HomeMy WebLinkAboutNon-Exclusive License Agreement - Triangle Homeowners Assoc - Use of City of SB Burns Triangle Right of Way1316 COUNTY -CITY BUILDING
227 W. JEFFERSON BOULEVARD
SOUTH BEND_ 1NDIANA 46601-1930
186
CITY OF SOUTH BEND PETE BUTTIGIEG, MAY
BOARD PUBLIC WORKS I
December 11, 2018
Mo Miller
Triangle Homeowners Association, Inc,
11I111 N' ^ tr l C_0�t 111�1m1 c v
RE: Non -Exclusive License Agreement
Dear Mr. Miller:
PHONE 574/235-9251
FAx 574/235-9171
The Board of Public Works, at its meeting held on December 11, 2018, approved the above
referenced agreement for use of the City of South Bend, Burns Triangle Right -of -Way area
for Homeowner Association gatherings.
Enclosed please find a copy of the agreement for your records.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
Linda M. Martin, Clerk
Enclosure
GARY A. G1LOT SUZANNA M. FRITZBERG ELIZABETH A. MARADIK JAMES A. MUELLER THERESE J. DORAU
NON-EXCLUSIVE LICENSE AGREEMENT
This Non -Exclusive License Agreement for the Use of Real Estate ("License") is executed to be
effective January 1, 2019 ("Effective Date") between the City of South Bend, Indiana (the "City"),
acting by and through it Board of Public Works (the "Board") and the Triangle Home Owners
Association, Inc., an Indiana not for profit Corporation ("THOA"). The City and THOA are
referred to individually as "Party" and collectively as "Parties".
STATEMENT OF FACTS
A. The Board is authorized under Indiana law and the City's Municipal Code to control
the use of public rights -of -way within the municipal boundaries of the City.
B. The THOA is duly authorized pursuant to the Declaration of Covenants and
Restrictions ("Declarations") of the Triangle PUD ("Triangle") recorded in the
Office of the St Joseph County, Indiana Recorder's Office on May 2012 as
Document No. 1214319, to manage the use of the Triangle consistent with the terms
and conditions of the Declarations.
C. The Triangle consists of single family owner occupied residences which has limited
Common Areas for use by Triangle residents.
D. An area exists within the Triangle which is City public right-of-way, which legal
description is attached hereto and made a part hereof as Exhibit "A" ("Burns
Triangle"). The Bums Triangle is depicted on a diagram attached hereto and made
a part hereof as Exhibit "B".
E. The THOA has improved the Burns Triangle at its own expense and has sodded
and cut the grass on a regular basis. These improvements make the Burns Triangle
a popular place for Triangle Residents and their guests to socialize and engage in
recreational activities.
F. The City desires, according to the terms and conditions of this License to: (i) accept
the dedication of the improvements made at the Burns Triangle by the THOA; (ii)
permit Triangle residents to use the Burns Triangle, on a non-exclusive basis, for
resident and THOA gatherings on a non-exclusive basis and, (iii) subject to the
right of public to petition the City, consistent with its rules and regulation, to use
the Burns Triangle.
Based upon the mutual covenants and conditions contained in the License, the Parties agree as
follows:
INCORPORATION OF S'IA `I�'MENT OF FACTS. The Statement of Facts are
incorporated into the operative provisions of the License as if fully set out herein.
2. GRAPIT OF N+11!NJ,XCLUST E 1," CENSE. The City hereby grants to the THOA a
non-exclusive license ("License") for the use of the Burns Triangle. The Parties
acknowledge this License is granted to the current and future collective members of the
THOA for association events or for individual usual and customary recreational uses, not
requiring a City application and/or permit.
3. TERMINATION BY CITY. The City reserves the right to terminate this License in whole
or part at any time for any reason, upon providing the THOA thirty days (30) advance
written notice.
4. RE UIlkED INSURANCE. The THOA shall obtain and maintain at all times during the
term of this License Commercial General Liability Insurance, in an amount not less than
One Million Dollars ($1,000,000), including bodily injury and property damage. The
policy shall name the City as an additional insured as respects any covered liability arising
out of the THOA's use of the Burns Triangle. Any liability for the use of the Burns Triangle
by the THOA under this license shall be limited to coverage provided to the City in the
Policy approved by the CITY.
1' ON-CONVEVAl' CE OF P'I III'EWI'Y li1V'S°p"EREST. The City reserves the right to
use or grant use of the Burns Triangle to members of the public, in accordance with City
Code, rules, policies and applicable state and federal laws. This License does not create
any property interest or rights in the THOA.
6. AC"CFAITANC s' O:F IMPROVE" E TS. The Parties acknowledge the THOA has at its
own expense done landscaping as well as constructed some pathways and benches which
the City hereby accepts as allowable improvements in the Public Right of Way. As a result
the City has 'under State law the duty to maintain these improvements The THOA may,
but is not obligated to, assist the City in :niaintainijig the improvements and any
landscaping. The City grants the, TIIOA permission to trine trees and shrubbery as well as
to cut grass. Except for additional incidental landscaping, any new improvements from
and after the Effective Date of this License shall only occur after permission is granted by
the City. The value of the improvements made by the THOA provides additional valuable
consideration to support the License granted by City to the THOA.
7 � INDE I I' IFI'CA°l! "IO . The THOA shall indemnify and hold the City, its officials, agents
and employees harmless from any liability due to loss, damage, injuries or other casualties
of any kind, to the person or property of anyone on the Burns Triangle arising out of, or
resulting from the issuance of this License, whether due in whole or in part to the negligent
acts or omission of the City, its officials, agents or employees, up to the amount of the
insurance coverage provided under paragraph 3 above. The extent of the THOA's liability
is limited by the insurance coverage provided for the benefit of the Parties under paragraph
3. City shall indemnify and hold the Triangle harmless from any claims resulting from an
incident which occurs on the Burns Triangle during a time which the THOA is not
exercising its rights under this License. Any indemnification under this paragraph 6 shall
include any costs of defense required to respond to claims which are subject to
indemnification.
2
MISCELLANEOUS.
The following general terms are made a part of this License:
A. This License shall bind, and inure to the benefit of, the Parties and their heirs,
personal and legal representatives, and successors and assigns.
B. This License shall be interpreted by the laws of the State, of Indiana and any venue
for any action related to this License shall be in the St. Joseph County, Indiana
Courts.
C. The Parties agree to negotiate each dispute between them in good faith during the 30
days after notice of dispute. If negotiations are unsuccessful in resolving the dispute,
then the dispute shall be mediated. If mediation is unsuccessful, then the parties may
exercise their rights at law. The Parties shall be responsible for their own mediation
and legal fees.
D, Any Parties' failure to enforce any of its rights or remedies upon the other Parties'
breach of any of the covenants, terms or conditions of this License shall not be
deemed a waiver of those rights or remedies, nor shall its failure bar or abridge any
of its rights or remedies upon any subsequent default.
$ If any covenant, term or condition of this License is held invalid or unenforceable
by a court, the remaining covenants, terms or conditions shall not be affected by
such an occurrence. Each covenant, term and condition of this License shall be
given effect and enforced against the breaching Party to the fullest extent permitted
by law.
F. This License constitutes the entire agreement between the Parties and may not be
modified except in writing, signed by both Parties. Any prior understanding or
representation of any kind preceding the date of this License shall not be binding
on either Party except to the extent incorporated in this License.
G. The undersigned persons executing and delivering this License on behalf of each
Party represent and certify they are duly authorized with authority to execute this
License; they have the full legal right, power and authority to enter into this License
and to grant the rights and perform the obligations contained herein; to the extent
any third party consent or approval is required to grant such rights or perform such
obligations hereunder those third party consents or approvals will be obtained, but
each Party may rely on this License as a valid and binding obligation, enforceable
in accordance with its terms.
H. This Agreement may be executed in counterparts, each of which when taken
together shall constitute one and the same instrument.
A signature transmitted electronically, or as a PDF (or similar file) via electronic
mail, shall be considered an original for purposes of this License.
[SIGNATURE PAGE FOLL0WSJ
TRIANGLE HOMEOWNERS ASSOC., INC
A_W_. .
Signature
Mo Miller
Printed Name
Registered Agent
Title
CITY OF SOUTH BEND, INDIANA
BOARD OF PUBLIC WORKS
J�,�aLArok ____
Gary A. Gilt, President
Suzanna Fritzberg, Member
James A. Mueller, Member
I icm . se J. Oo a Member
Elizabeth A. Maradik, Member
A°l l IpS �
I
�,I. " a M. Martin, �1erl
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State thislaq, day of
r "?� ALL_... 2018, personally appeared Mo Miller, Authorized and Registered Agent of the
Triangle Homeowners, Association, Inc., and acknowledges execution of the foregoing Agreement on
behalf of the association.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
Rci e" no_tyNotaly Public
My Commission expires:
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
KATRINA MARQUARDT
NOTARY PUBLIC
SEAL
ST. JOSEPH COUNTY, STATE OF INDIANA
MY COMMISSION EXPIRES NOVEMBER 16, 2026
COMMISSION NUMBER NP0622417
Before me, the undersigned, a Notary Public for and in said County and State this
day ofm ..�µ. mm 2018, personally appeared Gary A. Gilot and Linda M.
Martin, known to me to be the President and Clerk of the City of South Bend, Indiana Board
of Public Works, and acknowledge execution of the foregoing Agreement on behalf of said
Commission.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
Notary Public
Resident of St. Joseph County, Indiana
My Commission expires:
PATriangir,Vriangle HOA BPW License Agreement RAN2 PV_Legal 11222018 (003) Mdoox
D"
EXHIBIT A
LEGAL DESCRIPTION OF BURNS TRIANGLE
A part of the Northwest Quarter of Section 6, Township 37 North, Range 3 East, City of South
Bend, Portage Township, St. Joseph, Indiana, described as follows: the entire Plat of the
"Triangle Major Subdivision" as recorded by Document No. 1213048 in the Records of the St.
Joseph County, Indiana Recorder's office, excepting therefrom the following: Lots #1 through
32, Lots #37 through 450, and Out lots `B' and `C' as shown in the Plat of the "Triangle Major
Subdivision" as recorded y Document No. 1213048 in the Records of said County, and excepting
Lots #51A, 52A and 53A of the Plat of the "Triangle First Replat" Subdivision as recorded by
Document No. 1425108 in the Records of said County, and excepting Lots 933A, 34A and 35A
of the Plat of the "Triangle Major Subdivision, Second Replat" as recorded by Document No.
1708767in the Records of said County.
Subject to all legal highways, easements and restrictions of record.
EXHIBIT "B"
DEPICTION OF BURNS TRIANGLE
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BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date
Name
November 29„ 2018
Jitin Kain
Department Public Works
BPW Date December 11, 2018 Phone Extension 5835
im m maremmcn mmmmm
Required Prior to Submittal to Board
.m_ __._. ...._...__...........
Legal Attorney Name Clara McDaniels
Controller review is required for all Contracts $5,000.00 or more
Controller ❑ and greater than one year in length per the City Purchasing
Policy
Purchasing
Check the
Agreement
Professional Services
Bid Opening
Quote Opening
❑]' Chg Order No.
Ease./Encroach.
Other:
Company or Vendor Name
for All Si
Proposal
❑ Req. to Advertise
[� PCA
El Resolution
❑ Claim
Required Information
Triangle Home Owners Association, Inc.
iroprlate Item Tea_
E] Contract
F1 Amendment
El Bid Award
El Quote Award
[] C/O & PCA No.
E] Traffic Control
New Vendor
LJ Yes
No
MBE/WBE Contractor
❑ MBE
❑ WBE
Project Name
Project Number
Funding Source
_............_..........w_.
Account No.
Amount
If Yes, Approved by Purchasing
Addendum
❑ Title Sheet
Completed E-Verify Form Attached ❑ Yes
❑ No
Terms of Contract No end date. However, can be terminated at any time by
y vance written notice.
_ .......................��ww �.m_..._.........
Purpose/Description Non -Exclusive license to use the COSB Burns Triangle R-O-W
area for HOA gatherings.
For Ghaggp Orders Orrn.�._..... �....
Amount of Increase $ ...... _ _.. _ _......._..w.
❑ Decrease
Previous Amount $
Current Percent of Change:
New Amount �.........-......__.....
Total Percent of Change:..........%
Time Extension: —_ ...................
Dispersal After Approval
Copy
Original
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