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HomeMy WebLinkAboutEasement Agreement - Rose Cataldo, Pokagon Band of Potawatomi Indians, Pokagon Gaming Authority, and Star 001, LLCEASEMENT AGREEMENT This Easement Agreement ("Agreement") is made effective the _rj- day of December, 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; THE CATALDO FAMILY IRREVOCABLE TRUST ("Cataldo"), a trust dated May 16, 20 f 9 and managed by Anna Maria Chaffee, who resides at 52873 Ash Road, Granger, Indiana 46530; 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 and Star proposes to install a ten inch (10") water main on the Cataldo Property; G. WHEREAS the Band Parties' twenty-four to thirty-six inch (24"-36") sanitary sewer and Star's ten inch (10") water main will require a permanent municipal utility easement on the Cataldo Property (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 twelve inch (12") water main Page 2 of 13 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. I. WHEREAS the Cataldo Property, as shown in Exhibit B attached hereto, includes an existing 30' sanitary sewer easement serving the Cataldo Property 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 sewertrunkline extension from 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 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: 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. "Water/Sewer Agreement" means the Water Service and Sewer Service Agreement dated March 22, 2016 entered into by the City, the Band, and PGA to extend City water services and sanitary sewer services to the Site for planned development. 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 Page 4 of 13 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. 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. The City or Star, including their independent contractors shall construct and install a twelve inch (12") water main serving the Cataldo Property 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 at the eastern property line, as shown in Exhibit B. (c) 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. (d) 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. (e) The City shall at its expense construct two laterals within the 30' Easement described in Exhibit A and Exhibit B to serve Lot 2 of the Cataldo Property. 6. Obligations and Understandings of Star and Cataldo. (a) Star, including their independent contractors, shall construct and install a ten inch (10") water main serving Lot 1 on the Cataldo Property from a connection to be made to an existing water main located within the existing thirty-foot (30') easement on the Site, which new water main shall cross underneath SR 23 and extend to Lot 1 on the Cataldo Property at the western property line, as shown in Exhibit B. Page 5 of 13 (b) Star understands that its installation of a ten -inch (10") watermain on Lot 1 of the Cataldo Property, the connection of the new watermain to the existing watermain on the Site, and other improvements and additions to the infrastructure on the Site within the existing easement will require a ten -foot (10') extension on the width of the existing easement on the Site in order to provide access for maintenance activities. The proposed ten -foot (10') easement extension is illustrated on Exhibit B. Star understands and agrees that it is responsible for preparing and filing the application and supporting documents required to obtain federal approval of the easement extension on the Site pursuant to 25 C.F.R. Part 169 and for all related costs, The City and the Band shall assist Star as needed in its acquisition of the easement extension. (c) 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. (d) 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. (e) 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. (f) 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 infrastructure on the Cataldo Property. (g) Cataldo and Star understand and agree that any future development of the Cataldo Property that requires an increase in water service may require a Page 6 of 13 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. Force Majeure. 