Loading...
HomeMy WebLinkAboutRight-of-Way Occupancy Agreement – House Move 130 Park Ln. to 846 Park Ave. - Lykowski and Indiana Landmarks - TABLED 1 RIGHT-OF-WAY OCCUPANCY AND ENCROACHMENT AGREEMENT This Right-of-Way Occupancy and Encroachment Agreement (hereinafter the "Agreement") is made and entered this 2nd day of February 2022 (the “Effective Date”), by and between the City of South Bend, Indiana (the “City”), a municipal corporation, by and through its Board of Public Works, and Lykowski Construction, Inc., 23158 W. Ireland Road, South Bend, Indiana 46614, and Historic Landmarks Foundation of Indiana, Inc., d/b/a as Indiana Landmarks, with a local office at 801 W. Washington, South Bend, Indiana 46614 (collectively referred to herein as the “Permittees”), each a party and collectively the parties. Recitals WHEREAS, the Permittees desire to occupy and utilize portions of the City’s Right-Of- Way to transport a wood frame house (the “Property”) from a parcel of land located at 130 Park Lane, South Bend, Indiana 46601 (“Current Location”) to a parcel located at 846 Park Avenue, South Bend, Indiana 46616 (“New Location”), as more particularly described and depicted on Exhibits A and B, incorporated in this Agreement by reference and attachment; and, WHEREAS, the City has agreed to grant Permittees a temporary and non-exclusive privilege to occupy and use City Right-Of-Way to transport the Property using the route specified in Exhibit A (“Approved Route”), in accordance with and subject to the terms, conditions and limitations of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants, and obligations contained herein, and other good and valuable consideration received by each party, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing recitals are hereby incorporated into this Agreement in their entirety. 2. Grant of Permit. The City hereby grants to Permittees a temporary and non-exclusive personal privilege and permission to enter upon the City Right-Of-Way using the Approved Route to transport the Property to the New Location, as more specifically described and depicted in Exhibit A, and subject to the following terms and conditions: Permitees’ Responsibilities a. Provide the City with a pre-transport video of the Right-Of-Way areas to be utilized in the move. b. Restore or replace any streetlights damaged or destroyed streetlights along the transport route the same or better condition as existed prior to transport. 2 City’s Responsibilities a. 3. Term. This Agreement and the Permit granted to the parties hereunder shall commence as of the Effective Date and shall continue until delivery of the Property to the New Location. 4. No Interest in Land. Permittees understand, acknowledge and agree that this Agreement does not create an interest or estate in Permittees' favor in the City Right-Of-Way. The City retains legal possession of the full boundaries of its right-of-way and this Agreement merely grants to Permittees the personal privilege to occupy and use the City Right-of-Way as described above throughout the term of this Agreement. 5. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by Permittees under this Agreement shall in no event be construed to create an assignment coupled with an interest or any vested rights in favor of Permittees. Permittees shall expend any time, money or labor at Permittees' own risk and peril. 6. 6. Permanent Removal of Encroachments Upon Termination. At such time as this Agreement and the License herein granted to Permittees is terminated, Permittees shall, at the option of the City, remove, at Permittees's sole cost and expense, any and all encroachments owned or maintained by Permittees in the City Right-Of-Way. nt to the contrary notwithstanding, Permittees shall immediately remove, at its sole cost and expense, any such encroachments in the event that the City determines that such removal is necessary or convenient for the installation, repair or replacement o utilities or other public improvements in the City Right-Of-Way, or in the event that the City determines that any such encroachments interfere with pedestrian or vehicular traffic, public utilities, or constitute a safety hazard. Any replacement or repair of such encroachments shall be at the sole cost and expense of the Permittees. If the Permittees fails to exercise its duties under this paragraph, the City shall have the right to remove the encroachments or improvements and restore the City Right-Of-Way, the full and complete cost of which shall be borne by Permittees. Permittees covenants and agrees to reimburse the City its full cost and expense for any such removal and/or restoration. 7. Insurance. Permittees shall maintain at all times during the term of this Agreement, at Permittees' sole cost, a policy or policies of comprehensive general liability coverage on an occurrence basis from an insurance company licensed with the State of Indiana or other insurer approved by Permittees with at least Ten Million Dollars ($10,000,000.00) single limit coverage on all risks. Such policy or policies shall provide that the coverage afforded thereunder shall not be canceled, terminated or materially changed until at least thirty (30) days written notice has been given to the City. Permittees shall name the City as an additional named insured and shall furnish the City with a Certificate of Insurance, duplicate policies or certificates evidencing 3 insurance in force as required herein prior to transport of the Property using City Right- Of-Way. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. There shall be no endorsement or modification of this insurance to make it excess over 4 8. Compliance with Law. Permittees shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the Encroachment Area and the Permittees's use thereof. Permittees agrees and warrants that it has procured or shall procure any licenses, permits or like permission required by law, if any, to conduct or engage in the use of the Encroachment Area described herein, that Permittees will procure all additional licenses, permits or like permission hereinafter required by law during the term of this Agreement, and that Permittees will keep the same in full force and effect during the term of this Agreement. Permittees shall perform under this Agreement in accordance with all applicable legal requirements. 9. Indemnification. To the fullest extent permitted by law, Permittees agree to indemnify, defend and save the City, its officers, agents, servants, employees, boards and commissions harmless from and against: a. Damage to Permittees' Property. Any and all claims, loss or damage (including reasonable attorney's fees) to the Permittees' Property or any property belonging to or rented by Permittees, its officers, servants, agents or employees, which may be stolen, destroyed, or in any way damaged, by any cause whatsoever in accordance with the activities contemplated under this Agreement. b. Damage to Others. Any claims, suits, judgments, costs, attorney's fees, loss, liability, damage or other relief, including but not limited to Workers' Compensation claims, to any person or property in any way resulting from or arising out of the existence of this Agreement and/or the existence, maintenance, use or location of the City Right-Of-Way. In the event of any action against the City, its officers, agents, servants, employees, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 10. Breach and Limitation on Damages. If any party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party shall have the right to seek such administrative, contractual or legal remedies as may be suitable for such violation or breach; provided, however, that in no event shall the City be liable to Permittees for monetary damages of any kind relating to or arising from any breach of this Agreement, and that no action of any kind shall be commenced by Permittees against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of Permittees related to or arising from this Agreement and the City is the prevailing party in such action, the City shall be entitled to recover from Permittees reasonable interest and attorney's fees. 11. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be sufficient if personally delivered or mailed by certified mail, return receipt 5 requested, addressed as follows: To the City: Scott Krieger, Assistant City Engineer County-City Building, 227 W. Jefferson Blvd., 13th Floor, South Bend, IN 466001 To the Permitees: [INSERT NAME AND ADDRESS] [INSERT NAME AND ADDRES Notices mailed in accordance with the provisions of this paragraph shall be deemed to have been given on the third business day following mailing. Notices personally delivered shall be deemed to have been given upon delivery. 12. No Joint Venture or Partnership. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. 13. No Personal Liability. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of their execution, approval or attempted execution of this Agreement. 14. Joint and Collective Work Product. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and Permittees, and as such, this Agreement shall not be construed against any other party as the otherwise purported drafter of the same by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 15. Severability. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable, for any reason, the remainder of this Agreement shall remain in full force and effect. 16. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Indiana. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this Agreement shall be in the courts of applicable jurisdiction within St. Joseph County, Indiana. 6 17. References in Agreement. All references in this Agreement to the singular shall include the plural where applicable, and all reference to the masculine shall include the feminine and vice versa. If either reference shall be declared invalid, such decision shall not affect the validity of any remaining portion that shall remain in full force and effect. 18. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 19. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 20. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 21. Assignment. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto. The License granted herein is personal to Permittees. Any attempt to assign this License will automatically terminate the license privileges granted to Permittees hereunder. 22. Entire Agreement. This Agreement and its exhibits constitute the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. 7 23. Modification. This Agreement may be changed, modified or amended only by a duly authorized written instrument executed by the parties hereto. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in or writing herein or in a duly authorized and executed amendment hereof. SIGNATURE PAGE TO FOLLOW 8 IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized representative as of the day and year first above written. CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS _______________________________ Elizabeth A. Maradik, President _______________________________ Joseph R. Molnar, Vice President _______________________________ Gary A. Gilot, Member _______________________________ Jordan V. Gathers, Member _______________________________ Murray L. Miller, Member ATTEST: Laura Hensley, Interim Board Clerk 9 LYKOWSKI CONSTRUCTION, INC. By: Name: Its: HISTORIC LANDMARKS FOUNDATION OF INDIANA, INC., D/B/A INDIANA LANDMARKS By: ____________________________________ Name: ____________________________________ Its: ____________________________________ BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 2/3/2022 Name Scott Kreeger Department Public Works BPW Date 2/8/22 Phone Extension 9245 Required Prior to Submittal to Board BPW Attorney Attorney Name Clara McDaniels Dept. Attorney Attorney Name Purchasing Michael Schmidt 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: ROW Occupancy and Encroachment Agreement Ease./Encroach Required Information Company or Vendor Name Lykowski Construction, Inc. & Historic Landmarks Foundation of Indiana New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name N/A Project Number N/A Funding Source N/A Account No. N/A Amount N/A Terms of Contract Purpose/Description __ 130 Park Lane House Move Right-of-Way Occupancy and Encroachment Agreement 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: