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HomeMy WebLinkAboutLicense Agreement - Long Term Use of Right-of-Way Through, Under and Adjacent to Niles Ave – University of Notre Dame du Lac  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 December 21, 2021 Office of Utilities and Maintenance Office of General Counsel Facilities, Design and Operations University of Notre Dame University of Notre Dame 204 Main Building 100 Facilities Building Notre Dame, IN 46556 Notre Dame, IN 46556 Attn: Mr. John Lloyd, Esq. RE: License Agreement Dear Mr. Lloyd: At its December 21, 2021 meeting, the Board of Public Works approved the above referenced agreement for the long-term use of the right-of-way through, under and adjacent to Niles Ave. between the vacated Sorin St. and Corby Ave. for installation and maintenance of the electricity lines related to the Hydroelectric Facility. Enclosed please find the original of the agreement for your signature. Please sign and return the original agreement to lhensley@southbendin.gov. Please retain a copy for your records. If you have any further questions regarding this matter, please call this office at (574) 235-9251. Sincerely, /s/ Laura Hensley/Acting Clerk Enclosures INTER-OFFICE MEMORANDUM Department of Law City of South Bend 227 W Jefferson Blvd TO: Board of Public Works, Laura Hensley, Clara McDaniels FROM: Sandra Kennedy, Corporation Counsel SUBJECT: License Agreement – University of Notre Dame du Lac DATE: December 15, 2021 Members of the Board, Ms. Hensley, and Ms. McDaniels: The University of Notre Dame du Lac (“Notre Dame”) reached out to the City regarding the issues it was experiencing in obtaining easements to install electric transmission lines between Notre Dame and its hydroelectric plant at Seitz Park. Most of the transmission line will be installed along the City’s Riverwalk right of way, but, as you may know, some portions of the Riverwalk are not held in fee simple by the City. Notre Dame particularly required access to an area between vacated Sorin Street and Corby behind the Madison Center and the dog park. AEP obtained an easement through that portion of the Riverwalk using the condemnation process; however, the owner objected to Notre Dame’s “piggybacking” on AEP’s use. In its Ground Lease for the property on which the hydroelectric facility sits, the City agreed to assist Notre Dame with the procurement of licenses reasonably necessary in connection with the operation of the facility. This license is reasonably necessary. We ask that the Board approve the License Agreement, which will be countersigned and recorded by Notre Dame. Please return the document to: Office of General Counsel UNIVERSITY OF NOTRE DAME 204 Main Building Notre Dame, Indiana 46556 Attn: John Lloyd, Esq. I will request that Mr. Lloyd provide us with a fully executed copy. Thank you. LICENSE AGREEMENT This License Agreement (“License”) is made and entered into this ___ day of December, 2021, by and between the City of South Bend, Indiana, acting by and through its Board of Public Works (“City”), and the University of Notre Dame du Lac, an Indiana nonprofit corporation (“University”). WHEREAS, the City and the University have worked collaboratively on the development of a hydroelectric facility on the St Joseph River in downtown South Bend, Indiana (the “Project”); and WHEREAS, as part of the Project, the City has leased certain real property to the University where the hydroelectric facility is located. The City has also agreed to assist the University in other related aspects of the Project, including the route for the transmission of the electricity created by the hydroelectric facility (the “Transmission Line”). The City has agreed to allow the University to run the Transmission Line within the City’s right-of-way adjacent to and under Niles Avenue between the vacated Sorin Street and Corby (the “Work”). The approximate area of the Work is depicted in Exhibit A (the “Property”), attached hereto and incorporated herein by reference; and WHEREAS, the City agrees to permit the University and its affiliates and contractors to enter upon the Property to conduct the Work and to perform its other obligations as set forth herein; and WHEREAS, in consideration of the right to conduct the Work, the University agrees to indemnify, defend and hold the City harmless for personal injuries (including death) or property damage that might result from the installation, use, or maintenance of the Transmission Line; NOW, THEREFORE, in consideration of the parties’ mutual covenants and undertakings, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1.This License shall be effective as of November 1, 2021 and continue for such time that the University operates the Project (the “Term”). During the Term, the City hereby grants the University a right, and non-exclusive, indefinite license to enter onto and remain upon the Property solely for the purposes set forth herein. 2.The University, at its expense, shall comply, and cause its contractors to comply, as applicable, with all laws, orders and regulations of any governmental authorities and with any directive of any public officer with respect to activities permitted hereunder. 3. The University shall not permit or suffer any lien to attach to the Property as a consequence of the exercise of University’s rights under this License, and if any such lien arises or accrues against the Property, the University shall immediately effect the removal thereof at no cost 21st. or expense to the City. University will not commit waste upon the Property and will repair and restore any damage to the Property arising from its activities upon the Property. 4.University agrees to indemnify, defend and hold harmless the City, its respective agents, servants, employees, contractors, affiliates and representatives from any and all liability, loss, expense, damage, judgment or settlement which they or any of them may suffer, sustain or incur as a result of any claims, demands, costs, actions, causes of actions, damages or judgments including, without limitation, reasonable attorneys’ fees, asserted against or incurred by or on behalf of the City, arising out of or resulting from the activities of the University or its contractors on the Property relating to the Transmission Line. The University’s indemnification obligations hereunder do not include (a) any liability, loss, expense, or damage which is the result of or arises out of the sole negligence of the City, its agents, servants, employees, trustees, officers, contractors, affiliates or representatives; or (2) to the extent any liability, loss, expense, or damage is caused by the negligence of another party. 5.In the event that the University fails to comply with or perform any one or more of the covenants, terms and conditions to be complied with or performed by it under this License or is otherwise in default hereunder, then, and in any such event, the City shall have the right to seek equitable relief, including, without limitation, specific performance to enforce compliance with and performance of the covenants, terms and conditions to be complied with or performed by University hereunder. Further, if University fails to comply with any obligation hereunder, the City shall be permitted (but not obligated) to perform such obligation for and on behalf of University, and University shall immediately reimburse the City for such costs and expenses. The failure of the City to bring action based upon any breach hereof by University shall not be deemed nor shall it constitute a waiver of any of the terms, covenants or conditions of this License. 6. All notices which are required or may be given pursuant to the terms of this License shall be submitted to the offices identified below. Notices and communications hereunder shall be deemed to have been made three (3) business days after being deposited in the United States Mail if given by registered or certified mail, return receipt requested, postage prepaid and addressed to the party to receive such notice or communication at the address given below, or such other address as may hereafter be designated in writing. The City: Executive Director Department of Public Works 1300N County-City Building 227 West Jefferson Boulevard South Bend, Indiana 46601 With a copy to: Corporation Counsel 1200S County-City Building 227 West Jefferson Boulevard South Bend, Indiana 46601 University: Office of Utilities and Maintenance Facilities, Design and Operations UNIVERSITY OF NOTRE DAME 100 Facilities Building Notre Dame, Indiana 46556 With a copy to: Office of General Counsel UNIVERSITY OF NOTRE DAME 204 Main Building Notre Dame, Indiana 46556 7.This License may not be assigned, sublicensed or otherwise transferred by the University without the prior written consent of the City, which may be withheld in the City’s sole discretion. Subject to this paragraph, this License shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. 8.This License shall be governed by, and construed in accordance with, the laws of the State of Indiana. Any dispute arising hereunder shall be resolved exclusively in the courts of the State of Indiana in St. Joseph County. The parties hereby irrevocably consent to jurisdiction and venue of said courts. 9.This License may not be changed or modified, except by an agreement in writing signed by the party sought to be charged with such change or modification. (Signature Pages Follow) IN WITNESS WHEREOF, the parties have executed this License on the day and year first above written. University of Notre Dame du Lac By _________________________________ (Signature) Trent A. Grocock (Printed Name) Its Vice President, Finance (Title) STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, a Notary Public in and for said County and State, personally appeared Trent A. Grocock, the Vice President for Finance of the University of Notre Dame du Lac, who, having been duly sworn, acknowledged the execution of the foregoing instrument for and on behalf of such entity as such officer or other representative. WITNESS my hand and Notarial Seal this___day December 2021. _______________________________ Notary Public _______________________________ Notary Public (Printed) My Commission Expires: My County of Residence: ______________________ ________________________________ 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. John Lloyd This instrument prepared by John Lloyd (#16784-71), Associate General Counsel, University of Notre Dame, 203 Main Building, Notre Dame, Indiana, 46556. When recorded return to: University of Notre Dame, 203 Main Building, Notre Dame, Indiana, 46556. Exhibit A Property description, map, etc. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date December 15, 2021 Name Sandra Kennedy Department Legal BPW Date December 21, 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 University of Notre Dame du Lac 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 use of ROW through, under, and adjacent to Niles Ave. between vacated Sorin St. and Corby for installation and maintenance of a electricity transmission line relative to the hydroelectric facility. 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: