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HomeMy WebLinkAboutLicense Agreement for Temp. Use - Gardening Purposes 630 & 632 Harrison – Sunchoke Farms, LLC1316 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 June 27, 2023 Ms. Susan Greutman Sunchoke Farms, LLC 824 Lindsey St. South Bend, IN 46616 luczek4himkhotmail. com RE: License Agreement for Temporary Use Dear Ms. Greutman: At its June 27, 2023 meeting, the Board of Public Works approved the above referenced agreement for gardening purposes at 630 & 632 Harrison Ave. 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/ Theresa Heffner Theresa Heffner, Clerk Enclosures TH/lh ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT JORDAN V. GATHERS MURRAY L. MILLER LICENSE AGREEMENT FOR TEMPORARY USE This License Agreement for Temporary Use (this "Agreement") is made on June 27, 2023 (the "Effective Date"), by and between the City of South Bend (the "City"), acting by and through its Board of Public Works (the "Board"), and Sunchoke Farms, LLC, an Indiana limited liability company (the "Grantee") (each a "Party" and collectively the "Parties"). RECITALS A. The City, through its Board, owns in fee simple certain real property located at 630 & 632 Harrison Avenue within the corporate boundaries of the City, as more particularly described in attached Exhibit A (the "Property"). B. The Grantee wishes to use the Property for gardening purposes. C. On May 22 2023, by Ordinance No. 10931-23 the South Bend Common Council approved a use variance for Urban Agriculture for the Property. D. Upon the Grantee's request and in the interest of supporting thriving and well - maintained neighborhoods, the City desires to allow the Grantee to use the Property temporarily in accordance with the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and representations made in this Agreement, the legal adequacy of which are hereby acknowledged, the Board and the Grantee, agree as follows: 1. Temporary License. The Board hereby grants to the Grantee a non-exclusive, temporary license to access and use the Property for the limited purpose of planting, maintaining, and/or harvesting a garden, subject to the terms and limitations set forth in this Agreement (the "License"). 2. Term. This Agreement will be in effect from the Effective Date of this Agreement through December 31, 2028, unless otherwise terminated as set forth herein. 3. Termination. The Board, or its agent, may revoke and terminate the License immediately at any time and for any or no reason, upon written notice to the Grantee by an authorized representative of the City delivered to the Grantee at the address stated above. Upon receipt of the written notice of termination, which shall be presumed three (3) business days after the same has been deposited in the United States Mail, the Grantee will have one hundred and eighty (180) days to vacate the Property and remove all personal property therefrom. 4. Grantee's Representations. The Grantee represents and warrants to the City that (a) the Grantee is current on all real property tax obligations, with respect to any real property in the City owned by the Grantee; (b) the Grantee is not subject to any enforcement action with respect to building, code enforcement, or zoning violations of any kind with respect to any real property in the City owned by the Grantee; (c) the Grantee intends to continue to use the Property for the sole purpose of planting, maintaining, and harvesting a garden. This Agreement will be subject to immediate termination pursuant to Section 3 above in the event that any of the Grantee's foregoing representations is determined to be untrue as of the Effective Date or ceases to be true at any time after the Effective Date. 5. Permitted Use,• Restrictions. The Grantee may use the Property for ordinary gardening activities, including, but not limited to, planting grass, plants, and placing temporary gardening appurtenances (such as plant stakes or cages). The Grantee may not construct or install any permanent improvement of any kind or description, including but not limited to any building, solid parking or patio surface, fencing, trees, or shrubbery (collectively, "Improvements") on the Property without the City's prior consent in writing. Any such Improvements installed or constructed without the City's prior written consent shall be immediately removed upon the City's demand. Grantee's failure to remove such Improvements within ten (10) days of the City's demand shall constitute a breach of this Agreement, and this Agreement shall automatically terminate. In the event the City consents to the Grantee's installation or construction of Improvements on the Property (the "Permitted Improvements"), upon termination of this Agreement, the Grantee will promptly remove the Permitted Improvements upon the City's demand, without any right to compensation or reimbursement for the value of the Permitted Improvements or the costs of removing the Permitted Improvements. The Parties mutually acknowledge and agree that the City will have (a) no liability for any costs associated with the installation, construction, maintenance, repair, or removal of any Permitted Improvements on the Property and (b) upon the revocation of the License or the termination of this Agreement, no obligation to compensate or reimburse the Grantee for the value of any Permitted Improvements to the Property or the value of maintenance activities conducted by the Grantee. All such costs will be the Grantee's responsibility at all times, including after the termination of this Agreement. Notwithstanding the foregoing, under no circumstances are political or advertising signage allowed at the Property. Grantee shall remove such signage within twenty-four (24) hours of the City's demand, otherwise, the City shall be entitled to remove it without liability to the Grantee or any third party. Further, if the City makes a demand to Grantee for the removal of political or advertising signage on more than one occasion, the City may terminate this Agreement immediately in accordance with Section 3 hereof. The City appoints the Property Development Manager in the Department of Community Investment to act on the City's behalf in regard to Section #5 of this Agreement. 6. Maintenance; Restoration. The Grantee, at the Grantee's sole expense, will at all times maintain and keep in good order and condition the Property and any permitted Improvements on the Property, including, but not limited to, grass cutting, tree and shrub trimming, and clearing snow and ice from all sidewalks or other public rights -of -way on or abutting the Property, including any tree lawn area, in accordance with applicable zoning, building, property maintenance, and other regulations and authorities. In the event the Grantee (or any of the Grantee's licensees or invitees) disturbs or damages any part of the Property, the Grantee will promptly restore such area(s) to substantially the same condition that existed immediately prior to such disturbance or damage, to the City's satisfaction as determined in the City's sole discretion. 7. Security. The Grantee understands and agrees that the City shall not be liable for any loss, damage, destruction, or theft of any of Grantee's personal property, including, but not limited to, the fruit or vegetables or other crops grown or harvested by Grantee, or any bodily harm or injury that may result from Grantee's use of the Property. 8. Qpmpliance. The Grantee will, at the Grantee's sole expense, observe and comply with all applicable statutes, laws, ordinances, requirements, orders, rules, and regulations of all governmental authorities in relation to the use of the Property by the Grantee (or any of the Grantee's licensees or invitees). Grantee understands and agrees that it will secure in its own name and at its own expense all other permits and authorizations, if any, necessary for its use of the Grantee in accordance with the terms of this Agreement. 9. Title; No Lease or Easement. The City and the Grantee mutually acknowledge and agree that this Agreement does not constitute a lease of or easement over the Property. This Agreement grants the Grantee no interest of any kind in the Property except the License granted above, which is revocable in accordance with the terms of this Agreement. The Parties mutually acknowledge and agree that the Grantee's use of the Property under this Agreement will not be deemed to constitute a disposal of the Property by the City within the meaning of Ind. Code 36-1- 11. 10. Future City Use. The Grantee acknowledges that the Property is part of the City's plans for neighborhood revitalization and that the City may terminate this Agreement and exercise control over the Property in order to meet the goals of such plans. The Grantee will take no action and make no statement or representation inconsistent with the Grantee's acknowledgment that the City is the sole owner of the Property. 11. Liens. The Grantee will not place or suffer the placement of any liens or encumbrances on the Property at any time, including with respect to the installation, construction, or removal of any Improvements or Permitted Improvements on the Property. In the event any lien or encumbrance is placed on the Property, the Grantee will promptly pay or otherwise satisfy the same. The Grantee agrees that the City will have no liability for any such liens or encumbrances. 12. Property Taxes. The Grantee will be responsible for the payment of all real property taxes and assessments, of any nature whatsoever (the "Taxes"), if any, which are levied against the Property for all periods during the term of this Agreement. The City will have no liability for any Taxes associated with the Property, whether accruing during or after the term of this Agreement, and nothing in this Agreement will be construed to require the proration or other apportionment of Taxes resulting in the City's liability therefor. 13. Hazardous Materials. The Grantee will not cause or permit, knowingly or unknowingly, any hazardous material to be brought or remain upon, kept, used, discharged, leaked, or emitted upon the Property, including but not limited to chemicals that are not approved for household gardening use, or automotive oil or fluids. 