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HomeMy WebLinkAboutSewer & Water Service Agreement Fernwood at Cleveland Phase III & Title Sheet – Cleveland Wood Dev., Co., LLC  ELIZABETH A. MARADIK GARY A. GILOT JORDAN V. GATHERS JOSEPH R. MOLNAR 1316 COUNTY-CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/ 235-9251 FAX 574/ 235-9171 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS February 23, 2021 Mr. Bill Loudin Cleveland Woods Development Co., LLC 2010 West Ave. Mishawaka, IN 46545 bloudin@comcast.net RE: Sewer and Water Service Agreement for Cleveland Woods Development Dear Mr. Loudin: At its February 23, 2021 meeting, the Board of Public Works approved the above referenced agreement which outlines the terms for the public sewer and water main extension for the Fernwood Phase III project. Enclosed please find the original of the agreement for your signature. Please sign and return the original agreement to lhensley@southbendin.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/ Anne Fuchs Anne Fuchs, Clerk Enclosures AF/lh SEWER AND WATER SERVICE AGREEMENT This Sewer and Water Service Agreement (“Agreement”) is made on this ____ day of _____, 2021 by and between Cleveland Woods Development Co., L.L.C., an Indiana limited liability company with an address of 2010 Went Avenue, Mishawaka, IN 46545 (“Owner”), and the City of South Bend, an Indiana municipal corporation(“City”), acting by and through its Board of Public Works (“Board”). WHEREAS, Owner’s project site is located within Fernwood at Cleveland Subdivision Phase 2 and 3. WHEREAS, in connection with the needs of Owner’s project, Owner has extended, relocated, or made, or plans to extend, relocate, and make additions to existing water and sanitary sewer systems to serve said replat as shown on the Exhibit A, attached and incorporated hereto (the "Dedicated Improvements"), and desires certain commitments from City; and WHEREAS, the Dedicated Improvements that Owner plans to complete is further described in Exhibit B, attached and incorporated hereto (the "Engineer’s Estimate"), and WHEREAS, the Owner acknowledges that it has installed public water main and sanitary sewer in previous phases (Fernwood-Phase I and Fernwood-Phase II), which have not been dedicated to the City, but Owner desires to dedicate such improvements to the City along with the remaining work set forth as Fernwood-Phase III and outlined in Exhibit A; 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 23rd. February NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, and the above recitals which are incorporated into this Agreement, the adequacy of which the parties expressly acknowledge, Owner and the City agree as follows: 1.Recitals The parties hereto acknowledge and agree that the foregoing recitals are incorporated herein as a part of this Agreement. 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: mandrel deflection testing, sanitary sewer taps, and water main taps. The Owner agrees to perform any necessary adjustments as reasonably requested by the City to ensure the Dedicated Improvements are constructed in accordance with Exhibit A. 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 and to comply with all applicable laws. 4.Engineer’s Estimate The Owner has provided an Engineer’s Estimate (See Exhibit B, incorporated herein by reference and attachment) for the cost to construct the remaining portion of the water main portion of the Dedicated Improvements, including but not limited to, excavation, pipe materials, valves, hydrants, and all other appurtenant materials, supplies and equipment, permit fees, backfill and bedding, pavement, curbs, sidewalks, signs, and restoration of the areas within the proposed R.O.W. 5.Performance Bond Owner shall provide the City with a performance bond for an amount equal to one hundred twenty–five percent (125%) of the construction cost as set forth on Exhibit B, covering all work to be performed as described as Fernwood-Phase III in Exhibit A 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. The performance bond shall be provided concurrently with the execution of this Agreement and attached as Exhibit C. 6.Maintenance Bond Within ten (10) days of the 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 and to be performed pursuant to this Agreement as outlined in Exhibit A as Fernwood-Phase III, and such bond shall remain in effect for three (3) years after dedication as described in Section 8 below. 7.Term Except as otherwise provided herein, this Agreement shall continue for a period of sixteen (16) months from the Effective Date of this Agreement, or upon the issuance of the relevant occupancy permit(s), whichever occurs last. 8.Dedication Upon completion of the construction of the Dedicated Improvements substantially as depicted in Exhibit A, the Owner shall also convey an easement 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. It is also understood by Owner and the City that water main and sanitary sewer constructed in previous phases shall be dedicated to 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's 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 South Bend, Indiana 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.gov/wp-content/uploads/2020/05/Prevailing-Supplemental- Specifications.pdf Owner’s failure to comply with this Section 8 shall be a material breach of this Agreement. 9.System Development Charges Simultaneously with the execution of this Agreement, the Owner shall pay the City a sum of $16,038.00 (sixteen thousand, thirty-eight dollars and 00/100) for access to the City’s water and sewer sanitary systems set forth as Exhibit D. For purposes of this section 9 of the Agreement, an equivalent residential unit (“ERU”) shall mean a single-family residence. For purposes of customers that are not single-family residences, one ERU shall equal estimated wastewater and water flows of 310 gallons per day, respectively. No customer will be less than one ERU. For every new connection to the South Bend Municipal Sewer Works, a capital contribution of $1,145 shall be collected per ERU. For every new connection to the South Bend Municipal Water Works, a system development charge of four hundred seventy-five dollars ($475.00) shall be collected per ERU and additional portion thereof to be connected. All charges shall be paid to the City at the time the application for connection is filed. 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 3-6-11 in relationship to 310 gallons per day. For structures not listed in 327 IAC 3-6-11, the ERU shall be calculated as the relationship between the Average Daily Flow reported in the sewer capacity certification for the structure and 310 gallons per day. For customers with greater than 20 ERUs, 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 and water capacity certifications. In no event will a Peaking Factor less than 2.0 be used for purposes of the adjustment. 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 capital contribution owed by the customer. The City reserves the right to require an additional capital contribution should Owner’s flow rate exceed the predicted level. Such additional capital contribution will be based on the proportional share of Owner’s use of the City's water and/or sewer sanitary system. 10.Waiver of Remonstration Owner agrees to waive its right to remonstrate and hereby consent to annexation. Further, Owner agrees to execute a petition of annexation upon request by the City. 11.Indemnification In the event that Owner does not complete the Dedicated Improvements in accordance with Exhibit A, 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. 12.Insurance Owner, or the owner’s contractor, at Owner’s sole expense, shall maintain during the term of this Agreement, commercial general liability insurance covering the Owner and the Dedicated Improvements in an amount not less than Five Million Dollars ($5,000,000.00) per occurrence. Owner agrees to provide to the City a certificate of insurance evidencing such coverage within ten (10) days of the execution hereof. 13.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. 14.Material Breach In the event either party breaches any of the provisions set forth herein, the non-breaching party shall provide written notice of the breach to the breaching party. Upon receipt of the notice, the breaching party shall use its good faith efforts to cure the breach as soon as practical. In the event the breach is not cured within a reasonable amount of time, the non-breaching party may terminate this Agreement and pursue its legal and equitable remedies. . 15.Governing Law and Jurisdiction This Agreement shall be construed and interpreted according to the laws of the State of Indiana and shall be enforced in any court of competent jurisdiction in St. Joseph County, 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. 16.Severability Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 17. Waiver No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. The waiver will not be construed to be a waiver of any succeeding breach of any such provision, a waiver of the provision itself, or a waiver of any other provisions of this Agreement. No delay or omission on the part of either party to exercise or avail itself of any right, power, or privilege that it has or may have under this Agreement will operate as a waiver of any breach or default. 18.Time Time is of the essence of this Agreement. 19.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. 20. 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. IN WITNESS WHEREOF, the Owner and the City, through their duly authorized representatives, have caused this Agreement to be executed as of the day and year 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. (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" "CITY" CLEVELAND WOODS CITY OF SOUTH BEND INDIANA DEVELOPMENT CO., L.L.C. By: Printed: Title: EXHIBIT A DEDICATED IMPROVEMENTS .(160,7+:$7(5:25.6.(1111111111160,766666666666666++++,&/4.*5).(160,7+:$7(5:25.6'Zz͘'/>Kd>/d,͘DZ/<:KZEs͘'d,Z^EE&h,^:K^W,Z͘DK>EZ BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date February 15, 2021 Name Kyle Silveus Department Engineering BPW Date February 23, 2021 Phone Extension 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 Purchasing Check the Appropriate Item Type –Required for 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: Agreement Ease./Encroach Required Information Company or Vendor Name Four Horsemen Ventures, LLC New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name Belle Terre Water Extension Agreement Project Number DP19-049 Funding Source N/A Account No. N/A Amount N/A Terms of Contract Purpose/Description Outlines the terms for a public water main extension in Bracken Fern Court. For Change Orders Only Amount of Increase Decrease $ ($ ) Previous Amount $ Current Percent of Change: Increase Decrease % (%) New Amount $ Total Percent of Change: Increase Decrease % (%) Time Extension Amount: New Completion Date: PREVIOUSLYCONSTRUCTEDAIDINNA TSTATE OFNo. PE19900163R E GI SEREDONLASSEFORPIINEG EER N O:\Projects\2020\20-0148 Robert Loudin - Fernwood III\CAD\_Civil\Drawings\Plans\1146FDP.dwg, 10/6/2020 9:18:23 AM EXHIBIT B ENGINEER’S ESTIMATE Description Quantity Unit Unit Price Cost Water Main 1 Mobilization/Demobilization 5%%$24,305.00 $1,215.25 2 Remove Existing Watermain 263 LFT $5.00 $1,315.00 3 HMA Pavement Patching 17 TON $110.00 $1,870.00 4 Concrete Curb Removal/Replacement 20 LFT $25.00 $500.00 5 Water Main, 8" D.I.346 LFT $45.00 $15,570.00 6 Gate Valve & Box, 8" D.I.2 EA $650.00 $1,300.00 7 12" x 8" Tapping Sleeve with Valve 1 EA $3,000.00 $3,000.00 8 8" DI Cap 1 EA $250.00 $250.00 9 Testing 1 LS $500.00 $500.00 TOTAL $25,520.25 Performance Bond Amount (125%)$31,900.31 Cleveland Road Development, LLC. Fernwood Phase Three (Re-plat) Remaining Water Utility Construction Cost Estimate 9 Lots December 15, 2020 Page 1 of 1 EXHIBIT C PERFORMANCE BOND EXHIBIT D SYSTEM DEVELOPMENT CHARGE Estimate Provided On:11/9/2020 Estimate Provided By:C. Brach Values Unit Type Single Family Homes # of Unit Types 11 houses Estimated Flow (gpd) for Single Family Homes 310 per house Estimated Total Flow for Single Family Homes 3410 gpd Estimated Total Flow for Fernwood Phase III 3410 gpd ERU calculation 11.000 ERU ERU rounddown 11 ERU Sewer SDC Calculation ($1145 per ERU) Water SDC Calculation ($475 per ERU) Estimated Amount Due for Fernwood Phase III Estimated 10% Discounted Total (Payment in full) **Estimate is based on projected uses and calculations provided by owner/consultant** 12,595.00$ 5,225.00$ (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 3-6-11 in relationship to three hundred ten (310) gallons per day. For structures not listed in 327 IAC 3-6-11, 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. 17,820.00$ 16,038.00$ Estimate for System Development Charges Fernwood Phase III South Bend, IN (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. (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. 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: (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. Sec. 17-79. - System Development Charge for Wastewater inside and outside City limits. (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. (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. Sec. 17-85. - Methods of payment; prepayment with discount; installment plan. (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. (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 3-6-11 in relationship to three hundred ten (310) gallons per day. For structures not listed in 327 IAC 3-6-11, the ERU shall be calculated as the relationship between the Average Daily Flow reported in the water capacity certification 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 same 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. 17-80. - 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.