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. 8. 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. 9. Governing. 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. 10. Legal Costs. The parties agree and stipulate that each party shall bear its own costs, expenses and attorneys' fees in relation to this Agreement. 11. 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 Page 7 of 13 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 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 Cataldo: Page 8 of 13 Anna Maria Chaffee 52873 Ash Road Granger, IN 46530 If to Star: Ronak Patel 6101 Melton Road Portage, IN 46368 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) Severability. 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 CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS 0w163��PZFN. Gary A. Gilot, President Elizabeth A. Maradik, Member Jordan V. Gathers, Member Joseph R. Molnar, Member ATTEST: zo,#tda G((an* Linda M. Martin, Clerk Page 11 of 13 Pokagon Gaming Authority, POKAGON GAMING AUTHORITY BOARD O DIRECTORS Matthew Wesaw, President/CEO Pokagon Band of Potawatomi Indians POKAGON BAND TRIBAL COUNCIL Dbatth�w, -rTibM-C-othcil Chan .. K y tibal Couneil ecretary Page 12 of 13 Cataldo, AUUO Anna Maria Chatfee, Trustee of t ATALDO FAMILY IRREVOCABLE TRUST Star 001, LLC, Ronak Patel, Manager Page 13 of 13 Exhibit A Description of the Easement 30' WIDE PERMANENT SEWER EASEMENT NEW SEWER SERVICE CONNECTION TO PUBLIC SANITARY SEWER EXISTING 1 1 STORM WATER MANAGEMENT EASEMENT 1 1 1 I LOT 1 CATALDO 018-9012-031001 EXISTING SANITARY LATERAL, 8" TO BE REPLACED BY PROPOSED SANITARY SEWER, 24" - 30" 2 EA - PROPOSED SANITARY SEWER SERVICE WYE TO LOT 2 20' WIDE TEMPORARY — CONSTRUCTION ACCESS LOT 2 CATALDO 018-9012-0310 EXISTING 30' SANITARY SEWER EASEMENT FOR LOTS 1 & 2 EXISTING 40' COMMON ACCESS / V EASEMENT FOR LOTS 1 & 2 EXISTING 15' UTILITY EASEMENT PROPOSED WATER MAIN, 10" PROPOSED SANITARY SEWER, 24" - 36" LEGEND PROPOSED SANITARY SEWER SANITARY LATERAL STORM SEWER WATER MAIN EASEMENT LINE/GRADING PERMIT CNWIGHTMAN PROJECT NAME: it's all about people UTILITY EASEMENT SKETCH 190447 30' MUNICIPAL SEWER EASEMENT 20' TEMPORARY CONSTRUCTION ACCESS RELEASE OF EXISTING 30' SANITARY SEWER EASEMENT FOR LOTS 1 & 2 BY CATALDO 0 1 inch = 150 ft. EXHIBIT A NOVEMBER 2020 Exhibit B Graphic Description of Cataldo Property Lot 1 & Lot 2 the Existing Easement, and the Easement to be Granted 13 LEGEND EXISTING PROPOSED FORCEMAIN SANITARY SEWER SANITARY LATERAL STORM SEWER WATER MAIN EASEMENT LINE/GRADING PERMIT PROPERTY LINE RIGHT-OF-WAY LINE RELEASE OF EXISTING 30' SANITARY SEWER EASEMENT FOR LOTS 1&2 BY CATALDO EXISTING 30' UTILITY EASEMENT PROPOSED ADDITIONAL 10' EASEMENT PROPOSED 30' UTILITY EASEMENT PROPOSED 20' TEMPORARY CONSTRUCTION ACCESS PROPOSED SANITARY SEWER, 24" - 36" 0 1 inch = 150 ft. EXISTING 30' ' UTILITY EASEMENT EXISTING LIFT STATION - I TO BE ABANDONED I EXISTING FORCE MAIN, 6" - TO E EXISTING SANITARY SEWER, 8" EXISTING WATERMAIN, 12" EXISTING 60' UTILITY EASEMENT �' F PROPOSED WATER MAIN, 10" EXTENSION TO 3323 PRAIRIE AVE EXISTING STORM SEWER CULVERT, 6' LOT 1 CATALDO 018-9012-031001 i FOUR WINDS CASINO EXISTING 40' COMMON ACCESS EASEMENT FOR LOTS 1 & 2 EXISTING 30' SANITARY SEWER EASEMENT FOR LOTS 1 & 2 PROPOSED 10' EASEMENT EXTENSION TO INCLUDE APPROX 1160 SQFT. BETWEEN EXISTING PROPERTY LINE TO EXISTING EASEMENT SEWER 15' OFFSET INSIDE EASEMENT