14. Insurance. The Grantee will maintain or cause to be maintained at all times liability insurance covering the Property in a form and an amount acceptable to the City, with such policy naming the City as an additional insured. Upon the City's demand from time to time, the Grantee will produce evidence of such insurance. 15. Indemnification. The Grantee will indemnify and hold the City (and its officials, boards, employees, agents, and contractors) harmless from and against any and all claims, costs, damages, and liabilities of any kind, including reasonable attorneys' fees and costs, resulting from damage or injury to any person or property upon the Property, the Grantee's use of the Property under the License, or otherwise in connection with this Agreement. If any action is brought against the City (or its officials, boards, employees, agents, or contractors) in connection with Grantee's use of the License Area, Grantee agrees to defend such action or proceedings at its own expense and to pay any judgment rendered therein. 16. Reservation of Rights. The City reserves for itself the free use of the Property in any manner that does not substantially interfere with or obstruct the Grantee's license under this Agreement. 17. InteC2retation; Governing Law. Both Parties having participated fully and equally in the negotiation and preparation of this Agreement, this Agreement will not be more strictly construed, nor will any ambiguities in this Agreement be presumptively resolved, against either Party. This Agreement will be governed and construed in accordance with the laws of the State of Indiana. 18. Assignment. The Grantee may not assign this Agreement or the License granted herein to any other person or party without the City's prior written consent. Any attempt by the Grantee to assign or otherwise convey any interest in this Agreement will be void and of no force or effect unless the Grantee first obtains the City's written consent. 19. Entire Agreement; Amendment. This Agreement embodies the entire agreement between the City and the Grantee and supersedes all prior discussions, understandings, or agreements, whether written or oral, between the City (or any representative of the City) and the Grantee concerning the Grantee's use of the Property. This Agreement may be amended only by separate writing, signed by the City and the Grantee. 20. Waiver. Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. 21. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Indiana. 22. Authority; Counterparts; Signatures. Each undersigned person certifies that he or she is duly authorized to bind his or her respective Party to the terms of this Agreement. This Agreement may be separately executed in counterparts by the City and the Grantee, and the same, when taken together, will be regarded as one original agreement. Electronically transmitted signatures will be regarded as original signatures. 23. Acknowledgment. The Grantee acknowledges that she has read and fully understands this Agreement (including its Exhibits) and has voluntarily agreed to all of its terms after having a reasonable opportunity to consult with independent legal counsel of her selection. 24. City's Agent. The Grantee appoints the Property Development Manager in the Department of Community Investment to act on the City's behalf in all matters related to this Agreement. SIGNATURE PAGE FOLLOWS IN WITNESS WHEREOF, the parties have signed this Temporary Use Agreement to be effective as of the Effective Date. CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS '�-7TL Elizabeth A. Maradik, President Gary A. Gilot, Member Murray L. Miller, Member SUNCHOKE FARMS, LLC an Indiana limited liability Mztn Greutman, Manager Date: 6- 7.-Z3 Joseph R. Molnar, Vice President Jordan V. Gathers, Member �4 Attest: Theresa M. Heffiier, Clerk Date: June 27, 2023 i' EXHIBIT A Description of Property Address: 630 Harrison Parcel ID: 018-1068-2895 Legal Description: Lot 38 Cushing & Lindsey Address: 632 Harrison Parcel ID: 018-1068-2894 Legal Description: Lot 37 Cushing & Lindsey BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 6/15/23 Name Joseph Molnar Department DCI BPW Date 6/27/23 Phone Extension 6022 Review and Approval Required Prior to Submittal to Board Diversity Compliance ❑ Officer Name and Inclusion Officer BPW Attorney ❑ Attorney Name Michael Schmidt Dept. Attorney ® Attorney Name Purchasing ❑ Danielle Campbell Weiss 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 N Other: License Agreement n Ease./Encroach Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Amount of ❑ El Previous Amount Current Percent of Change: New Amount Information U Yes U If Yes, Approved by Purchasing ❑ No ❑ WBE Completed E-Verify Form Attached ❑ Yes No License Agreement for Temporary Use for gardening purposes Sunchoke Farms is a local company which grows food on vacant lots in the Near Northwest Neighborhood. Sunchoke approached the City with the request to grow a garden on two city owned parcels. This agreement allows them to do so while granting the City authority to revoke the access agreement if at a time another development is proposed. For Change Orders Only Increase $ Decrease ($ ) Increase % Decrease ( %) Increase Total Percent of Change: Decrease ( %) Time Extension Amount: New Completion Date: