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Home My WebLink AboutMOU - ROW Encroachment for Mural - Early Bird Eatery, LLC 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 September 13, 2022 Ms. Jennifer Stone The Early Bird Eatery / Four Stones, LLC 917 Leland Ave. South Bend, IN 46616 jenn@theearlybirdeatery.com RE: Memorandum of Understanding Dear Ms. Stone: At its September 13, 2022 meeting, the Board of Public Works approved the above referenced memorandum for the right-of-way encroachment for the mural on the front of the retail space as well as the long-term maintenance and use of mural. Enclosed please find a copy of the MOU for your records. If you have any further questions, please call this office at (574) 235-9251. Sincerely, /s/ Theresa Heffner Theresa Heffner, Clerk Enclosures TH/lh RIGHTS OF WAY ENCROACHMENT MEMORANDUM OF UNDERSTANDING This Rights-of-Way S i g n E n c r o a c h m e n t M e m o r a n d u m o f U n d e r s t a n d i n g ( h e r e i n a f t e r the "Agreement") is made and entered into this 23 day of August 2022 (the “Effective Date”), by the City of South Bend, Indiana (the “City”), by and through its Board of Public Works (Collectively the “Licensor”) and the Early Bird Eatery, LLC (the “Early Bird”)., 117 E. Wayne Street, South Bend, Indiana, 46601 (hereinafter referred to as the “Licensee”) (each a “Party” and collectively referred to as the “Parties”). Recitals WHEREAS, the City of South Bend (the “City”), acting by and through its Board of Public Works, owns real property commonly known as the Wayne Street Parking Garage, 121 E. Wayne Street, South Bend, Indiana 46601 (“City Property”); and WHEREAS, the Licensee is one of the ground floor shops connected to the City Property; and WHEREAS, the Licensee desires to install a mural on the Wayne Street facade of the Wayne Street Garage, a portion of which will encroach onto the City Property, as depicted on Exhibit A; and WHEREAS, the City is willing to allow the Licensee to install the mural subject to compliance with the terms and conditions 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 License. The City hereby grants to Licensee a temporary and non-exclusive permission to install the mural, as described and depicted on Exhibit A, on the City Property and subject to the following: a.Maintenance for all portions of the mural shall be the responsibility of the Licensee. b.City recognizes that by acknowledging the use of the entire facade area of the garage in sign area calculation, future signs on the facade may be prohibited. c.If the Licensee fails to properly maintain the mural or falls into disrepair, as determined by the City, the City retains right to paint over or remove the portions of the mural which are on City Property. d.This MOU only provides permission related to this specific mural design, dimensions, and color, any new mural, or modifications to the existing mural, will need prior written approval from the City. Term, Termination and Restoration. This Agreement and the License granted to Licensee hereunder shall commence as of the Effective Date and shall continue until such time as either party provides the other with a written Notice of Termination of this Agreement. If the City provides the Licensee with written Notice of Termination, the Licensee agrees to promptly restore the City property to the same or better condition that existed prior to the installation of the encroachment QRUPDO ZHDU DQG WHDU H[FHSWHG. No Interest in City Property. Licensee understands, acknowledges and agrees that this Agreement does not create an interest or estate in Licensee's favor in the City Property. The City retains legal possession of the full boundaries of its Property and this Agreement merely grants to Licensee the personal privilege to use the Encroachment Area described above throughout the term of this Agreement. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by Licensee on or within the Encroachment Area, this Agreement shall in no event be construed to create an assignment coupled with an interest or any vested rights in favor of Licensee. Licensee shall expend any time, money or labor on or in the Encroachment Area at Licensee's own risk and peril. Limited Scope of License. The License granted to Licensee is limited in scope to the installation of the mural, as depicted and described on Exhibit A. Licensee shall not have the right to expand the Encroachment Area or alter or change Licensee's use of the Encroachment Area without the City's prior written consent. Non-Transferability of License. The License granted to Licensee by this Agreement is a mere personal privilege granted by the City to Licensee and is neither transferable nor assignable by Licensee without the City's prior written consent. Compliance with Law. Licensee shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the Encroachment Area and the Licensee's use thereof. Licensee 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 Licensee will procure all additional licenses, permits or like permission hereinafter required by law during the term of this Agreement, and that Licensee will keep the same in full force and effect during the term of this Agreement. Licensee shall perform under this Agreement in accordance with all applicable legal requirements. Indemnification. To the fullest extent permitted by law, Licensee agrees to indemnify, defend and save the City, its officers, agents, servants, employees, boards and commissions harmless from and against: DDamage to Licensee's Property. Any and all claims, loss or damage (including reasonable attorney's fees) to the Licensee's encroachment or any property belonging to or rented by Licensee, its officers, servants, agents or employees, which may be stolen, destroyed, or in any way damaged, by any cause whatsoever. 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 Licensee's encroaching improvements on the City Property. 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. c.Mechanic's Lien. Any loss, liability, claim or suit arising from the foreclosure, or attempted foreclosure, of a mechanic's or materialmen's lien for goods delivered to Licensee or work performed by or for Licensee upon or at the Encroachment Area or Licensee's property. Such indemnification shall include the City's reasonable attorney's fees incurred in connection with any such loss, claim or suit. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. Breach and Limitation on Damages. If either 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 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Authorized Signatories. Each party represents and warrant to the other that (1) the persons signing this Agreement are authorized signatories for the entities represented, and (2) no further approvals, actions or ratifications are needed for the full enforceability of this Agreement. [Signatures appear on the following pages] 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. EARLY BIRD EATERY, LLC __________________________________ (Signature) _________________________________ (Printed Name and Title)September 13, 2022 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 08/19/2022 Name Joseph Molnar Department DCI BPW Date 09/13/22 Phone Extension 6022 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer Officer Name BPW Attorney Attorney Name Clara McDaniels Dept. Attorney Attorney Name Danielle Campbell Weiss 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 Park Board of the City of South Bend New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name MOU with Early Bird Eatery Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Early Bird Eatery desires to place a mural on the front of the their retail space. The MOU establishes that the City will grant the use of their sign allotment for the larger parking garage to Early Bird for the purposes of the mural. The MOU also clarifies long term maintenance and use of the mural. 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: MOU X