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HomeMy WebLinkAboutLicense Agreement for Temporary Use and Memorandum of License Agreement – Our Lady of the Road, Inc.  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 October 26, 2021 Ms. Margaret R. Pfeil Our Lady of the Road Inc. 744 S. Main St. South Bend, IN 46601 staff@olrsb.org RE: License Agreement for Temporary Use and Memorandum of License Agreement Dear Ms. Pfeil: At its October 26, 2021 meeting, the Board of Public Works approved the above referenced agreements for an easement for long term temporary use and enclosure of the adjacent East/West alley at 744 S. Main St. to reduce crime. Enclosed please find a copy of the agreements 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: License Agreement – Our Lady of the Road DATE: October 19, 2021 Members of the Board, Ms. Fuchs, and Ms. McDaniels: Our Lady of the Road, Inc. (“OLR”) reached out to the City over the summer to voice its concerns regarding criminal and drug-related activity that has been occurring in the alley adjacent to its premises. This activity negatively impacts our more vulnerable population and particularly those served by OLR. OLR has asked to be allowed to fence in the alley in an effort to reduce crime in the area. Eric Horvath, Director of Public Works, Tim Corcoran, Director of Planning, and Pam Meyer, Director of Neighborhoods in conjunction with the Legal Department agreed to a five- year license for use of the alley, which will also allow OLR to fence in and landscape the area. The fence is not to extend beyond the end of OLR’s building in order to allow for unobstructed use of the north/south alley to the rear of the building, and, after five years, the City may terminate the agreement upon 30 days’ written notice. The City determined that five years was suitable given the expense incurred by OLR in installing the fence and landscaping, yet allowing the alley to be reclaimed for use, at the request of other local property owners. Our understanding is that the current property owners neighboring OLR have agreed to the use by OLR. We ask that the Board approve the License Agreement, which has been countersigned by Our Lady of the Road and will be recorded by the City. Please return the document to Pam Meyer, Director of Neighborhoods. Thank you. LICENSE AGREEMENT FOR TEMPORARY USE This License Agreement for Temporary Use (this “Agreement”) is made effective October 26, 2021, by and between the City of South Bend, Indiana (the "City"), acting by and through its Board of Public Works (the “Board”), and Our Lady of the Road Incorporated, an Indiana non-profit corporation ("Our Lady") (each a “Party,” and collectively, the “Parties”). RECITALS A.Our Lady owns property commonly known as 744 S Main Street, South Bend, Indiana, Parcel Key Number 018-3041-156801, and more particularly described on Exhibit A and outlined on the map attached as Exhibit B (the "Property"). B.The Board owns an east-west vacated alley formerly known as Tutt Street located in the City limits that abuts the Property on the alley's north side, as outlined on the map attached as Exhibit C (the "Alley"). C.Our Lady is concerned about activities occurring in the Alley that have a negative effect on the users of the Property and would like to restrict access to the Alley in order to deter such activities. D.Our Lady, in conjunction with City staff, have conferred with the owner of the parcels abutting the Alley to the south, as well as other known users of the alley running north and south, who have no objections to the temporary closing of the Alley. E.The Board is willing to permit Our Lady to gain access to and temporarily enclose the Alley, 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.Recitals. The Parties agree that the foregoing recitals are an integral part of this Agreement and are incorporated herein. 2.License. The Board grants Our Lady a temporary exclusive license to use the Alley, including the right to enclose the Alley with a fence extending only to the end of the building located on the Property, so as not to hinder north and south travel on the alley located behind the Property, provided that Our Lady's use of the Property is reasonable at all times and comports with the terms of this Agreement and all applicable laws (the "License Area"). 3.Term and Termination. Our Lady's right to use the License Area shall be commence as of the date of this Agreement and shall terminate on a date that is no sooner than December 31, 2026 (the “Term”). The Agreement shall continue after the Term until the Board provides thirty (30) days’ written notice to Our Lady to revoke and terminate this Agreement, which notice the Board may provide for any reason, including, without limitation, to accommodate the use of the Alley at the request of local property owners. Notwithstanding the foregoing or anything herein to the contrary, this Agreement shall immediately terminate without notice if the Property is transferred to a third party, including a transfer occurring during the Term. Further, the Board may elect to revoke and terminate this Agreement at any time, including during the Term, if Our Lady is in default with regard to any of the provisions herein contained. 4.No Lease or Easement; Assignment. The Board represents that it is the rightful owner of the Alley and has the lawful right to permit Our Lady to use the License Area under this Agreement. The Parties acknowledge and intend that this Agreement will not constitute a lease of or an easement over the Alley, and Our Lady will have no right or authority to convey any leasehold or other interest in the Alley or the License Area to any other person or entity. Except as expressly provided in this Agreement, any attempt by Our Lady to grant or lease any interest in the Alley or the License Area to any other person or entity will be void ab initio and of no force or effect. The Parties agree that neither this Agreement nor any of Our Lady's rights under this Agreement may be assigned, in whole or in part, to any other party. 5.Maintenance. At all times during the period of the license, Our Lady will keep the License Area in good order and condition, including removing any debris or brush. 6.Security. Our Lady understands and agrees that the Board shall not be liable for any loss, damage, destruction, or any bodily harm or injury that may result from Our Lady's use of the License Area. 7.Storage. Our Lady 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 License Area. 8.Regulations; Other Permits. Our Lady 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 License Area. Our Lady 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 License Area in accordance with the terms of this Agreement. 9.Restoration. To the extent that any portion of the Alley is disturbed or damaged in connection with Our Lady's use of the License Area, Our Lady, at its sole expense, shall restore the Alley to the condition that existed immediately prior to such disturbance or damage to the satisfaction of the Board, including, but not limited to the removal of any fencing enclosing the License Area. 10.Property Taxes. As applicable, Our Lady will be responsible for the payment of all real property taxes and assessments, of any nature whatsoever (the “Taxes”), levied against the License Area for all periods during the term of this Agreement. The Board will have no liability for any Taxes associated with the License Area, 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. Our Lady 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 Our Lady’s use of the License Area. If any action is brought against the City or the Board, or their respective officials, employees, agents, successors, and assigns, in connection with Our Lady’s use of the License Area, Our Lady agrees to defend such action or proceedings at its own expense and to pay any judgment rendered therein. 12.Insurance. Our Lady, at its sole expense, shall maintain during the Term of this Agreement, and any time period after the Term during which this license remains intact, commercial general liability insurance covering the Company in an amount not less than One Million Dollars ($1,000,000.00) per occurrence, inclusive of the limit an umbrella or excess policy . Our Lady 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 Our Lady's use of the License Area, Our Lady hereby grants the Board first priority on any proceeds received from Our Lady'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.Recordable Memorandum of License Agreement. The Parties agree to execute and permit the City to record the attached Memorandum of License Agreement, incorporated herein as Exhibit D, with the St. Joseph County Recorder. 17. Counterparts; Signatures. This Agreement may be separately executed in counterparts by the Board and Our Lady, and the same, when taken together, will be regarded as one original Agreement. Electronically transmitted signatures will be regarded as original signatures. 18.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. 19.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. CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Elizabeth Maradik, President Jordan Gathers, Member Gary Gilot, Member Murray Miller, Member Joseph Molnar, Member ATTEST: Anne Fuchs, Clerk OUR LADY OF THE ROAD Signature Print Date Margaret R. Pfeil 10/12/2021 October 26, 2021 EXHIBIT A Legal Description Parcel Number: 018-3041-156801 Legal Description: The South 31 feet of Lot 5 and all of Outlots 6, 7, and 8 of C. Wadhams 1st Addition. Address: 744 S Main St., South Bend, IN 46601 EXHIBIT B Map (see attached) Legend Coordinate grid is based on Indiana East State Plane Coordinate System 1983 North American Datum. Information shown on this map is not warranted for accuracy or merchantability. Reproduction or distribution of this material is not authorized without the express written permission of MACOG. Map Generated By: Date Printed: 6/22/2021 Public Michiana Regional GIS Website Our Lady of the Road Incorporated parcel 0.0400.020.01 Miles 1 inch = 187.44 feet SJC Parcel Dimensions SJC Parcels ELK Parcels SJC Street ELK Street Building Footprint Railroad Railroad Abandoned Railroad Road Centerline Railroad Bridge Roadway Bridge EXHIBIT C Alley - Outlined in Red (see attached) EXHIBIT D Memorandum of Agreement (see attached) MEMORANDUM OF LICENSE AGREEMENT This Memorandum of License Agreement is entered into this 26th day of October, 2021, by and between the City of South Bend, Indiana, by and through its Board of Public Works (hereinafter collectively referred to as the “City”), and Our Lady of the Road Incorporated, (hereinafter referred to as “Our Lady”). The City, as licensor, and Our Lady, as licensee, have entered into a License Agreement for Temporary Use, dated October 26, 2021, (the “License Agreement”) regarding certain real property located in St. Joseph County, Indiana described as a 14' vacated alley located to the immediate south of Parcel No. 018-3041-156801, formerly known as Tutt Street (the “Alley”), and depicted on the drawing in the attached Exhibit 1. This Memorandum of License Agreement is subject to all of the terms and conditions of the License Agreement, which are incorporated herein by reference, including but not limited to the express termination of the License Agreement immediately upon the transfer of 744 S. Main Street, South Bend, Indiana, Parcel No. 018-3041-156801. The City and Our Lady acknowledge and agree that the License Agreement constitutes the entire agreement between the City and Our Lady regarding the subject matter of this Memorandum of License Agreement, and this Memorandum shall not be construed to modify or amend the License Agreement in any respect. Our Lady or the City may record this Memorandum of License Agreement in the real property records of St. Joseph County, Indiana. Any remaining space on this page left intentionally blank. See next 2 pages for signatures. OUR LADY OF THE ROAD INCORPORATED By: _______________________________ Printed: ___________________________ Title: _____________________________ State of Indiana ) ) SS: County of St. Joseph ) This instrument was acknowledged before me on this ______ day of _________________, 2021 by ______________________, known to me to be the _______________ of Our Lady of the Road Incorporated. _________________________ Notary Public Print Name:________________ My Commission Expires:___________ I am a resident of ______ County, ______ Acting in the County of ___________, ____ (State) I affirm, under penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. /s/ Sandra L. Kennedy This instrument prepared by Sandra L. Kennedy, Corporation Counsel, City of South Bend, Indiana, Department of Law, 227 W. Jefferson Blvd., Suite 1200S, South Bend, IN 46601. When recorded hold for pick up by: City of South Bend, Indiana, Board of Public Works. Exhibit 1 License Area Outlined in Red BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date October 19, 2021 Name Sandra Kennedy Department Legal BPW Date October 26, 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 Our Lady of the Road, Inc. 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 License Agreement for long term temporary use and enclosure of adjacent alley in an effort to reduce crime at location. 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: