HomeMy WebLinkAboutDrainage Easement Agreement - Encroachment Drain for Stormwater East Race – Commerce Center Development LLC
ELIZABETH A. MARADIK GARY A. GILOT JORDAN V. GATHERS JOSEPH R. MOLNAR MURRAY L. MILLER
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
September 28, 2021
Ms. Marcel Lebbin
Commerce Center Development, LLC
401 E. Colfax Ave., Box #2
South Bend, IN 46617
RE: Drainage Easement Agreement
Dear Ms. Lebbin:
At its September 28, 2021 meeting, the Board of Public Works approved the above
referenced agreement for the encroachment of a drain for the Commerce Center stormwater into
East Race Waterway.
Enclosed please find the original of the easement for your signature. Please sign, notarize,
and have the easement recorded. Return the final document 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
INTER-OFFICE MEMORANDUM
Department of Law
City of South Bend 227 W Jefferson Blvd
TO: Board of Public Works, Anne Fuchs, Clara McDaniels
FROM: Sandra Kennedy, Corporation Counsel
SUBJECT: Drainage Easement Agreement
DATE: September 21, 2021
Members of the Board, Ms. Fuchs, and Ms. McDaniels:
As you are aware, Commerce Center Development, LLC has erected a multi-story structure at
LaSalle and the East Race Waterway. In constructing the building, the developer determined that
the most cost-effective method of draining its stormwater was into the East Race Waterw ay. The
City explored other options with the developer but agreed to the developer’s proposal after
consultation with outside counsel specializing in environmental law focusing on waterways. The
Drainage Easement Agreement reflects the suggestions of the City’s outside counsel, including
maintenance of the water treatment unit and the quality of the water discharged into the East
Race Waterway. To ensure that the City does not become responsible for the maintenance of
the treatment unit and to ensure a responsible party is the holder of this easement, the easement
is in gross, meaning that it does not run with the land, but is attached only to the parties executing
the agreement. It is not transferable. The City will be able to re-negotiate this agreement with
any subsequent purchaser of the property or not enter into another agreement, as it determines
at such time. Further, the agreement may terminate after a notice and cure period (30 days) if
the treatment unit is not being properly maintained. The contact person is the City’s MS4
Coordinator.
We ask that the Board approve the Drainage Easement Agreement, which will be countersigned
by Commerce Center Development and recorded by it.
Thank you.
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DRAINAGE EASEMENT AGREEMENT
THIS DRAINAGE EASEMENT AGREEMENT (this “Agreement”) is made and entered
into effective as of this 28th day of September 2021, by and among the City of South Bend, Indiana,
acting by and through its Board of Public Works (collectively the “City”), and Commerce Center
Development LLC, an Indiana limited liability company (“CCD”) (each a “Party,” and collectively
the “Parties”), upon the following terms and conditions:
RECITALS
A. CCD owns real property in South Bend, Indiana, on which it has constructed a
multi-story mixed-use building (the “Development”), which property is more particularly
described in Exhibit A, attached hereto (the “CCD Parcel”). A portion of the CCD Parcel is a
parking lot, and CCD requires a drainage solution for stormwater runoff from the parking lot.
B. The City owns real property in South Bend, Indiana known as the East Bank Trail,
including a retaining wall appurtenant thereto, through a portion of which the City has agreed to
provide CCD an easement for drainage of stormwater runoff from the CCD Parcel parking lot into
the East Race Waterway. The portion through which the City shall grant CCD an easement is
more particularly described in Exhibit B, attached hereto (the “Easement Parcel”).
C. The Parties hereto desire to enter this Agreement on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of ten dollars ($10.00) and other good and valuable
consideration and of the covenants herein contained, the Parties hereby covenant and agree, that
the Easement Parcel shall be and hereby is subject to a non-exclusive easement in gross hereinafter
described in this Agreement.
1. Recitals. The foregoing recitals are a part of and shall be integrated into this
Agreement.
2. Ownership of Easement Parcel. The City represents and warrants that it is lawfully
seized of the Easement Parcel, that it has full right and power to grant the easements
contained herein, and that the Easement Parcel is free from all encumbrances,
except any matters of record.
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3. Grant of Easement to CCD. The City hereby grants to CCD a non-exclusive, non-
transferable easement in gross over, under, across and through the Easement Parcel
to allow drainage from the CCD Parcel into the East Race Waterway.
4. Drainage Pipe. The outlet design is detailed on Exhibit C, attached hereto. CCD
represents and warrants that the entire length of the drainage pipe installed on the
CCD Parcel and on the Easement Parcel is comprised of a non-permeable material
and that the joints used to connect the drainage pipe have been properly treated to
ensure impermeability. Further, CCD shall at all times own and exclusively control
the entire length of the drainage pipe that is installed on the CCD Parcel and the
Easement Parcel. No changes to the drainage pipe shall occur without the prior
written consent of the City Engineer or his or her designee.
5. CCD’s Treatment of Stormwater. No solids or floatables shall exit the drainage
pipe at any time. If solids or floatables are seen emanating from the drainage pipe,
the City shall immediately notify CCD in writing and CCD shall have twenty-four
(24) hours from the time of such notice to cure the default. Additionally, CCD has
installed an Aqua-SwirlTM unit by AquaShield Stormwater Treatment Solutions
(the “Treatment System”). No changes, other than those expected to occur during
routine maintenance, to the Treatment System shall be made without the prior
written consent of the City Engineer or his or her designee. CCD shall adhere to the
maintenance and inspection procedures and timelines set forth in the system
maintenance guide to ensure proper functioning of the Treatment System at all
times during this Agreement and shall provide sufficient copies of the maintenance
records to the City’s MS4 Coordinator on or before December 31st of each year. In
the event of CCD’s failure to maintain the Treatment System as evidenced by the
City’s annual receipt of maintenance records, the City shall provide CCD with
written notice in accordance with Section 11 below.
6. CCD’s Testing of Stormwater. CCD shall test the water emanating from the
drainage pipe into the East Race Waterway at a minimum annually. Testing shall
account for any bacteria, motor oil, chloride, pesticides, or other hazardous
materials entering the East Race Waterway from the drainage pipe. CCD shall
submit the results of such testing in an annual report to the City’s MS4 Coordinator
on or before December 31st of each year. The City shall provide reasonable access
to its parcel so samples can be collected. At the time this Agreement is signed the
City shall provide CCD the contact information for the City’s MS4 Coordinator,
the City shall then update that contact information, as necessitated by any changes
in the information provided to CCD. In the event of CCD’s failure to test the water
exiting the drainage pipe at the Easement Parcel at least annually as evidenced by
a report to the City’s MS4 Coordinator, the City shall provide CCD with written
notice in accordance with Section 11 below.
7. City’s Right to Inspect Treatment System and Test Stormwater. The City reserves
the right, upon twenty-four (24) hours prior notice, to inspect the Treatment System
to ensure its proper functioning. The City reserves the right to test or to cause to
be tested the stormwater exiting the drainage pipe at the Easement Parcel at any
time and for any reason. If the City finds during its inspection of the Treatment
System or its testing of the water at the drainage pipe any issues that require
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attention by CCD, the City shall provide CCD with written notice in accordance
with Section 11 below.
8. Maintenance. CCD will, at its sole expense, maintain and repair in good order and
condition the Easement Parcel, including but not limited to, periodically inspecting
the retaining wall to ensure that it has not destabilized due to the installation of the
drainage pipe and promptly making such repairs to the City’s standards as is
deemed necessary in the reasonable discretion of the City that result from the use
of the drainage pipe.
9. Insurance. CCD shall at all applicable times maintain real property insurance
covering CCD’s activities at the Easement Area, as well as a general liability policy
providing CCD at least One Million Dollars ($1,000,000) in coverage.
10. Indemnification. CCD shall indemnify, defend, and hold the City, its departments,
boards, officers, agents, and employees harmless from and against any and all
claims resulting from (a) damage to any property or injury to any person caused by
the sole negligence, gross negligence, or intentional acts or omissions of CCD, its
members, agents, invitees, or employees and (b) the direct or indirect introduction
of solids, floatable, or hazardous materials or bacteria to the Easement Parcel or the
East Race Waterway by CCD, or its members, agents, invitees, or employees on
the CCD Parcel. Notwithstanding the foregoing or anything in this Agreement to
the contrary the City shall be solely liable for the actions of the City and any of its
officials, employees or agents. In addition, the City does not waive any
governmental immunity or liability limitations available to it under Indiana law.
11. Default. In the event of the breach of any term or condition of this Agreement by
either Party which continues uncured for a period of thirty (30) days after written
notice thereof by the other Party, the Party to whom performance is owed shall have
the right to declare the other Party to be in default hereunder and pursue any and all
available legal and equitable remedies. In the event that the breach involves CCD’s
failure to maintain the Treatment System as set forth in Section 5, to test the
stormwater as required in Section 6, or allow the City to inspect as required in
Section 7 hereof, and, after thirty (30) days, CCD has not taken steps in good faith
to cure the default as set forth in this Section 11, then the Parties agree that the City
shall have the option to immediately terminate this easement and take any actions
it deems necessary, in its sole discretion, to protect the Easement Parcel and the
East Race Waterway. The prevailing Party in any litigation between the Parties
arising from this Drainage Easement Agreement shall be entitled to recover costs
and reasonable attorneys’ fees.
12. Reservation of Rights. The City reserves for itself the free use of the parcel in any
manner not inconsistent with the terms of this Agreement.
13. Recording. This Agreement shall be duly recorded in the Office of the Recorder of
St. Joseph County, Indiana, and all recording fees will be paid by CCD.
14. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Indiana without reference to its conflict of laws
principles.
15. Notices. All notices required or permitted to be given hereunder shall be effective
when personally delivered to an executive officer of the Party or three (3) days after
deposit in the United States Mail, correct postage prepaid for certified mailing,
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return receipt requested and addressed to the Party at the address listed below, or
such other address as that Party may designate from time to time.
16. No Waiver. Neither the failure nor any delay on the part of a Party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any right, remedy,
power or privilege, nor shall any waiver of any right, remedy, power or privilege
with respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the Party asserted to have granted
such waiver.
17. Severability. If any term or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining terms
and provisions of this Agreement shall continue in full force and effect unless
amended or modified by mutual consent of the Parties.
18. Modifications. This Agreement shall not be modified except by a written
instrument signed by the Parties.
19. Authority. The individuals executing this Agreement on behalf of the Parties each
represent under oath that they are duly authorized to do so by the governing body
of such Party, and that all necessary action to create and grant such authority has
been taken and done.
20. Counterparts. This Agreement may be executed in separate counterparts, each of
which when so executed shall be an original, but all of which together shall
constitute one and the same instrument. Any electronically transmitted version of
a manually executed original shall be deemed a manually executed original.
21. Cooperation. Each Party shall, at no additional cost to the other Party, cooperate
with the other and its authorized representatives with regard to any reasonable
requests made subsequent to execution of this Agreement to correct any clerical
errors contained in this Agreement and to provide any and all additional
documentation deemed necessary to effectuate the transaction contemplated by this
Agreement. Each Party further agrees that the term “cooperate,” as used in this
Agreement, includes agreeing to execute or re-execute any documents that the
Parties reasonably deem necessary or desirable to carry out the intent of this
Agreement. The Parties recognize the duty of each Party to act in good faith and
with fair dealings when effectuating the intent of this Agreement.
Signature Pages Follow
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
COMMERCE CENTER DEVELOPMENT LLC,
an Indiana limited liability company
By: _________________________
Its: _________________________
Date Signed:
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared
____________________________, the ____________________________ of Commerce Center
Development LLC, an Indiana limited liability company, who, having been duly sworn,
acknowledged the execution of the foregoing instrument for and on behalf of such entity as such
officer or other representative, being authorized so to do.
WITNESS my hand and Notarial Seal this ___day___________, 2021.
_______________________________
Notary Public
_______________________________
Notary Public (Printed)
My Commission Expires: My County of Residence:
______________________ ________________________________
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EXHIBIT A
CCD Parcel
Lot 2 of the Commerce Center Minor Subdivision Secondary Plat Recorded in the Office of the
St. Joseph County Recorder on December 30, 2019.
Tax No. 018-5003-006602
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EXHIBIT B
Easement Parcel
A STRIP OF LAND 10 FEET IN WIDTH IN THE NORTHWEST QUARTER OF SECTION 12, TOWNSHIP 37
NORTH, RANGE 2 EAST, CITY OF SOUTH BEND, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY,
INDIANA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST
CORNER OF LOT 2 OF COMMERCE CENTER MINOR SUBDIVISION, RECORDED AS INSTRUMENT NO.
2019-34703 IN THE OFFICE OF THE RECORDER OF ST. JOSEPH COUNTY, INDIANA; THENCE NORTH
08°07’52” WEST ALONG THE EAST LINE OF SAID LOT 2 A DISTANCE OF 2.80 FEET; THENCE NORTH
89°36’09” EAST A DISTANCE OF 11.74 FEET; THENCE SOUTH 00°23’51” EAST A DISTANCE OF 10.00
FEET; THENCE SOUTH 89°36’09” WEST A DISTANCE OF 10.39 FEET TO THE EAST LINE OF LOT 1 OF
SAID COMMERCE CENTER MINOR SUBDIVISION; THENCE NORTH 08°07’52” WEST ALONG SAID
EAST LOT LINE A DISTANCE OF 7.29 FEET TO THE POINT OF BEGINNING.
CONTAINING 110.652 SQUARE FEET, MORE OR LESS.
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EXHIBIT C
Outlet Design Detail
LASALLE STREET
SYCAMORE STREETEAST MILL RACEPROPOSED COMMERCE BUILDING
F.F.E. = 685.10
PROPOSED DRAINAGE LEGEND:
CANAL OUTLET DETAIL
NTS
PROFILE VIEW
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B
34567 12
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8 34567 12
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DESCRIPTIONDATENOREVISION RECORDDATE:DWG SCALE:DRAWN BY:CHECKED BY:APPROVED BY:PROJECT NO:SHEET OF
DRAWING NO.:181-930OCTOBER 9, 2018DRAFT21COMMERCE CENTERMIXED-USE DEVELOPMENTWILHELM CONSTRUCTIONSOUTH BEND, INDIANA530 E. Ohio Street · Suite G - Indianapolis, IN 46204317-655-7777 · 877-746-0749 www.cecinc.comPROF
E
SSIONA L E N G INEERINDIA N AAARON C. H
U
RTPE10300058
STATE OF
-oNREGIS TER
E
DDRAINAGE PLANC400
REFERENCE
NORTH
GENERAL DRAINAGE NOTES:JCBDRAFT1" = 20'MATCHLINE - SEE SHEET C401 MATCHLINE - SEE SHEET C401
POST CONSTRUCTION MAINTENANCE GUIDLINES:* HAND SIGNATURE ON FILE110/22/2018ADDENDUM #110211/29/2018FOUNDATION PACKAGE303/25/2019ADDENDUM #1
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date September, 21 2021
Name Sandra Kennedy Department Legal
BPW Date September 28, 2021 Phone Extension 9241
Review and Approval Required Prior to Submittal to Board Diversity Compliance
and Inclusion Officer Officer Name BPW Attorney Attorney Name McDaniels
Dept. Attorney Attorney Name Kennedy
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: Ease./Encroach
Required Information
Company or Vendor Name Commerce Center Development, LLC
New Vendor Yes If Yes, Approved by Purchasing
No
MBE/WBE Contractor MBE
WBE Completed E-Verify Form Attached Yes
No
Project Name
Project Number
Funding Source
Account No.
Amount
Terms of Contract
Purpose/Description Drainage Easement Agreement allowing drain for Commerce Center
stormwater into East Race Waterway.
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: