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HomeMy WebLinkAboutAgreements - Concrete Curb & Channelization Median at Grandview – Northern IN Commuter Transportation District - TABLED1 CONCRETE CURB AND CHANNELIZATION MEDIAN INSTALLATION AND MAINTENANCE LICENSE AGREEMENT This Concrete Curb and Channelization Median Installation and Maintenance License Agreement (“License”) is entered into this 23rd day of November, 2021, between the Northern Indiana Commuter Transportation District (“Licensor” or “NICTD”), an Indiana municipal corporation, and the City of South Bend, Indiana, by and through its Board of Public Works (“Licensee” or “South Bend”), an Indiana municipal corporation. WITNESSETH: WHEREAS, Licensor is the owner of certain real estate, railroad tracks, and railroad appurtenances in the vicinity of 55674 Grandview Avenue, South Bend, Indiana; and WHEREAS, Licensor’s railroad tracks cross Grandview Avenue at-grade at DOT Crossing #870392D; and WHEREAS, Licensee is the public entity with jurisdiction over the streets and public rights-of-way in South Bend, Indiana, which includes Grandview Avenue; and WHEREAS, Licensee desires to install and maintain a concrete curb and channelizing median within the right-of-way of Grandview Avenue within twenty-five (25) feet of the Licensor’s railroad tracks in furtherance of South Bend’s efforts to establish a Federal Railroad Administration (“FRA”) quiet zone; and WHEREAS, Licensor desires to allow Licensee to install and maintain the concrete curb and channelizing median on Grandview Avenue, subject to this License establishing the rights and responsibilities with respect to the installation, maintenance, and ownership of the concrete curb and channelizing median. NOW, THEREFORE, in consideration of the mutual covenants, promises, and terms herein made, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, NICTD grants South Bend this License, subject to South Bend’s compliance with the following terms and conditions: 1. Term of License. A. Initial Term. This License shall begin on the date indicated on the first page of the License, and shall run until and expire on January 1, 2042 (“Initial Term”), unless revoked for cause at an earlier date. B. Renewal Terms. If not earlier revoked or terminated, this License shall automatically renew for a successive term of ten (10) years (“Renewal Term”). The License shall perpetually renew after the first Renewal Term and for each Renewal Term thereafter, unless revoked for cause or terminated as provided herein. 2 C. Termination. Either party may terminate this License by giving written notice to the other at least six (6) full calendar months before the expiration date of the Initial Term or the Renewal Term. For illustration, a notice of termination given during the Initial Term must be made on or before June 30, 2041. 2. Scope of License. A. Installation of Concrete Curb and Channelizing Median. Licensee is hereby granted a license to install a concrete curb and channelizing median within twenty-five (25) feet of Licensor’s railroad tracks, as depicted in the construction plans attached hereto as Exhibit ‘1’. B. Maintenance of Concrete Curb and Channelizing Median. Licensee is hereby granted a license to perform maintenance and upkeep on the installed concrete curb and channelizing median, on an as-needed basis or as requested by Licensor. C. Restoration and Removal of Concrete Curb and Channelizing Median. In the event or structural repairs or other work performed by or for Licensor, or any other person, effects of time, weather, or property damage which destroys or disrupts the concrete curb or channelizing median, Licensee is hereby granted a license to restore and re- install the concrete curb and channelizing median. In the event this Agreement is terminated, Licensee is hereby granted a license to remove the concrete curb and channelizing median. 3. Compliance with Law. Licensee shall at all times, at its sole cost and expense, comply with all federal, state, and local statutes and regulatory requirements associated with construction and installation of roadways, concrete curbs, and channelizing medians, including traffic control, and the licensed area, and Licensee agrees to indemnify NICTD from any liability resulting from Licensee’s failure to comply with applicable statutes and regulatory requirements. 4. Access. Licensee’s ability to enter within twenty-five (25) feet of Licensor’s railroad tracks during construction, maintenance, restoration, or repairs is expressly conditioned on Licensee (or its contractors) completing the Licensor’s then-current right-of-entry, providing the required proof of insurance, and having railroad flagging protection in place. 5. Design Approval. Before installation of the concrete curb and channelizing median within twenty-five (25) feet of Licensor’s railroad tracks, NICTD must give written approval of the design and location of same. Licensee shall submit the initial design of the concrete curb and channelizing median, and the design for any proposed changes or alterations of the concrete curb and channelizing median, to NICTD for review and approval. NICTD reserves the sole and absolute discretion to grant or withhold approval of any design submitted by Licensee. No additional design approval is necessary for maintenance or restoration of a previously-approved design. 3 6. Costs. A. Design, Installation, Maintenance, and Restoration. Licensee shall bear all costs of design, installation, maintenance, and restoration of the concrete curb and channelizing median. B. Emergency Maintenance. Licensee shall bear all costs of emergency maintenance or repairs of the concrete curb and channelizing median necessitated by any damage to same that presents a safety risk to Licensor’s operations or the travelling public. 7. Emergency Maintenance. In the event of damage to the concrete curb or channelizing median by Licensee or a third party, Licensor may request that Licensee perform emergency maintenance to remedy the damage. After receiving the request, Licensee shall have twenty (20) days to complete the maintenance work. If Licensee fails to complete the maintenance work within twenty (20) days of the request, Licensor shall have the right, but not the obligation, to complete the emergency maintenance. In the event Licensor completes the emergency maintenance as described in this section, Licensor shall be entitled to recover the costs of the maintenance from Licensee, including force account costs, attorney’s fees, and all other costs, whether or not litigation ensues. Licensor shall send a written invoice of the costs for the work to Licensee. Licensee agrees to pay the costs invoiced by Licensor within thirty (30) days of the notice. 8. Insurance. A. Prior to and during all times when Licensee, its contractors, and/or their subcontractors are installing, maintaining, or restoring a mural, or are present on NICTD property under the terms of this Agreement or otherwise, Licensee, its contractors and its subcontractors, shall purchase and maintain the following insurance coverage from any responsible carrier(s) rated “A+” or better by Best’s Review. The total cost of the premiums for such insurance coverage shall be at the sole expense of the Licensee, its contractor(s) and/or subcontractor(s). 1. Comprehensive General Liability Insurance: The Licensee’s contractors shall furnish evidence, with respect to the operations it performs and any operations performed by its contractors or subcontractors, of comprehensive general liability insurance covering bodily injury, death, and property damage, including loss of use, with a limit of not less than $5,000,000 each occurrence combined single limit, bodily injury and/or property damage combined, including contractual liability coverage with any reference or exclusion relating to Work within fifty (50) feet of a railroad track deleted as respects this License; and, listing as respect Licensee's obligations herein the Northern Indiana Commuter Transportation District (NICTD) as an additional insured. 2. Workers' Compensation Insurance: The Licensee, its contractors, and their subcontractors shall furnish evidence, with respect to the operations they perform, of workers compensation insurance complying with the statutes of the state wherein the Work is conducted covering their respective employees. The coverage shall 4 include employer’s liability coverage with limits of not less than the greater of the statutory limits or $500,000 each accident; $500,000 each employee disease; and $500,000 aggregate policy limit. 3. Automobile Liability: The Licensee, its contractors, and their subcontractors shall furnish evidence that, with respect to the operations they perform, they carry coverage issued to and covering the liability of the Licensee, its contractors, and their subcontractors arising out of the use of all owned, non-owned, hired, rented or leased vehicles which bear or are required to bear license plates according to the laws of the State of Illinois or Indiana or Michigan and which are not covered under the comprehensive general liability insurance of the Licensee, its contractors, or subcontractors. Coverage under this policy shall have limits of liability of not less than $2,000,000 per occurrence, combined single limit, for bodily injury and property damage liability. The policy as respecting Licensee's obligations herein, shall name the Northern Indiana Commuter Transportation District (NICTD) as an additional insured. 4. The Licensee as an Indiana governmental entity, maintains a Liability Insurance Premium and Liability Fund with regard to property damage, general liability, and worker’s compensation coverage per City of South Bend, Indiana Ordinance #6657-79 effective October 11, 1979, pursuant to Indiana Code Sec. 34-13-3-4, as amended from time to time. Under said statute, the Licensee’s liability is limited to: a. Seven Hundred Thousand Dollars ($700,000) for a cause of action that accrues on or after January 1, 2008; and b. For injury to or death of all persons in that occurrence, Five Million Dollars ($5,000,000); and c. A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive damages. B. Notwithstanding anything contained herein to the contrary, the coverage defined in sub-paragraph (1) above shall be maintained at all times during the term of this License. The coverage defined in sub-paragraphs (1), (2), and (3) must be maintained during such times when the Licensee or its contractors are conducting installation, maintenance, restoration, or inspection activities in the License Area. Failure to carry or keep such insurance in force or to reinstate same when entry to the License Area is required shall constitute a violation of the License and subject Licensee to immediate termination of the rights granted under this License. Prior to the commencement of any Work, the Licensee shall furnish NICTD with properly endorsed certificates evidencing insurance for comprehensive general liability insurance, workers compensation coverage, and automobile liability insurance. If any work is contracted or subcontracted, the Licensee shall furnish NICTD with properly endorsed certificates evidencing insurance for the comprehensive general liability policies of the contractors and subcontractors, as well as certificates of insurance for the contractors and subcontractors' workers' compensation and automobile liability insurance. All 5 certificates shall provide for written cancellation notice to Licensor at least thirty (30) days in advance of cancellation. C. Except with the respect to workers compensation coverage, all policies of insurance required to be carried under this License shall contain a waiver of subrogation clause for the benefit of NICTD. 9. Revocation for Cause. A breach of any provision of this License by Licensee shall be grounds for NICTD to revoke the License for cause, which revocation may be made in writing and delivered to Licensee. In the event of a revocation for cause, the License shall terminate immediately upon delivery of the notice of revocation to Licensee. Governing Law. Notwithstanding any statutes or precedent to the contrary, this License is to be interpreted, construed, and enforced pursuant to the laws of the State of Indiana. Additionally, the parties agree that in the event litigation is filed by either of them as a result of this License Agreement, the sole venue shall be the Superior or Circuit Courts of or Indiana County mutually agreed to by the parties. 10. Binding Nature of License. The terms of this License Agreement shall be binding and effective upon all the parties to it. Unless and until terminated as provided above, this License shall also inure to the benefit of and be binding upon the parties' successors, lessees, heirs, executors, administrators, assigns, and legal or personal representatives. 11. Severability. This License is executed by all parties under current interpretations of applicable federal, state or local statute, ordinance, law and regulations. Each and every separate division (paragraph, clause, conditions, covenant or agreement) herein contained shall have independent and severable status from each other, so that if any separate division herein is determined to be unconstitutional, illegal, violative of trade commerce, in contravention of public policy, void, voidable, invalid or unenforceable for any reason, that separate division shall have no effect on the validity or enforceability of each and every other separate division herein contained, or any other combination thereof. 12. Notice. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given if delivered by hand, deposited with a same day or overnight courier service, or mailed, certified or registered mail, with postage prepaid: If to NICTD : Northern Indiana Commuter Transportation District Attention: President 33 East U.S. Highway 12 Chesterton, IN 46304-3514 If to Licensee: City of South Bend 6 Attention: Director of Public Works 227 W. Jefferson Blvd. South Bend, IN 46601 13. Assignment. The rights hereunder granted are non-assignable by Licensee, and inure to the benefit of Licensee only for the purposes herein stated. Licensee is not permitted to grant rights to any person, firm or corporation under this License Agreement. The rights hereunder granted shall be subordinate and subservient to the rights of NICTD to use its property for any and all railroad, parking, and ancillary purposes; and in the event that the rights and privileges hereunder granted to Licensee shall in any way prevent or interfere with any of NICTD’s uses of its property for the aforementioned purposes, such rights shall be limited and further restricted so as to permit the use of said property for railroad, parking, and ancillary purposes by NICTD. Any attempt by Licensee to assign this License shall automatically be null and void and this Agreement shall terminate automatically upon any such attempted assignment. 14. Liens. Licensee shall not create or suffer to exist any lien or encumbrance upon NICTD’s property. Any contract entered into by Licensee providing for installation, maintenance, or restoration to be performed on NICTD’s property shall expressly provide that no lien may be placed upon such property. 15. Licensee’s Breach. In the event of Licensee’s breach of any of the terms or conditions of this License Agreement, Licensee shall reimburse NICTD or for all its costs, including all attorney fees and out of pocket expenses, including all costs of its paid staff, all without limitation, incurred by it as a result of any such breach, whether or not litigation ensues. Licensee agrees to pay NICTD’s claim in the amount of all aforementioned costs and/or fees incurred within ten (10) days of such claim being delivered to Licensee at the address stated above. No other notice is required or contemplated pursuant to this Agreement. 16. Authority. Each party warrants that it has all of the requisite authority to execute this License Agreement and to carry out all obligations under this Agreement. 7 IN WITNESS WHEREOF, the parties hereto have executed this License as of the day and year first written above. NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT By: Michael Noland President CITY OF SOUTH BEND . PERMIT AND INDEMNIFICATION AGREEMENT 1. Indemnity Agreement. KNOW ALL MEN BY THESE PRESENTS THAT, The City of South Bend Indiana by and through its Board of Public Works (“Applicant”), have requested and do request permission from NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT (“NICTD”) to enter and be present upon equipment, rolling stock, premises, property and/or facilities owned, leased or controlled by NICTD (“NICTD Property”) at or in the vicinity of the NICTD railroad crossing of Grandview Ave in South Bend, IN, DOT Crossing #870392D. The time period wherein the Applicant may enter the above-referenced vicinity for the purposes of conducting the activities described below is: DATE (mm/dd/yy) TIME (in hours) Excepting Time From To From To From To The Applicant’s purpose for requesting entry and its presence on NICTD Property is: installing concrete median at the industrial drive north of the crossing and installing plastic mountable median on the north, middle, and south side of the crossing. . Applicant [circle one] (is) (is not) required to wear a NICTD visitor identification badge visible at all times while on NICTD Property. In consideration of the consent of NICTD to Applicant’s entry and presence upon NICTD Property, Applicant agrees and undertakes to: (1) Give advance notice to NICTD’s officer or agent signing this Agreement, or Applicant’s authorized representative, of each entry upon NICTD Property; (2) Accept direction from NICTD’s supervisory staff while on NICTD Property; (3) Assume all risk of injury, including death, and damage to property or property in Applicant’s custody or control arising directly or indirectly from Applicant’s presence on NICTD Property; an (4) It is understood by all parties that NICTD’s operations at, near or on NICTD’s Property or other property associated with this Agreement may involve some risk; and Applicant, as part of the consideration for this Agreement, releases and waives any right to request or demand damages for or on account of the loss of or damage to NICTD Property located at or near its facilities at the crossing of Grandview Ave in South Bend, IN, DOT Crossing #870392D., including the loss of or interference with service or use of the NICTD Property and irrespective of whether such loss or interference is attributable to the fault, failure or negligence of the Applicant or others. (a) The phrases “Loss” or “Damage” as used within this Agreement shall be interpreted by the parties to include any and all loss of, damage to, or destruction of any real property, personal property, or environment, including, without limitation, damage to or destruction of land, air, water, wildlife, or vegetation, and irrespective of whether the damaged or destroyed property is owned or otherwise possessed by NICTD, the Applicant, or a third party, and injury to or death of any person or persons whomsoever, including, without limitation, the parties to this Agreement, their agents, employees, customers, visitors, suppliers, and any and all non-parties who use, occupy, or otherwise utilized the assets associated with, or participate in the activities arising out of this Agreement. (b) The phrases “Claims”, “Settlements”, “Litigation” or “Related Expenses” shall include any and all losses, damages, costs, payments, and expenses of every kind and nature, including reasonable attorney fees and disbursements incurred by, or attributable to NICTD, other railroad parties lawfully utilizing NICTD Property, or NICTD’s assets, and their respective agents, subcontractors, successors, officers, and assigns as a result of claims, demands, actions, suits, proceedings, judgments, or settlements arising out of, in whole or in part, or in any way connected with NICTD Property, the subject matter of this Agreement, or the activities of the Applicant, its agents, or subcontractors at or near said NICTD Property. 11/29/21 11/30/21 7:00 HRS 16:00 HRS 7:00 HRS 16:00 HRS 2 (c) The phrase “Cause of Action” shall include all claims, litigation, settlements, and related matters associated with or arising under this Agreement, whether rightfully or wrongfully made, including, but not limited to, claims, litigations, settlements and/or related expenses associated with any loss or damage arising from the construction, operations, maintenance, use or removal of any assets associated with this Agreement, or property authorized for use by this Agreement, as well as matters associated with or arising under various workers compensation laws, the Indiana Tort Claims Act, the Federal Employees Liability Act, various federal and state environmental statutes, and any other federal or state laws or regulations application to the construction, operation, maintenance, use and/or removal of any assets associated with this Agreement including, but not limited to, NICTD Property. The foregoing examples are only partially illustrative of the types of causes of action contemplated for coverage by this Agreement, it being the parties’ mutual intent to include within the scope of the indemnification afforded under this Agreement a full, complete, comprehensive and unconditional grant of indemnity to the Applicant and NICTD with respect to any and all potential exposures risked by NICTD resulting from or arising out of this Agreement. (5) Applicant waives all right or alleged right to ask for or demand damages from NICTD, or other railroad parties lawfully utilizing NICTD Property or NICTD assets, or their respective agents, directors, employees, officers, or governing boards, that have occurred or may occur, to Applicant or Applicant’s property or with respect to any other loss or damage incurred by Applicant, or its officers, customers, visitors, suppliers, employees or agents, while in or upon NICTD Property or other property authorized for use in accordance with this Agreement, including loss of use of said NICTD Property or other NICTD property, and irrespective of whether said damages are due to the fault, failure or negligence of NICTD, or other parties lawfully using NICTD’s Property or assets. (6) Applicant shall hold harmless, defend, and indemnify NICTD, other railroad parties lawfully using NICTD’s Property or assets, and NICTD’s agents, employees, officials, or governing boards from any and all causes of action, as defined above, asserted by any parties and non-parties to this Agreement including, but not limited to, any causes of action for loss or damage due to negligence, misconduct, malfeasance, or misfeasance by NICTD resulting from or arising out of any aspect of NICTD’s participation in this Agreement, including, but not limited to, any causes of action in any way related to or associated with, or on account of, the construction, placement, attachment, presence, use, maintenance, repair, alteration, renewal, or relocation of NICTD Property or any property placed thereon or therein by Applicant, whether such loss or damage be suffered or sustained by NICTD directly or by its employees, patrons, or other person or corporations, including the Applicant, its employees, contractors, subcontractors, agents, visitors, customers, or suppliers who may seek to hold NICTD liable, and irrespective of whether said causes of action are caused by or resulting from, in whole or in part, the activities of NICTD, the other railroad parties lawfully using NICTD’s property or assets, or their respective agents, directors, employees, officials, or governing boards. Said defense and indemnification shall include, but is not limited to, reimbursement of NICTD for its claims, litigation, settlements and/or related expenses, which may be imposed upon, incurred by, or asserted against NICTD, or for which NICTD may be held or become liable. (7) NICTD agrees to promptly notify the Applicant in writing of any claim of which it becomes aware of which may fall within this indemnity provision, provided, however, that failure to notify Applicant in a prompt fashion shall not operate as a bar to Applicant’s indemnification obligations as defined in this section. (8) NICTD may elect to participate in the defense of any matter associated with this section at its own expense or may, at Applicant’s expense, employ attorneys of NICTD’s selection to appear and defend same on behalf of NICTD, its agents, employees, officers, directors or governing board. The Applicant shall not enter into any compromise or settlement of any claims, suits, actions or proceedings entrusted to it as Indemnitor without the consent of NICTD, which consent shall not be unreasonably withheld. (9) Notwithstanding anything in this Agreement to the contrary, the indemnities contained within this Agreement shall survive its termination for the later of (3) years’ time or the termination or settlement of all claims and/or litigation associated with same, including litigation of this Agreement. If any term or provision of this Agreement shall to any extent be held invalid or unenforceable, the remaining terms of this Agreement shall not be affected thereby, but shall be valid and enforceable to the fullest extent permitted by law. Applicant understands that it must present a signed copy of this Agreement upon demand of any NICTD official or police officer. Applicant understands that the authority to conduct activities authorized by this Agreement are subject to oral modification or restriction by any NICTD official or police officer. Applicant further understands that any NICTD official or police officer may revoke this Agreement for any reason and without prior notice. Applicant further agrees to comply with 3 all NICTD operating practices and federal safety requirements while on or about NICTD Property. Where necessary or appropriate pursuant to NICTD practices, Applicant shall procure and use, at Applicant’s sole cost, all necessary and appropriate safety equipment. Applicant shall timely reimburse NICTD for any fines incurred by NICTD arising from Applicant’s presence on NICTD Property. IN WITNESS OF UNDERSTANDING of the foregoing and as evidence that Applicant has READ THIS ENTIRE AGREEMENT AND UNDERSTANDS, ACCEPTS AND AGREES TO ITS TERMS, execution of said Agreement took place on the 23rd day of November, 2021. APPLICANT: 2. Permit. By signature below, I certify that I have verified the identity of Applicant and verified the authenticity of the Applicant’s signature. In consideration of the above indemnification agreement, permission is hereby granted to for and on behalf of ______________________________________, as its authorized representative, to enter upon NICTD Property for the purposes and at such times as stated above. NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT: By: Printed Name: Title: BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 11/18/2021 Name Becca Plantz Department Public Works BPW Date 11/23/2021 Phone Extension 5998 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer Officer Name Michael Patton BPW Attorney Attorney Name Clara McDaniels 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: Agreement Ease./Encroach Required Information Company or Vendor Name Northern Indiana Commuter Transport District New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name Concrete Curb and Channelization Median at Grandview Project Number 117-114 Funding Source Account No. Amount Terms of Contract Purpose/Description License Agreement and Permit and Indemnification Agreement with NICTD to install concrete median and channelization median at Grandview Ave crossing #870392D. 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: