HomeMy WebLinkAboutAgreement - University of Notre Dame du Lac - Notre Dame Hydro Project at Seitz ParkTEMPORARY LICENSE AGREEMENT FOR SITE EXAMINATION
This Temporary License Agreement For Site Examination (this "Agreement") is made
on November 10, 2016 (the "Effective Date"), by and among the City of South Bend Board of
Public Works (the "Board), the South Bend Redevelopment Commission, governing body of the
City of South Bend Department of Redevelopment (the "Commission," together with the Board
referred to herein as the "City"), and University of Notre Dame du Lac, an Indiana non-profit
corporation with a registered office address of 203 Main Building, Notre Dame, Indiana 46556
(the "University") (each a "Party," and collectively, the "Parties").
RECITALS
A. The Board and the Commission, respectively, own certain real property and
improvements located within the River East Development Area of the City of South Bend, Indiana,
as more particularly described in attached Exhibit A (the `Board Tract" and the "Commission
Tract," which are collectively referred to as the "Property").
B. The University desires temporary access to and use of the Property to conduct (a)
nine (9) soil borings in the locations labeled B-1 through B-9 in the depiction of the Property
attached as Exhibit B, and (b) land survey -related field work (together, the "Examination") for
purposes of pre -construction planning for the project described in the Memorandum of
Understanding entered into between the University and the City of South Bend on or about June
30, 2016 (the "Project").
C. The Board and the Commission are willing to permit the University to gain access
to and temporarily use the Property for the Examination, subject to the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. The Board grants to the University and its agents and contractors a temporary, non-
exclusive license to enter and use the Board Tract for the purpose of conducting the Examination,
provided that the University's use of the Board Tract is reasonable at all times and comports with
the terms of this Agreement and all applicable laws. The Commission grants to the University and
its agents and contractors a temporary, non-exclusive license to enter and use the Commission
Tract for the purpose of conducting the Examination, provided that the University's use of the
Commission Tract is reasonable at all times and comports with the terms of this Agreement and
all applicable laws. Together, the University's license to access and use the Board Tract and the
University's license to access and use the Commission Tract are referred to in this Agreement as
the "License" to access and use the Property.
2. The University's License to conduct the Examination on the Property will be
effective from the Effective Date of this Agreement until the earlier of (a) the date upon which the
University's agents and/or contractors have completed both elements of the Examination, and (b)
December 31, 2016, provided, however, that the Board or Commission may revoke and terminate
the License at any time for any reason, as determined in its sole discretion.
3. The University agrees to exercise its best efforts to minimize any disruption of or
interference with the permitted use of the Commission Tract by FREG Stephenson Mill
Associates, LLC ("FREG"), FREG's property manager, and FREG's tenants (collectively, the
"FREG Parties") under the Easement Agreement dated September 13, 2011, and recorded on
September 14, 2011, as Document No. 1123732 in the Office of the Recorder of St. Joseph
County, Indiana (the "Parking Easement"). The University agrees to communicate with and
cooperate in good faith with FREG in advance of the Examination in order to coordinate the
University's access to and use of the Commission Tract with the least possible disruption of or
interference with the FREG Parties' use thereof under the terms of the Parking Easement.
4. The University understands and agrees that neither the City nor the FREG Parties
will be liable for any loss, damage, destruction, or theft of the property of the University or its
agents and/or contractors or any bodily harm or injury that may result from the University's use
of the Property. The University understands and agrees that it will at all times be solely
responsible for the safety and security of all persons on the Property and any property the
University or its agents or contractors uses on the Property in connection with the Examination.
5. The University agrees that its agents and/or contractors will not store any supplies,
materials, goods, or personal property of any kind on the Property or otherwise use the Property
for any purposes except during the time of the License stated in the foregoing sentence. The
University will not, without the prior written consent of the City and FREG, cause or permit,
knowingly or unknowingly, any hazardous material to be brought or remain upon, kept, used,
discharged, leaked, or emitted at the Property.
6. The University understands and agrees that it will secure in its own name and at its
own expense all necessary permits and authorizations, if any, needed to conduct the Examination.
The University understands and agrees that it will, at its own expense, observe and comply with
all applicable statutes, laws, ordinances, requirements, orders, rules, and regulations of all
governmental authorities in relation to the Examination conducted on the Property.
7. To the extent that any portion of the Property is disturbed or damaged in connection
with the University's use of the Property, including the displacement of soil or pavement in
connection with the University's extraction and collection of soil borings, the University, at the
University's sole expense, will restore the Property to the condition that existed immediately prior
to such disturbance or damage. As to any disturbance of or damage to the Commission Tract, the
University's restoration must be to the reasonable satisfaction of both the Commission and FREG.
As to any disturbance of or damage to the Board Tract, the University's restoration must be to the
reasonable satisfaction of the Board.
8. The University agrees and undertakes to indemnify and hold the Board, the
Commission and the FREG Parties, and their respective agents, employees, successors, and
assigns, harmless from any liability, loss, costs, damages or expenses, including attorneys' fees,
which the Board, the Commission or the FREG Parties may suffer or incur as a result of any
2
claims or actions which may be brought by any person or entity arising out of the approval granted
herein or the University's use of the Property. If any action is brought against the Board, the
Commission or the FREG Parties, or their respective agents, employees, successors, or assigns,
in connection with Examination, the University agrees to defend such action or proceedings at its
own expense and to pay any judgment rendered therein.
9. The Board, the Commission and the University acknowledge that the FREG Parties
are third -party beneficiaries for purposes of enforcing the provisions of this Agreement.
10. Each undersigned person signing on behalf of his/her respective Party certifies that
he/she is duly authorized to bind his/her respective Party to the terms of this Agreement.
IN WITNESS WHEREOF, the Parties have each executed this Temporary License
Agreement For Site Examination to be effective as of the Effective Date stated above.
CITY OF SOUTH BEND
BOARD OF PUBLIC WORKS
4/�L
Gary Gilot, President
Elizabeth Maradik, Member
James Mueller, Member
ATTEST:
� ida Martin, Cl k
UNIVERSITY OF NOTRE DAME DU LAC,
an Indiana non-profit corporation
By:
Printed:
Its:
Date:
SOUTH BEND REDEVELOPMENT
/ COMMISSION
Marcia I. Jones sident
AT ST:
D nald E. Inks, Secretary
CONSENT OF FREG STEPHENSON MILL ASSOCIATES, LLC
FREG Stephenson Mill Associates, LLC ("FREG") hereby consents to the foregoing
Temporary License Agreement For Site Examination between the City of South Bend Board of
Public Works, the South Bend Redevelopment Commission, and University of Notre Dame du
Lac (the "Temporary License"), on the following conditions:
A. Nothing in this Consent shall be deemed an approval of the Project by FREG.
B. The FREG Parties area third -party beneficiary for purposes of enforcing the provisions
of the Temporary License.
FREG STEPHENSON MILL ASSOCIATES, LLC,
a Colorado limited liability company
By: Forum Management, Inc., its Manager
By:
Printed:
Its:
Date:
1300.000001155071510.005
EXHIBIT A
Description of Property
Board Tract
A tract of land along the East bank of the St. Joseph River, from the East Race to approximately
4.5 feet North of the South line of Lot Number 8 in the recorded Plat of Miller and Green's First
Addition to the Town of Lowell, now City of South Bend, Indiana, said tract more particularly
described as follows, viz: Beginning at a point 273.00 feet South of the South line of Colfax
Avenue, measured at right angles to said South line, and 220.42 feet West of the West line of Gintz
Avenue (Race Street) as measured parallel with the South line of Colfax Avenue, said South line
of Colfax Avenue having a bearing of due East and West; thence North 90°00'00" East, a distance
of 16.37 feet; thence South 24°35'05" East, 225.00 feet; thence South 17°48'04" East, 66.26 feet;
thence South 41 °00'29" East, 31,37 feet; thence South 46°05'35" East, 131.29 feet; thence North
54°14'36" East, a distance of 32.03 feet to the approximate West line of the East Race, now
abandoned; thence South 03°32'26" East along the approximate West line of the East Race, a
distance of 1.20 feet; thence continuing along the approximate West line of the East Race, South
03015' 10" West 8.90 feet to the beginning of a meander line approximately and lying inside of a
concrete retaining wall along the St. Joseph River; thence South 53'0' 15" West along said meander
line, a distance of 32.89 feet; thence North 46°28'39 West, 138.62 feet; thence North 40°07'21"
West, 34.03 feet; thence North 26'1 T33" West, 194.85 feet; thence North20°16'19" West, 103.82
feet to the point of beginning.
EXCEPT THE FOLLOWING:
Tract I: That part of Lots 3 through 8 as shown on the recorded plat of Miller and Green's 1st
Addition to the Town of Lowell, as recorded in the records of St. Joseph County, Indiana, which
is described as beginning at a point which is South 26°17'33" East, 109.20 feet, and South
209 5'43" East, 103.83 feet (20016' 19" East, record) and South 273.00 feet from a point on the
South line of Colfax Street which is West, 220.42 feet from the West line of Gintz Avenue; thence
57°43'06" East, 19.64 feet; thence South 24°36'05" East, 21.77 feet; thence South 17°48'04" East,
66.26 feet; thence South 41°00'29" East, 31.37 feet; thence South 46°05'35" East, 42.47 feet;
thence South 44°13'06" West, 9.17 feet; thence North 46°28'30" West, 42.54 feet; thence North
40°07'21" West, 34.03 feet; thence North 26°17'33" West, 85.65 feet to the point of beginning.
Tract II: That part of Lots 3 through 8 as shown on the recorded plat of Miller and Green's 1 st
Addition to the Town of Lowell, as recorded in the records of St. Joseph County, Indiana, which
is described as: Beginning at a point which is North 57°43'06" East, 19.64 feet and South
26°17'35" East, 109.20 feet and South 20°15'43" East, 103.83 feet (South 20°16'19" East, record)
and South, 273.00 feet from a point on the South line of Colfax Street which is West, 220.42 feet
from the West line of Gintz Avenue; thence North 57°43'06" East, 25.54 feet; thence South
32°16'54" East, 149.75 feet; thence South 84°46'04" West, 41.28 feet (South 83047155" West,
record); thence North 46°05'35" West, 14.66 feet; thence North 41°00'29" West, 31.37 feet;
thence North 17°48'04" West, 66.26 feet; thence North 24°35'05" West, 21.77 feet to the Point of
Beginning.
Tract III: A parcel of land described as commencing at the intersection of the South right-of-way
line of Colfax Avenue with the West right-of-way line of Niles Avenue; thence North 89°54'00"
West, along said South right -of way line, a distance of 232.26 feet to the Easterly right-of-way line
of Gintz Avenue; thence South 5°53'22" East, along said Easterly right-of-way line, a distance of
274.46 feet; thence South 5°27'44" East along said Easterly right-of-way line, a distance of 137.81
feet; thence South 3034'50" East, a distance of 84.04 feet to the place of beginning for this
description; thence South 3°34'50" East, a distance of 144.46 feet; thence South 3°12'46" West,
a distance of 8.90 feet; thence South 52°57'51" West, a distance of 32.89 feet to the Easterly
meander line of the St. Joseph River; thence North 46°31'03" West along said Easterly meander
line, a distance of 132.0 feet; thence North 83°47'35" East, a distance of 104.54 feet; thence North
3°34'50" West, a distance of 70.00 feet; thence North 86°25' 10" East, a distance of 13.99 feet to
the place of beginning.
Parcel Key No. 018-5001-000501
Commission Tract
THAT PART OF THE NORTHWEST QUARTER OP SECTION 12, TOWNSHIP 37 NORTH,
RANGE 2 EAST, PORTAGE TOWNSHIP, CITY OF SOUT11 BEND, ST. JOSEPH COUNTY,
INDIANA WHICH IS DESCRIBED AS: LOTNUMBERED TWO (2) AS SHOWN ON THE
ItE'CORDED PLAT OF "OPELIKA MINOR SUBDIVISION" RECORDED AS DOCUMENT
#9311067 IN THE OFFICE OF THE RECORDER OF ST. JOSEPH, COUNTY, INDIANA
AND BEING MORE PARTICULARLY DESCRIBED AS: BEGINNING AT THE
NORTHEAST" CORNER OF LOT #2; SAID POINT BEING THE INTERSECTION OF THE
SOUTI4 RIGHT-OF-WAY LINE OF COLFAX AVENUE (U.S. #20) AND THE EAST LINE
OF SAID LOT #2; THENCE SOUTH 05" 33' 48" EAST, 127.85 FT.; THENCE SOUTH 84"
26' 12" WEST, 20.62 FT.; THENCE SOUTH 05" 33' 48" EAST, 31.45 Ff.; THENCE NORTH
84" 26' 12" EAST, 20.60 FT.; THENCE SOUTH 05" 33' 48" EAST, 50.00 FT'.; THENCE
NORTH 84" 26' 12" EAST, 7.30 FT.; THENCE NORTH 03" 59' 47" WEST, 2.89 FT'.;
THENCE NORTH 86° 00' 13" EAST, 78.11 FT', T'O THF. WESTLINE OF GINT7. AVENUE;
THENCE SOUTH 05" 53' 22" EAST ALONG SAID WEST LINE, 74,18 FT.; TIIENCF.
NORTH 89" 58' 48" WEST, 167.91 FT.; THENCE NORTH 15' 07' 45" WEST, 87.70 FT'.;
THENCE NOR71-1 870 52' 06" EAST, 47.34 FT,; THENCE NORTH 00" 56' 55" WEST, 186,67
FT. T'O T"HE SOUTH RIGHT-OF-WAY LINE OF COLFAX AVENUE (U.S. 420); THENCE
ALONG SAID SOUTH RIGHT-OF-WAY LINE SOUTH 89" 54' 00" EAST, 33.72 FT. TO
THE POINT OF BEGINNING,
TOGETHER WITH THAT PART OF THE NORTHWEST" QUARTER OF SECTION 12,
TOWNSHIP 37 NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, CITY OF SOUTH
BEND, ST, JOSEPH COUNTY, INDIANA WHICH IS DESCRIBED AS: BEGINNING AT A
POINT ON THE WEST RIGHT-OF-WAY LINE OF GINT7, AVENUE WHICH POINT IS
273.00 FT. SOUTH OF T'HE SOUTH RIGHT-OF-WAY LINE OF COLFAX AVENUE,
MEASURED A`1' RIGHT ANGLES TO SAID SOUTH RIGHT-OF-WAY LINE; THENCE
SOUTH 050 53' 22" EAST ALONG SAID GINT7. AVENUE RIGHT-OF-WAY LINE AND
ITS EXTENSION, (RECORD, SOUTH 05" 27' 44" EAST), 152.28 FT.; THENCE NORTH 89'
58, 48" WEST, 149.14 FT.; 'r'1-IE:NCE NORTH 24' 37' 29" WFST, 166.65 FT.; THENCE
SOUTH 890 58' 48" BAST, 202.95 FT. TO THE POINTOF BEGINNING.
Parcel Key No. 018-5001-0005
EXHIBIT B
Depiction of Soil Boring Locations
[See attached.]
I j il mil'
r
f P—M
Date
Name
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Public Works
Division/Bureau Engineering
BPW Date 11/22/2016 Phone Extension 5896
11 /16/2016 Department
Richard Estes
Required Prior to Submittal to Board
Legal ® Attorney Name: Michael Schmidt
Controller ❑ Controller review is required for all Contracts $5,000.00 or more and
greater than one year in length per the City Purchasing Policy
Purchasing ❑ George King
Check the Appropriate Item Type — Required for All Submissions
®
Agreement
❑ Contract ❑ Proposal ❑ Addendum
❑
Professional Services
❑ Resolution
❑
Bid Opening
❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet
❑
Quote Opening
❑ Quote Award
❑
Change Order No.
❑ C/O & PCA No. ❑ PCA
❑
Ease/Encroach.
❑ Traffic Control:
I-1
Other:
Company or Vendor Name
New Vendor
MBE/WBE Contractor
MBE/WBE Contractor Requested
Project Name
Project Number
Funding Source
Account No.
Amount
Terms of Contract
Purpose/Description
Amount of
Increase
Decrease
Previous Amount
Current Percent of Change:
New Amount
Total Percent of Chance:
Information
_LJ Yes U No U If Yes, Approved by Purchasing
❑ MBE ❑ WBE
Ll No ❑ Yes Name of ComDanv
Effective until the earlier of (a) the examination is done, (b)
December 31, 2016
Temporary Access Agreement for Notre Dame to perform Soil
Borings for the ND Hydro Project.
❑ Required Contractor's Certification Forms Attached (Non -
Collusion, Non -Discrimination, Non -Debarment, E-Verify, Iran, etc.)
uired For Change Orders
Copy Original
® ❑ Patrick C Kerr, Therese Dorau
® ❑ Aaron Perri, Paul Moreland, Brian Pau
® ❑ Ben Dougherty