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HomeMy WebLinkAboutLease Agreement for Temporary Use - Use City Property 924 South Bend Ave. for Approximately 1 Yr. – Brennan’s View, 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 June 22, 2021 Mr. JP Wielgos Brennan’s View, LLC 1130 South Bend Ave., Suite 350 South Bend, IN 46617 jp@7.diamonds RE: Lease Agreement for Temporary Use Dear Mr. Wielgos: At its June 22, 2021 meeting, the Board of Public Works approved the above referenced Lease Agreement for Temporary Use of City property at 924 South Bend Ave. for approximately one (1) year for staging and storage of construction equipment and materials. 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, /s/ Anne Fuchs Anne Fuchs, Clerk Enclosures AF/lh Memorandum June 15, 2021 TO: Board of Public Works FROM: Andrew Netter, Department of Community Investment SUBJECT: Temporary Use Agreement, 924 South Bend Ave., South Bend, IN 46617 The Department of Community Investment is asking for the Board of Public Works to approve the temporary use agreement with Brennan’s View LLC. for use of 924 South Bend Ave., South Bend, IN 46616. The LLC will be using the City property for staging and storage of construction equipment and materials for the duration of the construction of the Brennan’s View multi-unit residential development. The City will be held harmless, by the LLC, for any damage or injury that may be incurred while using City property. Additionally, the City will be added as a covered party to the LLC’s insurance policy. The LLC. is required to follow all City code in their use of the property and must return the property to the City as it was received. The use agreement would commence on 06/23/2021 and will expire on 07/01/2022. 1 LICENSE AGREEMENT FOR TEMPORARY USE This License Agreement For Temporary Use (this “Agreement”) is made effective June 22, 2021, by and between the City of South Bend, Indiana (the "City"), acting by and through its Board of Public Works (the “Board”), and Brennan’s View, LLC., an Indiana limited liability company with its principal office at 1130 South Bend Ave., Suite 350, South Bend, IN 46617 (the “Company”) (each a “Party,” and collectively, the “Parties”). RECITALS A. The Board owns certain real property located in the City limits commonly known as 924 South Bend Avenue, South Bend, Indiana, Parcel Key Number 018-5030-108704, and more particularly described on Exhibit A and outlined on the map attached as Exhibit B (collectively, the “Property”). B. The Company desires temporary access to the Property for the purpose of storing certain equipment and materials for use during a certain project for which it was contracted (the “Equipment”). C. The Board is willing to permit the Company to gain access to and temporarily use the Property for the storage of the Equipment, subject to the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the Parties agree as follows: 1. License. The Board grants to the Company a temporary, non-exclusive license to enter and use the Property for the storage of the Equipment, provided that the Company’s use of the Property is reasonable at all times and comports with the terms of this Agreement and all applicable laws. The Company’s license is limited to use of the paved areas of the Property only. 2. Term and Termination. The Company’s license to use the Property shall be commence on June 23, 2021 and shall terminate on July 1, 2022 (the “Term”). Upon thirty (30) days’ written notice to the Company, the Board or the Board’s authorized representative may revoke and terminate the license at any time for any reason, including, without limitation, to accommodate future development of the Property or the surrounding area, as determined in its, his, or her sole discretion. Notwithstanding the foregoing sentence, the Board or the Board’s authorized representative may revoke and terminate the license without notice in the event there exists any default of the Company’s obligations under this Agreement. 3. No Lease or Easement; Assignment. The Board represents that it is the sole owner in fee simple of the Property and has the lawful right to permit the Company to use the Property under this Agreement. The Parties acknowledge and intend that this Agreement will not constitute a lease of or an easement over the Property, and the Company will have no right or authority to convey any leasehold or other interest in the Property to any other person or entity. Except as expressly provided in this Agreement, any attempt by the Company to grant or lease any interest in the Property to any other person or entity will be void ab initio and of no force or effect. The 2 Parties agree that neither this Agreement nor any of the Company’s rights under this Agreement may be assigned, in whole or in part, to any other party without the Board’s prior written consent. 4. Maintenance. At all times during the period of the license, the Company will keep the Property in good order and condition. 5. Security. The Company understands and agrees that the Board shall not be liable for any loss, damage, destruction, or theft of the Equipment or any bodily harm or injury that may result from the Company’s use of the Property. 6. Storage. The Company agrees that it will not cause or permit, knowingly or unknowingly, any hazardous material to be brought or remain upon, kept, used, discharged, leaked, or emitted at or onto the Property. 7. Regulations; Other Permits. The Company 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 its use of the Property. The Company understands and agrees that it will secure in its own name and at its own expense all other permits and authorizations, if any, necessary for its use of the Property in accordance with the terms of this Agreement. 8. Board’s Use. The Board reserves the right to use the Property during the Term of this Agreement for any purpose that does not substantially interfere with or obstruct the Company’s license under this Agreement. 9. Restoration. To the extent that any portion of the Property is disturbed or damaged in connection with the Company’s use of the Property, the Company, at the Company’s sole expense, shall restore the Property to the condition that existed immediately prior to such disturbance or damage to the satisfaction of the Board. 10. Property Taxes. The Company will be responsible for the payment of all real property taxes and assessments, of any nature whatsoever (the “Taxes”), levied against the Property for all periods during the term of the Company’s license. The Board will have no liability for any Taxes associated with the Property, whether accruing during the term of the license or after the term of the license, and nothing in this Agreement will be construed to require the proration or other apportionment of Taxes resulting in the Board’s liability therefor. 11. Indemnification. The Company agrees and undertakes to defend, indemnify, and hold harmless the City and the Board, and their respective officials, employees, agents, successors, and assigns, from and against any liability, loss, costs, damages, or expenses, including attorneys’ fees, which the City or the Board may suffer or incur as a result of any claims or actions which may be brought by any person or entity arising out of the license granted herein by the Board or the Company’s use of the Property. If any action is brought against the City or the Board, or their respective officials, employees, agents, successors, and assigns, in connection with the Company’s use of the Property, the Company agrees to defend such action or proceedings at its own expense and to pay any judgment rendered therein. 3 12. Insurance. The Company, at the Company’s sole expense, shall maintain during the Term of this Agreement commercial general liability insurance covering the Company in an amount not less than Five Million Dollars ($5,000,000.00) per occurrence, inclusive of the limit an umbrella or excess policy. The Company agrees to include the Board and the City as additional insureds on any such policy and produce to the Board evidence of the same, including without limitation a properly endorsed policy and a certificate of insurance within thirty (30) days of the execution of this Agreement and annually thereafter. To the extent that the Board or the City is harmed as a result of the Company’s use of the Property, the Company hereby grants the Board first priority on any proceeds received from the Company’s insurance. Notwithstanding anything in this Agreement to the contrary, neither the Board nor the City waive any governmental immunity or liability limitations available to them under Indiana law. 13. Integration; Amendment. This Agreement supersedes all prior negotiations, understandings, and agreements, whether written or oral, concerning the subject matter of this Agreement and constitutes the Parties’ entire agreement. This Agreement may not be altered except by a written instrument signed by authorized representatives of both Parties. 14. 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. 15. 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. 16. Counterparts; Signatures. This Agreement may be separately executed in counterparts by the Board and the Company, and the same, when taken together, will be regarded as one original Agreement. Electronically transmitted signatures will be regarded as original signatures. 17. Authority. Each undersigned person signing on behalf of his or her respective Party certifies that he or she is duly authorized to bind his or her respective Party to the terms of this Agreement. 18. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Indiana. IN WITNESS WHEREOF, the Parties have executed this License Agreement for Temporary Use to be effective as of the Effective Date stated above. 5 EXHIBIT A Legal Description Parcel Number: 018-5030-108704L Legal Description: Lot 5 Benny Kirk's Minor Sub Ex part sold to state 19/20 ROW #1155 6/13/18 Address: 924 South Bend Avenue, South Bend, IN 46617 6 EXHIBIT B Map BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 6/15/2021 Name Andrew Netter Department DCI BPW Date 06/22/2021 Phone Extension 5931 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 Sandra 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: Temp. Use Agreement Ease./Encroach Required Information Company or Vendor Name Brennan’s View LLC New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name Temporary Use Agreement 924 South Bend Ave. Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Temporary use agreement for City property, 924 South Bend Ave. for approximately 1 year during construction of Brennan’s View multi-unit residential development. 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: