HomeMy WebLinkAboutBureau of Indian Affairs ROW Application - Additional Utility Easement – US Dept. of Interior Bureau of IN Affairs
ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT JORDAN V. GATHERS 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
March 22, 2022
Michigan Agency Mr. Mike Phelan
US Department of Interior Bureau of Indiana Affairs 7146 Winter Forest Dr.
2845 Ashmun St. Portage, MI 49024
Sault Ste. Marie, MI 49783-3732 mike.phelan@pokagonband-nsn.gov
RE: Bureau of Indian Affairs Right-of-Way Application
To Whom It May Concern:
At its March 22, 2022 meeting, the Board of Public Works approved the above
referenced application to acquire the additional Utility Easement on Pokagon Band’s Property
for a Water Main Extension, DP #18-025.
Enclosed please find the original of the application for your signature. Please sign and
return the original application to lhensley@southbendin.gov. Please retain a copy for your
records.
If you have any further questions, please call this office at (574) 235-9251.
Sincerely,
/s/ Theresa Heffner
Theresa Heffner, Clerk
Enclosures
TH/lh
OMB Control Number 1076-0181
Expires 6/30/2023
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
RIGHT-OF-WAY APPLICATION
Request for the BIA to grant a right-of-way under the terms and provisions of the Act of
February 5, 1948 (25 U.S.C. 323-328) and Departmental Regulations at 25 CFR 169.
Parcel(s) Affected by Right-of-Way:
Landowner Name(s): ___________________________________________________________
Allotment Number(s): ___________________________________________________________
Legal Description: _____________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Applicant Information
Applicant:____________________________________________________________________
Contact information: Sue Ellen Doudrick, Assistant City Engineer, sdoudrick@southbendin.gov (574) 235-5922.
Right-of-Way Information
General location of the right-of-way:________________________________________________
____________________________________________________________________________
Duration/term (years):_______________________________
Purposes:____________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Length (in feet):____ Width (in feet):_____ Depth (in feet):_____ Size (area):_____________
Owner of permanent improvements in right-of-way:___________________________________
Party responsible for constructing, operating, maintaining, and managing permanent
improvements in right-of-way:____________________________________________________
APPLICANT EXPRESSLY AGREES TO review and abide by all conditions stated in the right-of-
way grant and comply with all provisions of 25 CFR 169.
APPLICANT SIGNATURE:________________________________________________
DATE:________________________________________________________________
ATTEST:______________________________________________________________
See the back of this form for:
Required supporting documents that must be submitted with this application; and
A list of conditions that will be among those in the right-of-way grant.
PLEASE SUBMIT THIS FORM & REQUIRED SUPPORTING DOCUMENTS TO THE LOCAL
BIA AGENCY OFFICE.
PAPER WORK REDUCTION ACT STATEMENT
This information is being collected to provide Bureau of Indian Affairs (BIA) with information necessary to issue a grant
of a right-of-way across Indian land. Response is required to obtain benefits under 25 CFR 169. A Federal Agency
may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a
currently valid OMB control number. Public reporting for this form is estimated to average 1 hour per response,
including the time for reviewing instructions, gathering and maintaining data, completing the form. Direct comment
regarding the burden estimate or any other aspect of this form to: Information Collection Clearance Officer, Office of
Regulatory Affairs & Collaborative Action – Indian Affairs, 1849 C Street, N.W., MS-3071-MIB, Washington, D.C.
20240.
March 22, 2022
OMB Control Number 1076-0181
Expires 6/30/2023
REQUIRED SUPPORTING DOCUMENTS:
(1) An accurate legal description of the right-of-way, its boundaries, and parcels associated with the right-
of-way;
(2) A map of definite location of the right-of-way and existing facilities adjacent to the proposed project,
signed by a professional surveyor or engineer (this requirement does not apply to easements covering
the entire tract of land);
(3) A bond meeting the requirements of 25 CFR § 169.103;
(4) Record of consent for the right-of-way meeting the requirements of 25 CFR § 169.105 for tribal land,
and 25 CFR § 169.106 for individually owned Indian land;
(5) If applicable, a valuation meeting the requirements of 25 CFR § 169.110;
(6) If the applicant is a corporation, limited liability company, partnership, joint venture, or other legal
entity, except a tribal entity, information such as organizational documents, certificates, filing records, and
resolutions, that demonstrates that: (i) The representative has authority to execute the application; (ii)
The right-of-way will be enforceable against the applicant; and (iii) The legal entity is in good standing
and authorized to conduct business in the jurisd iction where the land is located;
(7)Environmental and archeological reports, surveys, and site assessments, as needed to facilitate
compliance with applicable Federal and tribal environmental and land use requirements.
LIST OF CONDITIONS THAT WILL BE AMONG THOSE IN THE RIGHT-OF-WAY GRANT
(1) The grantee has no right to any of the products or resources of the land, including but not limited to,
timber, forage, mineral, and animal resources, unless otherwise provided for in the grant;
(2) BIA may treat any provision of a grant that violates Federal law as a violation of the grant; and
(3) The grantee must:
(i) Construct and maintain the right-of-way in a professional manner consistent with industry
standards;
(ii) Pay promptly all damages and compensation, in addition to the deposit made pur suant to
§169.103, determined by the BIA to be due the landowners and authorized users and occupants of
land as a result of the granting, construction, and maintenance of the right -of-way;
(iii) Restore the land as nearly as may be possible to its original condition, upon the completion of
construction, to the extent compatible with the purpose for which the right-of-way was granted, unless
otherwise negotiated by the parties;
(iv) Clear and keep clear the land within the right-of-way, to the extent compatible with the purpose of
the right-of-way, and dispose of all vegetative and other material cut, uprooted, or otherwise
accumulated during the construction and maintenance of the project;
(v) Comply with all applicable laws and obtain all required permits;
(vi) Not commit waste (i.e., any damage to the property that lessens its value);
(vii) Repair and maintain improvements consistent with the right-of-way agreement;
(viii) Build and maintain necessary and suitable crossings for all roads and trails that intersect the
improvements constructed, maintained, or operated under the right-of-way;
(ix) Restore land to its original condition, as much as reasonably possible, upon revocation or
termination of the right-of-way, unless otherwise negotiated by the parties;
(x) At all times keep the BIA informed of the grantee’s address;
(xi) Refrain from interfering with the landowner’s use of the land, provided that the landowner’s use of
the land is not inconsistent with the right-of-way; and
(xii) Comply with due diligence requirements under § 169.104.
(4) Unless the grantee would be prohibited by law from doing so, the grantee must also:
(i) Hold the United States and the Indian landowners harmless from any loss, liability, or dam ages
resulting from the applicant’s use or occupation of the premises; and
(ii) Indemnify the United States and the Indian landowners against all liabilities or costs relating to the
use, handling, treatment, removal, storage, transportation, or disposal of hazardous materials, or
release or discharge of any hazardous material from the premises that occurs during the term of the
agreement, regardless of fault, with the exception that the applicant is not required to indemnify the
Indian landowners for liability or cost arising from the Indian landowners’ negligence or willful
misconduct.
BIA TAAMS No.___________________
Allotment No(s).___________________
Tribal Tract No(s). #480T18__________
UNITED STATES OF AMERICA
DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
Michigan Agency
2845 Ashmun Street
Sault Ste. Marie, Michigan 49783-3732
GRANT OF RIGHT-OF-WAY
The United States of America, acting by and through the Bureau of Indian Affairs, Department of the Interior,
Michigan Agency, 2845 Ashmun Street, Sault Ste. Marie, Michigan 49783-3732 (the “GRANTOR”) for, on
behalf, and with the consent of: Pokagon Band of Potawatomi Indians, Michigan and Indiana (“Pokagon
Band”), under authority contained and under the Act of February 5, 1948 (62 Stat. 17; 25 USC 323-328);
and Part 169, Title 25, Code of Federal Regulations, which by reference are made a part hereof, does
hereby grant to: City of south Bend, Indiana, of 227 W. Jefferson Boulevard, south Bend, IN 46601 (the
GRANTEE).
1. GRANT. In consideration of: $0.00, paid to the Pokagon Band by (date the right-of-way is granted or
negotiated date),
GRANTOR does hereby grant to GRANTEE, a right-of-way for: municipal utility services, over and
across the land embraced within a right-of-way situated on the following described land: Parcel #71-
08-22-301-001.000-026, as described in the legal description attached hereto as Exhibit A and the
survey attached hereto as Exhibit B, which are made a part hereof;
This right-of-way is limited to and more particularly described to be approximately 4,287 s.f. in area, as
shown on Exhibit B, attached hereto.
2. TERM. This right-of-way is for a perpetual term of so long as the right-of-way is used for the purpose
above specified; PROVIDED, that this right-of-way may be cancelled by the Pokagon Band and
Grantee under any negotiated remedies identified in section 13 (25 CFR 169.403) and/or in whole or
in part by the GRANTOR (25 CFR 169.404) or for any of the following causes upon 30 days written
notice, and failure of the GRANTEE within said notice period to correct the basis for cancellation (25
CFR 169.405):
A. Failure to comply with any term or condition of the Grant, or the applicable regulations.
B. A non-use of the right-of-way for any consecutive two-year period (for the purpose for which it
was granted).
C. Any conditions or restrictions set out in Tribal Council Resolution No. 21-07-__-__, dated July
__, 2021.
3. MITIGATION MEASURES. (25 CFR 169.123) The GRANTEE agrees to comply with any mitigation
measures or conditions described to protect environmental, biological and cultural resources within
the right-of-way area as defined in the environmental compliance documentation.
4. RESERVATION OF JURISDICTION. (25 CFR 169.10, 169.125) The Pokagon Band maintains its
existing jurisdiction over the land, activities, and persons within the right-of-way and this grant does
not diminish to any extent: (a) the Pokagon Band’s power to tax the land, any improvements on the
land, or any person or activity within, the right-of-way; (b) the Pokagon Band’s authority to enforce
tribal law of general or particular application on the land subject to and within the right-of-way, as if
there were no grant of right-of-way; (c) the Pokagon Band’s inherent sovereign power to exercise
civil jurisdiction over non-members on Indian land; or (d) the character of the land subject to the
right-of-way as Indian country under 18 U.S.C. 1151.
5. LAWS. (25 CFR 169.9) GRANTEE shall comply with all applicable federal and tribal law.
6. REGULATORY PROVISIONS. (25 CFR 169.125):
A. On tribal land, the Pokagon Band has the right to reasonable access to the lands subject to the
grant to determine GRANTEE’s compliance with consent conditions or to protect public health
and safety;
B. The GRANTEE has no right to any of the products or resources of the land, including but not
limited to, timber, forage, mineral, and animal resources, unless otherwise provided for in the
grant;
C. BIA may treat any provision of a grant that violates Federal law as a violation of the grant;
D. If historic properties, archeological resources, human remains, or other cultural items not
previously reported are encountered during the course of any activity associated with this grant,
all activity in the immediate vicinity of the properties, resources, remains, or items will cease and
the GRANTEE will contact BIA and the Pokagon Band with jurisdiction over the land to
determine how to proceed and appropriate disposition.
E. GRANTEE must:
(i) Construct and maintain improvements within the right-of-way in a professional manner
consistent with industry standards;
(ii) Pay promptly all damages and compensation, in addition to bond or alternative form of
security made pursuant to §169.103, determined by the BIA to be due the landowners and
authorized users and occupants of land as a result of the granting, construction, and
maintenance of the right-of-way; (iii) Restore the land as nearly as may be possible to its original condition, upon the completion
of construction, to the extent compatible with the purpose for which the right-of-way was
granted, or reclaim the land if agreed to by the landowners;
(iv) Clear and keep clear the land within the right-of-way, to the extent compatible with the
purpose of the right-of-way, and dispose of all vegetative and other material cut, uprooted,
or otherwise accumulated during the construction and maintenance of the project;
(v) Comply with all applicable laws and obtain all required permits;
(vi) Not commit waste;
(vii) Operate, repair and maintain improvements consistent with the right-of-way grant;
(viii) Build and maintain necessary and suitable crossings for all roads and trails that intersect
the improvements constructed, maintained, or operated under the right-of-way;
(ix) Restore the land to its original condition, as much as reasonably possible, upon
cancellation or termination of the right-of-way, or reclaim the land if agreed to by the
landowners;
(x) At all times keep the BIA, and the Pokagon Band for tribal land, informed of the grantee’s
address;
(xi) Refrain from interfering with the landowner’s use of the land, provided that the landowner’s
use of the land is not inconsistent with the right-of-way;
(xii) Comply with the following due diligence requirements: a certificate of completion is
required for BIA audit purposes;
(xiii) Notify the BIA, and the Pokagon Band for tribal land, if it files for bankruptcy or is placed in
receivership.
F. Unless GRANTEE would be prohibited by law from doing so, GRANTEE must also:
(i) Hold the United States and the Indian landowners harmless from any loss, liability, or
damages resulting from the applicant’s use or occupation of the premises; and (ii) Indemnify the United States and the Indian landowners against all liabilities or costs
relating to the use, handling, treatment, removal, storage, transportation, or disposal of
hazardous materials, or release or discharge of any hazardous material from the premises
that occurs during the term of the grant, regardless of fault, with the exception that the
applicant is not required to indemnify the Indian landowners for liability or cost arising from
the Indian landowners’ negligence or willful misconduct.
7. ENCROACHMENT (25 CFR 169.128). The Grantee may not unreasonably withhold its consent for a new right-of-way within its existing right-of-way that does not interfere with the use or purpose of its
right-of-way.
8. PERMANENT IMPROVEMENTS (25 CFR 169.130). The City of South Bend shall be the owner of
any permanent improvements constructed during the term of the Grant and said permanent
improvements, appurtenances, fixtures and equipment placed within the right-of-way shall be
removed or an option for landowner to take possession of and title to the permanent improvements
or as otherwise negotiated.
9. AMENDMENT. This grant may not be amended except as provided in 25 CFR 169.204 - 169.206.
10. ASSIGNMENT (25 CFR 169.207). This grant may not be assigned without__ applicable consent and BIA approval and within 30 days, a copy of the assignment and supporting documents will be sent to
BIA for recording in the LTRO.
11. MORTGAGE (25 CFR 169.210). This grant may not be mortgaged without applicable consent of the
Pokagon Band and BIA approval and within 30 days, a copy of the mortgage and supporting
documents will be sent to BIA for recording in the LTRO.
12. EFFECTIVE DATE (25 CFR 169.301). Grant will be effective on the date it is approved. The
grantee’s obligations are triggered on the effective date of the Grant.
13. REMEDIES (25 CFR 169.403). Any disputes regarding violations, abandonment, or non-use may be
addressed through informal negotiation and binding arbitration before one (1) arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration Association as set
forth in the Grant of Easement and in accordance with 25 CFR 169.403
14. BINDING EFFECT. The condition for this grant shall extend to and be binding upon and shall inure
to the benefit of the successors of the GRANTEE.
15. ADDITIONAL CONDITIONS OR RESTRICTIONS. This grant incorporates by reference the
conditions or restrictions set out in GRANTOR’s consents, attached hereto.
IN WITNESS WHEREOF, GRANTOR, pursuant to the delegated authority found in 209 DM 8, 230 DM 1, and 3 IAM 4 and supplements thereto (or applicable delegation of authority), is granting and executing
this grant of easement on this________ day of _________(month), 2021.
UNITED STATES OF AMERICA
BY ______________________________________________________________
U.S. Department of the Interior
Bureau of Indian Affairs
Regional Director/Superintendent
A C K N O W L E D G E M E N T
STATE OF :
: ss.
COUNTY OF :
Subscribed and sworn to before me this _____ day of ___________ , 2021.
_____________________________________
Signature of Notary Public
My commission expires ____________________ , 202__.
22nd. March 2
O:\PROJECTS\2017\17-0771 BURNS DISTRIBUTING CO\CAD\_SURVEY\LEGALS AND
REPORTS\17-0771 ADDITIONAL PUBLIC UTILITY EASEMENT DESCRIPTION REV.DOCX
EXHIBIT A
ADDITIONAL PUBLIC UTILITY EASEMENT
A UTILITY EASEMENT LOCATED WITHIN A TRACT OF LAND CONVEYED TO WJC HOLDINGS, LLC AS DESCRIBED IN
INSTRUMENT NUMBER 0915758, ST. JOSEPH COUNTY RECORDER, AND BEING A PART OF THE SOUTHEAST QUARTER OF
SECTION 21, TOWNSHIP 37 NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA, AS DEPICTED
ON THE ATTACHED PARCEL PLAT MARKED EXHIBIT B, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTHERLY RIGHT OF WAY OF STATE ROAD 23 AND THE MOST NORTHERLY
POINT OF CURVE NUMBER ‘50’, AS SAID CURVE IS IDENTIFIED ON SHEET 2 OF 3 OF THE EASEMENT SKETCH CONTAINED
WITHIN THE “GRANT OF EASEMENTS PUBLIC UTILITY CORRIDOR AND TRIBAL RIGHT OF WAY” DOCUMENT AS DESCRIBED
IN INSTRUMENT NUMBER 1629776, ST. JOSEPH COUNTY RECORDER; THENCE 109.50 FEET ALONG THE SOUTHERLY RIGHT
OF WAY OF SAID STATE ROAD 23 AND BEING THE CONTINUATION OF SAID CURVE NUMBER ‘50’ TO THE RIGHT HAVING A
RADIUS OF 3,811.64 FEET AND SUBTENDED BY A CHORD BEARING NORTH 53° 53’ 12” EAST 109.50 FEET; THENCE EAST,
PARALLEL WITH SAID EASEMENT, 239.63 FEET; THENCE SOUTH 40° 00' 00" EAST, PARALLEL WITH SAID EASEMENT, 70.43
FEET TO A NORTHWESTERLY LINE OF SAID EASEMENT; THENCE SOUTH 50° 00' 00" WEST, ALONG SAID EASEMENT, 10.00
FEET; THENCE NORTH 40° 00' 00" WEST, ALONG SAID EASEMENT, 70.00 FEET; THENCE SOUTH 50° 00' 00" WEST, ALONG
SAID EASEMENT, 5.04 FEET; THENCE WEST, ALONG SAID EASEMENT, 228.42 FEET; THENCE SOUTH 50° 00' 00" WEST,
ALONG SAID EASEMENT, 102.79 FEET; THENCE NORTH 40° 00' 00" WEST, ALONG SAID EASEMENT 15.06 FEET MORE OR
LESS TO THE SOUTHERLY RIGHT OF WAY OF SAID STATE ROAD 23 AND THE POINT OF BEGINNING.
CONTAINING 4,287 SQUARE FEET, MORE OR LESS AND SUBJECT TO ALL COVENANTS, RIGHTS-OF-WAY, AND EASEMENTS
OF RECORD.
THIS DOCUMENT WAS PREPARED BY HANS P. MUSSER, INDIANA REGISTERED LAND SURVEYOR, LICENSE NUMBER
29700002.
07/09/2020
HANS P. MUSSER, PS DATE
JOB NO.: 17-0771
GARY A. GILOT ELIZABETH A. MARADIK 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
January 4, 2021
Mr. Mike Phelan
7146 Winter Forest Dr.
Portage, MI 49024
mike.phelan@pokagonband-nsn.gov
RE: Easement Agreement
Dear Mr. Phelan:
The Board of Public Works, at its meeting held on December 17, 2020, approved and recorded
the above referenced four (4) party agreement to accommodate the water and sanitary sewer
extension along Prairie Ave.
Enclosed please find the original of the agreement for your signature. Please sign and return a
copy of the agreement to lhensley@southbendin.gov.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
s/Anne Fuchs, Clerk
Enclosure
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date 3/15/2022
Name Sue Ellen Doudrick Department DPW
BPW Date 3/22/2022 Phone Extension 5922
Review and Approval Required Prior to Submittal to Board Diversity Compliance
and Inclusion Officer Officer Name BPW Attorney Attorney Name
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: BIA Right of Way
Agreement
Ease./Encroach
Required Information
Company or Vendor Name US Department of Interior Bureau of Indiana Affairs
New Vendor Yes If Yes, Approved by Purchasing
No
MBE/WBE Contractor MBE
WBE Completed E-Verify Form Attached Yes
No
Project Name Prairie Avenue Water Main Extension by Star 001
Project Number DP 18-025
Funding Source n/a
Account No. n/a
Amount n/a
Terms of Contract ROW Agreement with BIA
Purpose/Description The purpose of the BIA Right of Way Application is to acquire the
additional utility easement on the Pokagon Band’s property that is required
as part of the water main extension from the Band’s property on Prairie
Avenue to the Star 001 development. The easement was required as part of
the 4-party Easement Agreement approved at the board on 12/17/2020.
For Change Orders Only
Amount of
Increase
Decrease
($)
Previous Amount
Current Percent of Change:
Increase
Decrease
(%)
New Amount
Total Percent of Change:
Increase
Decrease
(%)