Loading...
HomeMy WebLinkAboutROW Occupancy Agreement - House Move 130 Park Ln. to 846 Park Ave. – Lykowski Const., Inc. & Indiana Landmarks  ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT JORDAN V. GATHERS 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 February 22, 2022 Mr. Tim Lykowski Historic Landmarks Foundation of IN, Inc., Lykowski Construction, Inc. d/b/a Indiana Landmarks 23158 W. Ireland Rd. Mr. Todd Zeiger South Bend, IN 46614 801 W. Washington timlykowski@aol.com South Bend, IN 46614 tzeiger@indianalandmarks.org RE: Right-of-Way Occupancy and Encroachment Agreement Dear Mr. Lykowski: At its February 22, 2022 meeting, the Board of Public Works approved the above referenced agreement for a house move from 130 Park Lane to 846 Park Ave., South Bend. Enclosed please find a copy of the agreement for your records. If you have any further questions, please call this office at (574) 235-9251. Sincerely, /s/ Laura Hensley/Acting Clerk Enclosures 1 RIGHT-OF-WAY OCCUPANCY AND ENCROACHMENT AGREEMENT This Right-of-Way Occupancy and Encroachment Agreement (hereinafter the "Agreement") is made and entered this 22nd 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, 1201 Central Avenue, Indianapolis, Indiana 46202 (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 919 Riverside Drive, South Bend, Indiana 46616 (“New Location”), as more particularly described and depicted on Exhibits A and B, incorporated herein 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. Lykowski Construction, Inc. letter dated November 4, 2021 to the City Board of Public Works, part of Exhibit A, is incorporated in this Agreement by reference and attachment. 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 described and depicted on Exhibit A, and subject to the following terms and conditions: Permittees’ Responsibilities a. Provide the City with pre- and post-transport video and photos and video of the truck route area for damage assessment. Permittees will provide City with a written summary of existing damage for City’s confirmation and written concurrence. 2 b. Provide the City a detailed traffic control maintenance plan indicating locations of barricades, road closure signs, etcetera. The Permittees will be responsible for implementing the plan following receipt of City Engineering written approval. c. Restore or replace City Property over and above pre-existing damage as documented in Section 2 a above caused during transport activities, including but not limited to: i. Streetlights - Permittees acknowledge and understand that the streetlights along Leeper Park are of historical significance. Accordingly, Permittees agree that if replacement is needed due to damage caused during transport, it will be with the streetlights described and depicted on Schedule B, matching existing light fixture colors. ii. Curbs, curb ramps, sidewalk, signage, to the same or better condition than existed prior to transport. iii. Permittees will utilize a certified arborist to trim any trees that need to be trimmed along the Approved Route. Permittees will not commence any tree trimming activities until they have coordinated the activities with the City Forrester. The Permittees agree to make repairs or replacements within 90 days of the date of damage. If the Permittees fail to complete the repairs or replacements within the aforementioned timeframe, the City shall have the right to make such repairs or replacements, the full and complete cost of which shall be borne by the Permittees. Permittees covenant and agree to reimburse the City its full cost and expense for any such repairs or replacements. If the Permittees provide the City with substantiation showing they are unable to complete the repairs or replacement within the 90-day timeframe due to conditions beyond their control, the City agrees to work with the Permittees to reach a mutually acceptable extended repair/replacement date(s) prior to self-performing the repairs/replacements. d. Immediately reinstall any stop signs removed during the house move transport once the house has vacated the area where the stop sign was located. e. Provide no parking signage along Lafayette Boulevard and Riverside Drive a minimum of 48 hours prior to the start of the house move transport. City’s Responsibilities a. Assist in the traffic control process by providing vehicles to redirect traffic during the house move transport. 3. Term. This Agreement and the Permit granted to the parties hereunder shall commence as of the date the Permittees commence any activities on or to City Property, real and personal, related to the Permittees’ responsibilities under this Agreement, and shall 3 continue until the completion of transport of the Property to the New Location and full restoration and/or replacement of damaged City property. 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, 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. Insurance. Permittees shall maintain at all times during the term of this Agreement , at Permittees' sole cost and expense, the following insurance policies: a. Comprehensive General Liability- Coverage on an occurrence basis from an insurance company licensed with the State of Indiana with at least a $5,000,000.00 combined single limit coverage on all risks. b. Workmen’s Compensation – Statutory State of Indiana Employer’s Liability - $100,000.00 c. Auto Liability – Bodily Injury and Property Damage combined single limit- $1,000,000.00. The City shall be named as an additional named insured on the Commercial General Line insurance policy Certificate of Insurance and Permittees shall provide the City with a Certificate of Insurance evidencing the same prior to the commencement of the activities contemplated under this Agreement. 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 other available insurance. Alternatively, if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the City. 7. Compliance with Law. Permittees shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the activities contemplated under this Agreement. Permittees agree and warrant that they have procured or shall procure any licenses, permits or like permission required by law, if any, to conduct or engage in the Agreement activity, 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 as of effective date. 4 8. 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. 9. 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. 10. 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 requested, addressed as follows: To the City: Kara Boyles, City Engineer County-City Building, 227 W. Jefferson Blvd., 13th Floor, South Bend, IN 46601 To the Permitees: Lykowski Construction, Inc., 23158 W. Ireland Road South Bend, Indiana 46614 J. Marshall Davis, President Indiana Landmarks 5 1201 Central Avenue Indianapolis, Indiana 46202 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 6 19. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 20. 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. 21. 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. 22. 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) 7 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. February 22, 2022 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 2/14/2022 Name Scott Kreeger Department Public Works BPW Date 2/22/22 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: