Cross Reference: Instrument No. A State Parcel No Parcel: TEMPORARY CONSTRUCTION EASEMENT AGREEMENT

Transcription

1 Cross Reference: Instrument No. A Project: 92TU State Parcel No Parcel: Date: Version: TEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (this "Agreement") made this day of, (the "Effective Date"), by and between THE HAMILTON COUNTY COMMISSIONERS, THE CITY OF NOBLESVILLE and THE TOWN OF FISHERS, collectively ("Grantor") and CWA AUTHORITY, INC. ("Grantee"). WITNESSETH: WHEREAS, Grantor is the owner in fee simple of the real property more particularly described on Exhibit A attached hereto and incorporated by reference herein (the "Grantor Parcel"); WHEREAS, Grantee owns and operates a sanitary sewer system (the "System"); and WHEREAS, Grantor desires to grant to Grantee, and Grantee desires to obtain from Grantor, a Temporary Construction Easement under, through, on, in, across and over that certain portion of the Grantor Parcel more particularly described on Exhibit B attached hereto and incorporated by reference herein (the "Easement Area") in order to facilitate the construction, maintenance, operation, repair and/or replacement of certain sanitary sewer facilities that will serve the Grantor Parcel, subject to the terms and conditions set forth herein. NOW THEREFORE, in consideration of the above matters, all of which are incorporated herein by reference, the mutual covenants herein contained, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. TEMPORARY CONSTRUCTION EASEMENT. Subject to the terms and conditions set forth herein, Grantor hereby grants, creates, declares, makes and conveys to Grantee, and Grantee's agents, employees and contractors, a Temporary Construction Easement under, through on, in, across and over the Easement Area (the "Temporary Construction Easement") as is necessary for Grantee, its agents, employees and contractors to erect, construct, install, reconstruct, renew, maintain, operate, continue, inspect, patrol, replace, repair, and service certain sanitary sewer facilities as described on those certain

2 project plans and specifications described on Exhibit C attached hereto and incorporated herein by reference (the "Project Plans"), and all appurtenant structures including, but not limited to, main, submain, local, lateral, outfall, force, and interceptor sewers and all other necessary or useful equipment or appurtenances used as part of the System for the collection, carriage, treatment, purification and disposal of liquid and solid waste, sewage, night soil and industrial waste (collectively, the "Sanitary Sewer Improvements"), together with the following rights granted to Grantee in connection with its exercise of Grantee's rights pursuant to the Temporary Construction Easement: (i) the right to stage and store vehicles, construction machinery, equipment, materials and supplies in, on, and over the Easement Area, and (ii) the right of ingress and egress in, upon over and across the Easement Area and portions of the Grantor Parcel as necessary. 2. EASEMENT RIGHTS. The rights granted to Grantee pursuant to the Temporary Construction Easement shall be exercised by Grantee at all times in a reasonable manner. Grantor hereby agrees that Grantee is not, as a condition of the Temporary Construction Easement, required to improve the Easement Area. 3. RIGHTS RETAINED BY GRANTOR. Grantor and those claiming through Grantor reserve the right of use of the Easement Area for any legal purposes not inconsistent with this Agreement; however, Grantor and those claiming through Grantor shall not create, transfer or grant any indenture, easement, license or other property interest affecting the Easement Area to a third party and shall not place or construct, or cause or allow any placement or construction of, any structure, obstruction, or other improvement on the Easement Area, without written consent of Grantee in Grantee's sole and absolute discretion. Grantee shall have the right, privilege, and authority to remove from the Easement Area, without liability to Grantee or any obligation to restore, any structures, obstructions, or other improvements which existed at the time of execution of this Agreement or which hereafter are placed or constructed, or caused or allowed to be placed or constructed, by Grantor, its successors, or assigns without the written consent of Grantee. The terms "structures" and "obstructions", as used herein, shall include, without limitation, fences, buildings, asphalt and/or concrete pavement, curbing or other similar items, trees, bushes, earthen or other materials, levees, walls, berms, or other structures. 4. NATURE OF EASEMENT AND RIGHTS. The Temporary Construction Easement and other rights created by this Agreement shall be temporary, terminating upon the delivery of written notice from Grantee to Grantor noting that Grantee no longer requires the Temporary Construction Easement. Upon termination of this Agreement, the parties shall execute a release of this Agreement and place it of record in the Marion County Recorder's Office. 5. LAST DEED OF RECORD. In accordance with Ind. Code , the most recent deed of record by which Grantor holds title is instrument # A GRANTOR'S REPRESENTATIONS AND COVENANTS. Grantor makes the following representations and warranties for the purpose of inducing Grantee to accept the Temporary Construction Easement: a. Grantor is the owner in fee simple of the Easement Area, is lawfully seized thereof and has a good right to grant and convey the Temporary Construction Easement pursuant to this Agreement, warrants the quiet enjoyment thereof, and will warrant and defend Grantee's title and interest in said Temporary Construction Easement against all claims. b. There are not indentures, easements, or licenses of any kind or character on the Easement Area that would materially and adversely affect the rights of Grantee pursuant to the Temporary Construction Easement.

3 c. There are no other encumbrances, leases, liens, or options of any kind or character on the Easement Area as granted that would materially and adversely affect the rights of Grantee pursuant to the Temporary Construction Easement. 7. GRANTEE'S REPRESENTATIONS AND COVENANTS. Grantee covenants that, subject to the rights, privileges, and authority hereunder, in the exercise of such rights, privileges and authority, Grantee shall restore the portion of the Easement Area and, if applicable, that portion of the Grantor Parcel adjoining the Easement Area, disturbed by Grantee. Said restoration shall be limited to the Grantee re-grading and seeding the portion of the Easement Area and Grantor Parcel adjoining the Easement Area that is disturbed by Grantee. 8. MISCELLANEOUS a. Binding Agreement. This Agreement shall run with the Easement Area, be a burden on the Grantor Parcel and the Easement Area and shall be binding upon Grantor, Grantee and all successors and assigns. b. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Indiana. Any lawsuit filed in connection with this Agreement shall be filed in Marion County, Indiana. c. Litigation. Grantor and Grantee agree that any litigation associated with or arising from this Agreement shall be filed with a court of competent jurisdiction within Marion County in the State of Indiana. d. Liens. Grantor covenants and represents that to the best of its knowledge the Grantor Parcel is not presently the subject of any federal, state or states, or local environmentally related lien, proceeding, claim, liability or action or the threat or likelihood thereof. e. Environmental Liability. Grantor agrees that between Grantor and Grantee, the acceptance of this Agreement by Grantee shall not increase the liability of Grantee for environmentally related claims arising from or related to conditions on the Grantor Parcel prior to the acceptance of the Agreement. f. Taxes, Assessments. Grantor agrees that this Agreement shall not transfer to Grantee any past, present, or future obligation(s) of Grantor to be responsible for, or to pay, any tax, assessment, or fee associated with or related to the Grantor Parcel. g. Modification, Release. The parties agree that this Agreement shall only be modified or released by the express, written agreement of both Grantor and Grantee. h. Corporate Authority. The undersigned represents and warrants that (he)(she) is a duly elected officer of Grantor; that Grantor is a corporation validly existing in the State of its origin and, where required, in the State where the real estate is situated; that Grantor has full corporate authority to convey the real estate interest described herein; that pursuant to resolution of the board of directors or shareholders of Grantor or by the by-laws of Grantor, (he)(she) has full authority to execute and deliver this instrument on its behalf and that said authority has not been revoked; that (he)(she) is therefore fully authorized and empowered to convey to Grantee the real estate of Grantor and that on the date of

4 execution of this Agreement (he)(she) had full authority to so act; and that all necessary corporate action for the making of this conveyance has been duly taken. i. Entire Agreement. Grantor and Grantee agree that this Agreement, and the documents incorporated herein, represent the entire understanding between Grantor and Grantee. The signing of this Agreement by Grantor and Grantee constitutes their mutual recognition that no other agreements or promises, oral or written, except as attached hereto and incorporated herein, exists between them, and that if such oral or written agreements or promises exist, such are hereby cancelled. Grantor and Grantee hereby represent to the other that Grantor and Grantee will not rely upon any agreement, promise or understanding not incorporated herein at the time of execution of this Agreement or not reduced to writing, incorporated in written amendments to this Agreement, and recorded. j. Severability. The invalidity or unenforceability of any covenant, condition, term or provision in this Agreement shall not affect the validity or enforceability of any other covenant, condition, term or provision contained herein. k. Counterparts. This Agreement may be executed in counterparts, and by each of the parties on separate counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one in the same instrument. 9. NOTICE. All notices, requests, demands, consents and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly and properly given on the date of service if delivered personal, or, if mailed, on the second business day after such notice is deposited in a receptacle of the United States Postal Service, registered or certified mail, first class postage prepaid, return receipt requested, or on the first business day following deposit with a nationally recognized overnight courier service (e.g., FedEx), postage prepaid, in any event addressed appropriately as follows: If to Grantor: Town of Fishers One Municipal Drive Fishers, IN With a copy to: City of Noblesville 16 S 10 th Street Noblesville, IN If to Grantee: With a copy to: CWA Authority, Inc N. Meridian Street Indianapolis, IN Attn: Mark C. Jacob Real Estate Department Attn: Property Planner 2150 Dr. Martin Luther King Jr. Blvd. Indianapolis, IN 46202

5 IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as of the date first written above. GRANTOR: TOWN OF FISHERS Signature Printed Title STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared, of, who acknowledged the execution of the foregoing Temporary Construction Easement Agreement to be his/her voluntary act and deed. Witness my hand and Notarial Seal this day of,. County of Residence Signature My Commission Expires Printed Name

6 GRANTOR: THE HAMILTON COUNTY COMMISSIONERS Signature Printed Title STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared, of, who acknowledged the execution of the foregoing Temporary Construction Easement Agreement to be his/her voluntary act and deed. Witness my hand and Notarial Seal this day of,. County of Residence Signature My Commission Expires Printed Name

7 GRANTOR: CITY OF NOBLESVILLE Signature Printed Title STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared, of, who acknowledged the execution of the foregoing Temporary Construction Easement Agreement to be his/her voluntary act and deed. Witness my hand and Notarial Seal this day of,. County of Residence Signature My Commission Expires Printed Name

8 GRANTEE: CWA AUTHORITY, INC. Signature: Printed: Mark C. Jacob Title: Vice President of Capital Programs and Engineering STATE OF INDIANA ) ) SS: COUNTY OF MARION ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared Mark C. Jacob, Vice President of Capital Programs and Engineering of CWA Authority, Inc., who acknowledged the execution of the foregoing Temporary Construction Easement Agreement to be his voluntary act and deed, on behalf of CWA Authority, Inc. Witness my hand and Notarial Seal this day of, County of Residence Signature My Commission Expires Printed Name After recording, please return to: CWA Authority, Inc N. Meridian Street Indianapolis, IN Attn: Mark C. Jacob This instrument was prepared by Lauren Toppen, Counsel, Citizens Energy Group. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security Number in this document, unless required by law. Chris L. Kehl

9 EXHIBIT A Grantor Parcel Parcel No A part of the southeast quarter of Section 18, Township 16 North, Range 4 East, described in Instrument , recorded in the Office of the Recorder of Marion County, Indiana, being all that part of the said described property that lies southwest of the centerline of 39th Street, northwest of the right of way of the former Norfolk & Western Railroad and the northeasterly line of a tract of land described in Instrument

10 EXHIBIT B Easement Area [Legal Description must be certified by a Registered Land Surveyor or Professional Engineer; Legal Description must also include the total legal area in square feet or acres.] B-1

11 EXHIBIT A Project: 92TU00128 Parcel: 811 (City of Noblesville & Town of Fishers) Temporary State of Indiana Tax Parcel ID: Marion County Parcel ID: Sheet 1 of 1 A part of the southeast quarter of Section 18, Township 16 North, Range 4 East, described in Instrument , recorded in the Office of the Recorder of Marion County, Indiana, depicted by the attached plat marked EXHIBIT B, being all that part of the said described property that lies southwest of the centerline of 39 th Street, northwest of the right of way of the former Norfolk & Western Railroad and the northeasterly line of a tract of land described in Instrument , more particularly described as follows: Commencing at the southeast corner of said section; thence on and along the south line of the said section South 89 degrees 52 minutes 47 seconds West feet; thence North 00 degrees 29 minutes 35 seconds West for feet to a point on the north right of way of 38 th Street where it intersects the west right of way of the former Norfolk & Western Railway at the southeast corner of said tract of land as described in Instrument ; thence on and along the said railroad right of way and east line of said tract North 33 degrees 08 minutes 51 seconds East feet; thence continuing along said east line North 39 degrees 06 minutes 22 seconds East feet to the point of beginning designated 812 on said plat; thence continuing along said east line North 20 degrees 10 minutes 38 seconds West feet to point designated 813 on said plat; thence continuing along said east line North 06 degrees 02 minutes 22 seconds East feet to point designated 814 on said plat; thence continuing along said east line and said east line extended North 39 degrees 07 minutes 22 seconds East feet to the said centerline of 39 th Street at point designated 815 on said plat; thence on and along said centerline South 50 degrees 53 minutes 59 seconds East to the aforementioned west railroad right of way at point designated 816 on said plat; thence on and along said right of way South 39 degrees 06 minutes 22 seconds West feet to the point of beginning, containing acres ( square feet), more or less. This description was prepared for Citizens Energy Group on this 23rd day of February, PARSONS CUNNINGHAM & SHARTLE ENGINEERS, INC. Rodney J. Kelly, Professional Surveyor License No. LS , State of Indiana

12 FALL CREEK PARKWAY NORTH DRIVE APP R/W EXHIBIT "B" SURFACE EASEMENT PARCEL PLAT PREPARED FOR CITIZENS ENERGY GROUP FALL CREEK APP R/W APP R/W 39TH STREET 93.24' EX. PERPETUAL EASEMENT INST (DR 1499) 91.36' SHEET 1 OF SCALE FEET TRACT DESCRIBED IN INSTRUMENT ' APP R/W 813 P.O.B ' 71.40' ' ' APP R/W APP R/W (FORMER NORFOLK & WESTERN RAILROAD) APP R/W APP. SECTION LINE 79.66' 38TH STREET ' SOUTHEAST CORNER, SECTION 18, T 16N, R 4E Hatched Area is the Approximate Temporary Taking. 811 = Parcel Designation on Location Control Route Survey Plat Owner: Parcel: County Parcel No. State Parcel No. Road: County: Section: Township: Range: The City of Noblesville and The Town of Fishers th Street Marion N 4 E Drawn By: Checked By: TJN RJK Instrument: Dated: November 9, 1994 Dimensions Shown Are From The Above Listed Record Documents.

13 EXHIBIT "B" SURFACE EASEMENT PARCEL PLAT PREPARED FOR CITIZENS ENERGY GROUP SHEET 2 OF 2 POINT REFERENCE CHART (IN FEET) POINT NORTHING EASTING SURVEYOR'S STATEMENT TO THE BEST OF MY KNOWLEDGE AND BELIEF, THIS PLAT COMPRISES A ROUTE SURVEY EXECUTED IN ACCORDANCE WITH INDIANA ADMINISTRATIVE CODE 865 IAC 1-12 (RULE 12). Owner: Parcel: County Parcel No. State Parcel No. Road: County: Section: Township: Range: The City of Noblesville and The Town of Fishers th Street Marion N 4 E Drawn By: Checked By: TJN RJK

14 PARCEL 811 DOCUMENTATION City of Noblesville & Town of FIshers Instrument General - This acquisition parcel is located in Section 18, T 16N, R 4E, Marion County, Indiana The boundary lines of the attached parcel are depicted as apparent per title work provided and should not be interpreted as a retracement or original boundary survey per Title 865 IAC Boundary Lines The current deed of record offers no written bearings and distances, and therefore the property lines were created by using the physical location of 39 th Street right of way; the physical location of the existing rail lines and the apparent railroad right of way, the geometry provided by the adjoining deed to the west and an ALTA Survey (pro-forma) prepared by American Structurepointe dated December 28, 2016 then rotated to match the section line information as observed. The T&E report performed for this right of way acquisition was provided on both Marion County Tax ID parcels and , as both parcels are covered within the parent deed description. However, since the right of way takings only affect Marion County Tax ID parcel , only the encumberances provided that affect this Tax ID parcel are listed below. Miscellaneous Easements: - Perpetual Easement for the Sanitary Sewer in favor of the City of Indianapolis, recorded as Instrument in Deed Record 1499 in the Office of the Recorder of said county.. Mortgages: - None Rodney J. Kelly, P.S. Date:

15 EXHIBIT C Project Plans Note: Include only plan sheets that are relevant to the parcel being acquired. B-2

16 NOT FOR CONSTRUCTION 90% DESIGN SUBMITTAL Temporary Easement Area C:\pw_working\cngpw\d \SD-FC13_PRELIMINARY SITE LAYOUT 2.dwg, 11/4/ :50:15 AM, fod78390