WATERMAIN 5' OFFSET INSIDE EASEMENT EXISTING 30' UTILITY EASEMENT EXISTING STORM SEWER CULVERT, 6' EXISTING 15' UTILITY EASEMENT PROPOSED 20' TEMPORARY CONSTRUCTIO PROPOSED 30' UTILITY EASEMENT STORM WATER MANAGEMENT EASEMENT LOT 2 CATALDO 018-9012-0310 r RECONNECT EXISTING SANITARY SEWER SERVICE WYE PROPOSED SANITARY SEWER SERVICE WYE TO LOT 2 EXISTING SANITARY LATERAL, 8" 0 1 inch = 40 ft. mmm M% 40 41 / �� RENEWABLE ROAD/NEW E EXISTING SANITARY SEWER, 15" PROPOSED SANITARY SEWER, 24 - 36" PROPOSED SANITARY SEWER PRELIMINARY ALIGNMENT ALONG EXISTING 151, SEWER ALIGNMENT ACTUAL ALIGNMENT TO BE DETERMINED FOLLOWING DETAILED SURVEY COLLECTION RECONNECT TO PROPOSED 24" - 36" SANITARY SEWER CK�P►I�Ixi��lil�76��1�[e7 EXISTING LIFT STATION DETAIL A: EXISTING 30' UTILITY EASEMENT PROPOSED 10' EASEMENT EXTENSION CONNECT TO EXISTING 24" SANITARY SEWER EXISTING LIFT STATION - TO BE ABANDONED EXISTING FORCE MAIN TO BE ABANDONED CONNECTION TO EXISTING 12" WATERMAIN - WET TAP cl WIGHTMAN BENTON HARBOR 269.927.0100 KALAMAZOO 269.327.3532 ALLEGAN 269.673.8465 ROYAL OAK 248.791.1371 www.gowightman.com PROJECT NAME: FOUR WINDS CASINO PHASE II OFFSITE SEWER EXTENSION NOT FOR CONSTRUCTION REVISIONS P:\Bent,,H,,b,,\190447PGA FWSB Phase II\B) Drawings\B50 Aut,CAD\old\Easements Exhibit\190447 exhibit.dwg EXHIBIT B ]/21/2020 1:13'.08 PM THE REPRODUCTION, COPYING OR OTHER USE OF THIS DRAWING WITHOUT WRITTEN CONSENT IS PROHIBITED. © 2019 WIGHTMAN & ASSOCIATES, INC. DATE: JULU 2020 SCALE: 1" = 150' EXISTING AND PROPOSED EASEMENTS JOB No. 190447 EXHIBIT B Exhibit C Form of Easement Instrument 70 When recorded return a -� copy to: City Engineer, ACID City of South Bend, 227 W. Jefferson Blvd., 13' Floor, South Bend, IN NCO 46601 MUNICIPAL UTILITY EASEMENT 2020-40765 RECORDED AS PRESENTE � ON 22130/2020 08:32 Al9 !NARY BETH WISNIEWSIKI ST, JOSEPH COUNTY RECORDER PGS, 7 FEES: 25.00 THIS INDENTURE made this 1- day of , 20 2,09y and between The Cataldo Family Irrevocable Trust, a trust dated May 16, 2019 and managed by Anna Maria Chaffee, who resides at 52873 Ash Road, Granger, Indiana 46530, (hereinafter, "Grantor"), and the City of South Bend, by and through its Board of Public Works, (hereinafter, "Grantee"), whose address is 227 W. Jefferson Boulevard, 13 th Floor, County -City Building, 227 W. Jefferson Blvd., South Bend, Indiana 46601. Know all men by these presents that Grantor(s), Grantor(s) heirs, successors and assigns, for and in consideration of the sum of forty -thousand dollars ($40,000) and other good and valuable consideration, the receipt of which is hereby acknowledged, do hereby grant, sell and convey to Grantee, it's agents, employees, contractors, successors, assigns, and any person(s) authorized by Grantee, exclusive easement and right-of-way thirty feet (30') wide to place, construct, operate, control, maintain, reconstruct, relocate, change the size of, repair and remove sewer mains, pipes and conduits, all necessary or incidental auxiliary or feeder service mains, pipes or conduits, lift stations, manholes and other facilities, appliances, apparatus and structures convenient or proper for the purpose of rendering sewage disposal services (the "Sewer Facilities"), and a temporary construction easement and right of way, twenty feet (20') wide, parallel to the first (together, "Easement Property"), for the purpose of facilitating construction and final grading along, under, through and across the following described property: See legal description attached hereto and made a part hereof as Exhibit "A". Tax I.D. #: 018-9012-0310; 71-08-22-152-012.000-026 Access to the Easement Property over the adjoining lands of the Grantor, where necessary, is hereby granted to the Grantee; provided however, that wherever the Sewer Facilities are accessible from an adjoining public street or highway, Grantee's access shall be from such street or highway. Grantee shall be responsible for repairing any damage caused by Grantee to Grantor's adjoining land. Upon completion of the Grantee's work, as indicated by seeding of the finished grade, the temporary easement will be released and extinguished with no further restriction upon the Grantor within the temporary easement. Grantor shall have the right to fully use and enjoy the Easement Property, except for such use as may impair, impede or unreasonably interfere with the exercise by Grantee of the rights granted herein. Grantor shall not construct or permit to be constructed any house, structure, or obstruction (other than ground cover or pavement for driveway and parking purposes) on or over the Sewer Facilities, or that would interfere with the construction, maintenance or operation of any part of the Sewer Facilities. Grantor shall not plant, or allow to grow any trees, shrubbery or similar growths directly over or within ten (10) feet horizontal distance from the dripline of the planting to sanitary sewer mains, laterals, building sewers, or manholes, and Grantor agrees to remove, at Grantors' cost, any buildings, structure or obstruction subsequently placed by Grantor within the permanent easement. Further, Grantor agrees not to change or permit the change of the grade of earth covering the Sewer Facilities. Grantee shall have the right to cut, trim, or remove any and all trees, shrubs, underbrush, bushes, saplings, ground cover, lawns, gardens, landscaping, irrigation systems or other similar vegetation, growth or structures, now or hereafter existing or growing upon or extending over the Easement Property, insofar as may be reasonably necessary utilizing due care, in the exercise by the Grantee of any and all rights and authorities herein and hereby granted to Grantee. The exercise of this right by the Grantee, or any other rights herein granted to Grantee, shall not establish in the Grantor any right or claim for damages to such trees, shrubs, underbrush, bushes, saplings, ground cover, lawns, gardens, landscaping, irrigation systems or other similar vegetation, growth or structures. Any damage to any private gravel or unpaved drives, drainage pipe or tile, or fences of the Grantor (but exclusive of trees, shrubs, underbrush, bushes, saplings, ground cover, lawns, gardens, landscaping, irrigation systems, or other similar vegetation, growth or structures and exclusive of asphalt or concrete pavement for sidewalk, access path, driveway or parking purposes) caused by the construction, operation, maintenance or repair of the Sewer Facilities shall be repaired or replaced by the Grantee; provided, however, that with respect to damaged lawns, Grantee agrees to provide initial reseeding of grass for such damaged areas. The easement rights and privileges granted herein are exclusive and the Grantor covenants that it will not hereafter convey any other easement or conflicting right within the area covered by this grant. To the extent the easement rights granted herein cross, intersect, or coexist with an existing easement of record, the easement granted herein shall not be exclusive with respect to that portion of such prior existing easement with which the easement granted herein crosses, intersects, or coexists. Notwithstanding the exclusivity of the easement herein granted, all storm drainage facilities and utility pipes or conduits for other utility services with five (5) feet minimum vertical clearance from the Sewer Facilities may intersect the sewer easement granted herein at a ninety (90) degree angle plus or minus fifteen (15) degrees at any point except at locations within twenty (20) linear feet from a sanitary manhole structure, and all streets, roads or sidewalks may intersect the sewer easement granted herein at a ninety (90) degree angle plus or minus fifteen (15) degrees at any point except, as concerns sidewalks, at locations within one (1) linear foot from a sanitary manhole structure and, except as concerns streets or roads, at locations within five (5) linear feet from a sanitary manhole structure. Notwithstanding any other provisions of this Easement Agreement, Grantee shall have the absolute right at any time, and from time to time, to construct and install other main extensions or lateral main extensions and appurtenant facilities of any nature connecting to the Sewer Facilities. Said easement also includes the rights and privileges: (1) of ingress and egress for the employees, agents and representatives of Grantee, its successors, and assigns, to, from, and over the Real Estate, Grantee's facilities located in, under, upon and across the Real Estate, to do all acts and things requisite and necessary for the full enjoyment of the easement hereby granted. Grantor agrees that Grantee shall be entitled to and Grantor shall provide any and all easements necessary to allow the construction of and to provide for access to the Sewer Facilities for the purpose of connecting such additional extensions and facilities to the Sewer Facilities. Grantor understands and acknowledges that the Grantee is the operator of a municipal utility and municipality owned treatment works with operating rules and procedures in place by local ordinances with authority of state statutes. The sewer to be constructed will be part of the municipality owned works and subject to those rules and procedures. In keeping with the rules and procedures in place, or as they may be changed from time to time, the Grantee must review and approve any and all connections to the sewer, collecting the fees and charges required by the rules and procedures. Further, Grantor also understands and acknowledges that others with interest in property adjacent to the sewer easement, and/or successors and assigns of Grantor, or owners of property rights by subdivision and transfer of any or all the Grantor's property shall also be subject to the rules and procedures, fees and charges in place at the time of application to connect. Abutting property owners wishing to connect to the Sewer Facilities shall have the right to enter the Real Estate from the abutting property for the purpose of connecting when permitted by Grantee. Grantee shall have full right and authority to assign or convey the easement hereby granted or any part thereof to another sewer utility or a successor in interest, but shall have no right to assign or convey the easement hereby granted or any part thereof to another utility not engaged in providing sewer service. The grants, covenants and stipulations herein provided shall extend to and be binding upon the respective heirs, successors and assigns of the parties. The undersigned executing this Easement on behalf of Grantor represent and certify that Grantor is the owner of the Real Estate, that the undersigned is duly authorized and fully empowered to execute and deliver this Easement, that Grantor has full legal capacity to convey the Easement described herein, and that all necessary action for the making of such conveyance by Grantor has been taken and done. The prior deed reference required by I.C. 32-23-2-5 for the real estate burdened by the easement herein granted is recorded in the office of the Recorder of Saint Joseph County, Indiana, as InstrumentNo(s). 11594. GRANTOR: Dl�t,cP.� eg—, Anna Maria Cha fee, Trustee The Cataldo Family Irrevocable Trust STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) {� Before me, a Notary Public in and for said County and State, personally appeared f we j@, Trustee for The Cataldo Family Irrevocable Trust (Grantor), who acknowledged the execution of the foregoing Municipal Utility Easement, for and on the trust's behalf, and who, having been duly sworn, stated that any representations therein contained are true. WITNESS MY HAND and Notarial Seal this L day of C , 202 My Commission Expires; s'Y l?j , a �,Q uht bl y S Notary Public - Written My County of Residence: q 'A &X�j Notary Public - Printed NOTARY PUBLIC: AFFIX SEAL EVA ENNIS Notary Public - Seat St Joseph County - State of Indiana Commission Number NP0715795 My Commission Expires Sep 13, 2026 PROOF NOTARIAL CERTIFICATE STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, a Notary Public in and for said State and County, personally appeared, the witness � . t ,n,ni �, _ , to the fo egoing ins rutnent, wh , bei duly sworn by me, did depose and say that they know Signatory(s) of the Grantor(s) to bet e individual(s) described�erein and who executed the foregoing instrument; that said witness the same; and said witness was present and saw —the Grantor(s) execute at the same time subscribed his/her name as a witness thereto. WITNESS MY HAND and Notarial Seal this 11— day of e f20�_b. My Commission Expires: E1(0I,_ tEw S Notary Public - Written My County of Residence: ?4� 9M4�� Notary Pub is - Printed NOTARY PUBLIC: AFFIX SEAL E=NP0715795 Notar St Joseph Coundiana Commission 5795My Commission3, 2026 This instrument wasprepared by Clara McDaniels, Assistant City Attorney, City of South Bend, Indiana. I affirm, under penalty of perjury, that I have taken reasonable care to redact each and every Social Security number from this document, unless required by law. Clara McDaniels Exhibit A Description of the Easement STATE OF INDIANA ST. JOSEPH COUNTY CITY OF SOUTH BEND SECTION 21, T37N, R2E 0o V ,coHCo mH0 zr Ifvo VICINITY MAP NOT TO SCALE 0 200 300 400 1 inch = 200 ft. EXHIBIT "A" BRUNO CATALDO & ROSA CATALDO 017-1012-0310 POINT DESCRIBED AS BEING 421.68' NORTH OF THE CENTERLINE OF STATE ROAD 23 N 89°18'40" E 768.80' S 89*18'40" W 738.52' 30' WIDE MUNICIPAL SEWER EASEMENT t 45,597 SQ. FT. EAST LINE, NORTHEAST 1/4, SECTION 21-37-2 ZORTHERLYRIW SOUTHEAST CORNER, NORTHEAST QUARTER, SECTION 21-37-2 THIS IS NOT A BOUNDARY SURVEY. 0 rn ui m CD 0 N ED O O w o_ N O In O O O O Co O En 30' WIDE MUNICIPAL SEWER EASEMENT THAT PART OF THE NORTHEAST QUARTER OF SECTION 21, TOWNSHIP 37 NORTH, RANGE 2 WEST, CITY OF SOUTH BEND, ST. JOSEPH COUNTY, INDIANA, DESCRIBED AS: BEGINNING AT A POINT ON THE EAST LINE OF THE NORTHEAST QUARTER OF SAID SECTION 21 THAT IS 835.90 FEET NORTH 00° 05' 20" WEST OF THE SOUTHEAST CORNER OF THE NORTHEAST QUARTER OF SAID SECTION 21; THENCE SOUTH 89' 18' 40" WEST 738.52 FEET; THENCE SOUTH 00" 37' 19" EAST 739.11 FEET TO.THE NORTHERLY RIGHT OF WAY LINE OF STATE ROAD 23 (PRAIRIE AVENUE); THENCE SOUTH 50° 15' 07" WEST ON SAID RIGHT OF WAY LINE 38.67 FEET; THENCE NORTH 00° 37' 19" WEST 793.48 FEET; THENCE NORTH 89" 18' 40" EAST 768.80 FEET TO SAID. EAST LINE, SAID POINT BEING PREVIOUSLY DESCRIBED AS BEING 421.68 FEET NORTH OF THE CENTERLINE OF STATE ROAD 23 (PRAIRIE AVENUE); THENCE SOUTH 00° 05' 20" EAST ON SAID EAST LINE 30.00 FEET TO THE POINT OF BEGINNING. BEARINGS BASED ON THE RECORDED PLAT OF CATALDO HOMESTEAD MINOR SUBDIVISION; _RECORDED IN DEED BOOK 2019, PAGE 11594, DATED MAY 21, 2019. - 1 �r � J • � ' '' � etil .�y1`a44` ` REVISION 1: CHANGED NAME OF EASEMENT BRIAN P. ILTEBERG DATE PER CITY'S REQUEST. MJF 02/11/2020 LS - 20800148 PROPOSED EASEMENT INDIANA STATE PLANE COORDINATE SYSTEM (EAST ZONE) U.S. SURVEY FEET CITY OF SOUTH BEND, INDIANA DRAWN BY: RFH CHECKED BY: LINE: WO: SCALE: 1" = 200' EXHIBIT "A" PREPARED BY: WIGHTMAN EASEMENT: MAP NO: W&A JOB#: 190447 2303 PIPESTONE ROAD DATE CREATED: 02/06/2020 1 OF 1 REVISIONS: BENTON HARBOR, MI 49022269-927-0100