HomeMy WebLinkAboutBIORENTENTION BASIN STAMP MAYOR SIGNATURE LICENSE AGREEMENT
FOR
BIORETENTION BASIN
THIS AGREEMENT, effective the \C‘4. day ofwr�s 2019 ("Effective
Date") is by and between DUKE ENERGY INDIANA, LLC, an Indiana limited
liability company and formerly named Duke Energy Indiana, Inc., and successor by
consolidation to Public Service Company of Indiana, ("Licensor"), and the CITY OF
JEFFERSONVILLE, an Indiana municipality("Licensee"),
WITNESSETH:
WHEREAS, Licensor is the owner of an approximately 3.298 acre parcel of real
estate which is described in Deed Book 192, Page 323 in the Office of the Recorder of
Clark County, Indiana, and commonly known as Licensor's "Jeffersonville 138 kV
Substation" ("DEI Property"); and
WHEREAS, for the purpose of constructing, operating and maintaining at the
expense of Licensee, a bioretention basin pursuant to Drawing No. 1 for Job No. 14032
prepared for Licensee by Jacobi, Toombs & Lanz, Inc. which is attached hereto as Exhibit
"A" and incorporated herein ("License Purpose"), Licensee desires the license and right
to use those portions of the DEI Property which are specified on "Exhibit A" ("Subject
Property"); and
WHEREAS, Licensor is willing to grant Licensee the license and right to use the
Subject Property for the License Purpose subject to the terms and conditions herein.
NOW, THEREFORE, in consideration of the promises of Licensor and Licensee
contained herein, Licensor and Licensee agree to and with each other as follows:
1. Licensor hereby grants to Licensee the license and right to use the Subject
Property for the License Purpose. Notwithstanding anything to the contrary contained in
this Agreement, Licensee shall not perform any activity within five (5) feet of Licensor's
substation underground grounding electrical grid. Licensee shall not make any other
modifications of the Subject Property without the prior written consent of Licensor. At
the termination of this Agreement and upon written notice to Licensee, Licensor shall
have the right (a) to have all or part of the License Purpose improvements removed by
Licensee at the expense of Licensee to the extent they are located upon the Subject
Property or (b) to retain all or part of the License Purpose improvements to the extent
they are located upon the Subject Property without compensation to Licensee, at which
time, title to such improvement, shall automatically pass to Licensor. If Licensor needs to
use any of the Subject Property for public utility facilities, upon written notice to
Licensee, Licensee shall modify the License Purpose improvements, at the expense of
Licensee, as may be necessary (as reasonably determined by Licensor) for such use by
Licensor.
2. This Agreement shall continue unless and until terminated by Licensee by
written notice to Licensor, or by Licensor as provided herein.
3. Licensee shall pay Licensor as rental for this license and right, the sum of
One Dollar ($1.00), the sufficiency of which is hereby acknowledged by Licensor and the
receipt of which is hereby waived by Licensor.
4. If in the exercise of this license and right, Licensee or its agents,
employees, invitees, contractors, or members of the general public using the License
Purpose improvements, damage the DEI Property or any facilities or other property of
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Licensor located on the DEI Property, Licensee shall reimburse Licensor for all
reasonable costs and expenses incurred by Licensor as a result of such damage including
the repair or replacement of the damaged property, and which are submitted to Licensee
in an itemized and written form.
5. Licensee shall release, indemnify and hold harmless, and shall defend
Licensor, from and against any claims, losses, damages, suits, appeals, costs, and
expenses including attorneys' fees, arising or alleged to arise out of, or in any way
connected with, the license and right granted to Licensee, Licensee's exercise of said
license and right, or the use of the Subject Property by Licensee or its agents, employees,
invitees, contractors, or members of the general public using the License Purpose
improvements, although caused in part by any act or omission, negligent or otherwise, of
Licensor or its agents, employees, invitees or contractors but excluding the sole
negligence or willful misconduct of Licensor or its agents, employees, invitees or
contractors.
6. This Agreement is personal to Licensee, and Licensee shall not have the
right to assign its rights or delegate its duties herein without the prior written consent of
Licensor. This license and right shall automatically be revoked and this Agreement
thereby terminated if Licensee ceases to use the Subject Property as provided herein.
7. At the termination of this Agreement and except as otherwise provided
herein, Licensee agrees to leave the Subject Property in as good a condition of repair as
the same is in at the effective date of this Agreement, normal wear and tear, and acts of
God excepted.
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8. Licensor shall have no duty to maintain the Subject Property for the
benefit of Licensee hereunder. Licensee shall construct, operate and maintain the License
Purpose improvements in a safe, good and workmanlike manner, and in compliance with
all applicable laws and regulations including but not limited to, maintaining the DEI
Property (including the Subject Property) free of trash and debris (resulting from the
License Purpose improvements).
9. Licensor makes no representation or warranty with respect to the condition
of the Subject Property or its fitness or availability for a particular use, and Licensor shall
not be liable for any latent or patent defect therein. Execution of this License by Licensee
shall represent that Licensee has inspected the Subject Property and accepts the condition
thereof for purposes of its duties under the term of this Agreement. Licensee shall also be
responsible at Licensee's expense for providing any and all security measures that may be
needed or desirable with respect to its license and right upon the Subject Property.
10. Licensee shall not prevent or interfere with Licensor's access to or use of
the Subject Property including, but not limited to, for the construction, operation and
maintenance of electric line and substation facilities.
11. In exercising this Agreement and right to use the Subject Property,
Licensee shall not acquire any land interest in Subject Property including, but not limited
to, an easement by estoppel or an executed license.
12. If Licensee fails to remedy a breach of any duty hereunder within thirty
(30) days from receipt of written notification of said breach from Licensor, Licensor shall
have the right to take whatever action Licensor deems necessary to remedy the breach
including but not limited to, correcting the breach and terminating this Agreement, and
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Licensee shall reimburse Licensor for all reasonable costs and expenses incurred by
Licensor in so acting and which are submitted to Licensee in an itemized and written
form.
13. This Agreement shall be governed by and interpreted under the laws of the
State of Indiana. If any part of the terms of this Agreement is adjudged to be contrary to
law by a court of competent jurisdiction, such terms shall in all other respects be and
remain legally effective and binding to the fullest extent permissible.
14. Licensee shall not permit any mechanic's lien to be placed upon the DEI
Property. Licensee shall obtain the release of any mechanic's lien as soon as possible;
provided, however, if said lien is not removed by Licensee within a reasonable period of
time, Licensor may obtain the release of the mechanic's lien and recover from Licensee,
any costs or expenses incurred in obtaining said release.
15. Within six (6) months from the Effective Date and at the expense of Licensee,
Licensee shall install three (3) concrete aprons and associated culverts, and perform ditch
grading, all as shown on Exhibit "A" ("Work"). With the Work, Licensee shall confine
its activities on the DEI Property to the area denoted on Exhibit "A" as the "Proposed 30'
x 365' Temp. Construction Easement A = 0.25 Acres" ("Work Area"). While
performing the Work on the Work Area, the Work Area shall be deemed part of the
Subject Property for purposes of the respective rights and duties of Licensor and Licensee
pursuant to this Agreement.
16. This Agreement constitutes the final written expression of all the terms of
the agreement between Licensor and Licensee and is a complete and exclusive statement
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of those terms and supersedes all prior negotiations, representations or agreements, either
written or oral, with respect to the subject matter of this Agreement.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this License Agreement
to be signed by their duly authorized representatives, effective as of the Effective Date.
CITY OF JEFFERSONVILLE, DUKE ENERGY INDIANA, LLC,
Licensee Licensor
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By: By:
Printed Name: k''`IA- IA 0 Of L. Printed Name: Kevin M. Jennings
Printed Title: '"i4\0.1 p C Printed Title: Manager, Land
Services Midwest Region
This Instrument Prepared By John B. Scheidler, Attorney At Law.
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