subject to City's Ongoing Maintenance and Repair
Page 10 of 11
LEGEND
8" SS PUBLIC
-- SANITARY
SEWER
12" W PUBLIC
--- WATER
MAIN
N
8" SS PRIVATE
------ SANITARY
SEWER
12" W PRIVATE
------- WATER
MAIN
I
` PUBLIC PRIVATE
PARKING GARAGE SANITARY SANITAR
WATER SERVICE AND SEWER
AGREEMENT
EXHIBIT C2
DESCRIPTION AND DRAWING
OF PUBLIC PORTION
SUBJECT TO CITY'S ONGOING
MAINTENANCE AND REPAIR
GAMING FACILITY
I
PUBLIC PRIVAT
WATER I WATER
UTILITY BUILDING
12" W
6" W
Exhibit C-3
Description and Drawing of Public Portion
Subject to City's Ongoing Maintenance and Repair
Page 11 of 11
CALVERT RD
WATER SERVICE AND SEWER
AGREEMENT
\ CALVERT RD.
LIFT STATION
um
/V
OFFSITE SEWER
EASEMENT
EXHIBIT C3
DESCRIPTION AND DRAWING
OF PUBLIC PORTION
SUBJECT TO CITY'S ONGOING
MAINTENANCE AND REPAIR
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date December 11, 2020
Department
Name Jacob M. Klosinski EnOneerim/Utilities
BPW Date December 17, 2020 Phone Extension Ext. 9496
Review and Approval Required Prior to Submittal to Board
Diversity Compliance
and Inclusion Officer
❑
Officer Name
Michael Patton
BPW Attorney
❑
Attorney Name
Clara McDaniels
Dept. Attorney
❑
Attorney Name
Clara McDaniels
Purchasing
❑
Michael Schmidt
Check the Appropriate
Item Type
— Re uired or All Submissions
❑ Professional Services Agreement
❑ Contract
❑ Proposal
❑ Open Market Contract
® Amendment/Addendum ❑ Special Purchase, QPA
❑ Bid Opening
❑ Bid Award
❑ Req. to Advertise ❑ Title Sheet
❑ Quote Opening
❑ Quote Award
❑ Reject Bids/Quotes
❑ Proposal Opening
❑ C/O & PCA No.
❑ PCA
❑ Chg. Order, No.
❑ Traffic Control
❑ Resolution
❑ Other:
❑Ease./Encroach
Required Information
Company or Vendor Name
New Vendor ❑ Yes❑ If Yes, Approved by Purchasing
❑ No
MBE/WBE Contractor ❑ MBE Completed E-Verify Form Attached ❑ Yes
❑ WBE ❑ No
Amendment No. 1 to Resolution No. 19-2016; Amendment to Water
Service and Sewer Service Agreement with Pokagon Band of Potawatomi
Project Name Indians (the "Band") and the Pokagon Gaming Authority (PGA)
Project Number
Funding Source
Account No.
Amount Refer to Easement Agreement regarding contributions and payment terms
Terms of Contract Refer to Easement Agreement regarding terms and conditions
Purpose/Description Public Works requests the approval of the subject Amendment No. 1 to a an
existing Water Service and Sewer Service Agreement which further defines
the obligations of the City, the Band and PGA under the water service and
sewer service agreement with respect to the Full Build -Out Phase of the Four
Amount of
Previous Amount
❑ Increase
❑ Decrease
Current Percent of Change
New Amount
Total Percent of Change:
For Change Orders
Increase %
Decrease ( %)
Increase