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HomeMy WebLinkAboutFourth Amendment to Easement Agreement/Use of Phase I contaminated Site 2014038937 AMENDMENT $39.00 �jl� 09/03/2014 03:58:49P 13 PGS J �. Mary L. Clark HAMILTON County Recorder IN Recorded as Presented Cross-Reference I llIIIIIllllllllllillllll llliilllllllllllllilll11111IHJII IIJIIIIHI This Fourth Amendment to Easement Agreement(Use of Phase I Contaminated Site)amends that certain Easement Agreement(Use of Phase I Contaminated Site)recorded as Instrument No.200200025741 in the Office of the Hamilton County Recorder(the"Recorders Office"),as amended by that certain:(a)Amendment to Easement Agreement(Use of Phase I Contaminated Site) recorded as Instrument No. 200400005237 in the Recorder's Office; (b) Second Amendment to Easement Agreement(Use of Phase I Contaminated Site)recorded as Instrument No.2007058836 in the Recorder's Office;and(c)Third Amendment to Easement Agreement(Use of Phase I Contaminated Site)recorded as Instrument No.20140 3ri3n in the Recorder's Office. FOURTH AMENDMENT TO EASEMENT AGREEMENT Use of Phase I Contaminated Site This Fourth Amendm�ent to E ement Agreement(Use of Phase I Contaminated Site) (the "Amendment") is executed this '?Jay of , 2014, by The City of Carmel Redevelopment Commission ("CRC"), Witnesses: Recitals WHEREAS, CRC, as "Grantor", and BJS, LLC, as "Grantee", entered into the Original Easement Agreement; WHEREAS,the Original Easement Agreement was amended by the First Amendment,the Second Amendment, and the Third Amendment; WHEREAS, the Original Easement Agreement, as amended by the First Amendment, the Second Amendment, and the Third Amendment, is the "Amended Easement Agreement"; WHEREAS, all capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Amended Easement Agreement; WHEREAS, contemporaneously with the execution of the Second Amendment, the Cross Easement Agreement was executed; WHEREAS, the Cross Easement Agreement was intended to amend, and work in tandem with,the Retail Declaration; however, because the extent of the intended amendment was not entirely clear, confusion'resulted; WHEREAS,to eliminate the confusion,CRC,CCC,and CCC Nash either have executed and recorded, o.r..contemporaneously herewith will execute and record,the Restated Declaration; _.�. WHEREAS the Restated Declaration replaces and supersedes each of the Cross Easement Agreement arid the Retail Declaration in its entirety; W HEREAS,CRC seeks to amend the Amended EasementAgreement to be consistent,and work in tandem, with the Restated Declaration; WHEREAS,:the Amended Easement Agreement, as amended by this Amendment, is the "Easement Agreement"; WHEREAS, while the Amended Easement Agreement does not contain specific language governing amendments thereto,it is not uncom mon for easement agreements to be amended bythe"Grantor" so long as such amendment does not materially: (a) increase the obligations; or(b) decrease the rights; of any owner of any real estate burdened or benefitted, respectively, by the easements granted therein; WHEREAS,this Amendment will not materially:(a)increase the obligations;or(b)decrease the rights;of any owner of any real estate burdened or benefitted, respectively, by the easements granted in the Amended Easement Agreement; WHEREAS,in addition to being the"Grantor"underthe Amended Easement Agreement,and the owner of the 10 West Parcel, CRC now is the owner of the 10 South Parcel; and WHEREAS, CRC desires to execute this Amendment; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, CRC amends the Amended Easement Agreement as follows: 1. Definitions. To the extent that the following capitalized terms are used in the Amended Easement Agreement, they are amended as set forth in this Section. 10 Mid Parcel shall mean that portion of the Real Estate that is delineated on the Site Plan as the "10 Mid Parcel". 10 North Parcel shall mean that portion of the Real Estate that is delineated on the Site Plan as the"10 North Parcel". 10 South Lot shall mean the surface parking area located on the 10 South Parcel and delineated on the Site Plan as the"10 South Lot". 10 South Parcel shall mean that portion of the Real Estate that is delineated on the Site Plan as the"10 South Parcel". The 10 South Lot is located on the 10 South Parcel. 10 West Lot shall mean the surface parking area located on the 10 West Parcel and delineated on the Site Plan as the"10 West Lot". 10 West Parcel shall mean that portion of the Real Estate that is delineated on the Site Plan as the"10 West Parcel". The 10 West Lot is located on the 10 West Parcel. Amended Easement Agreement shall mean the Original Easement Agreement, as amended by the First Amendment,the Second Amendment, and the Third Amendment. CCC shall mean Carmel City Center, LLC. CCC Nash shall mean CCC Nash, LLC. Companion Easement Agreement shall mean that certain Easement Agreement (Use of Phase II Contaminated Site)recorded as Instrument No.200200025742 in the Recorder's Office,as amended by that certain: (a)Amendment to Easement Agreement(Use of Phase II Contaminated Site) recorded as Instrument No. 200400005238 in the Recorder's Office; (b) Second Amendment to Easement Agreement (Use of Phase II Contaminated Site) recorded as Instrument No. 2007058837 in the Recorder's Office; (c)Third Amendment to Easement Agreement(Use of Phase II Contaminated Site)recorded as Instrument No.2014 in the Recorder's Office; and (d) Fourth Amendment to Easement Agreement(Use of Phase I Contaminated Site) being executed contemporaneously with this Amendment. The Companion Easement Agreement is the "Adjacent Real Estate Easement Agreement" under the Second Amendment. Cross Easement Agreement shall mean that certain Cross Easement Agreement recorded as Instrument No. 2007058835 in the Recorder's Office, as amended by that certain: (a) First Amendment to Cross Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10\Easements\Phase I Contaminated Site\Fourth Amendment fka third amendment\Fourth Amendment to Phase I Contaminated Site.v6.wpd -2- Easement Agreement recorded as Instrument No.2013073698 in the Recorder's Office;and(b)Amendment to Cross Easement Agreement recorded as Instrument No.2014 in the Recorder's Office. The Cross Easement is referred to in the Second Amendment as both the Cross Easement Agreement and the "Multi-Party Agreement". The Cross Easement has been superseded in its entirety by the Restated Declaration. Drive Lane shall mean that portion of the Real Estate that is delineated on the Site Plan as the"Drive Lane". Easement Agreement shall mean the Amended Easement Agreement, as amended by this Amendment. First Amendment shall mean that certain Amendment to Easement Agreement (Use of Phase I Contaminated Site), recorded as Instrument No. 200400005237 in the Recorder's Office. Original Easement Agreement shall mean that certain Easem entAgreem ent(Use of Phase I Contaminated Site), recorded as Instrument No. 200200025741 in the Recorder's Office. Owner shall mean an owner of all or any part of the 10 North Parcel,the 10 Mid Parcel,the 10 South Parcel, and/or the 10 West Parcel. Parking Garage shall mean a structured parking facility constructed on the 10 West Parcel as permitted pursuant to the Companion Easement Agreement. Parking Spaces shall mean the parking spaces located on the 10 West Lot. Real Estate shall mean that certain real estate commonly known as "Parcel 10", which real estate is comprised of the 10 North Parcel, the 10 Mid Parcel, the 10 South Parcel, and the 10 West Parcel. In the aggregate,the Real Estate is comprised of what were, under the Amended Easement Agreement,the First Phase Real Estate, the Second Phase Real Estate, and the Contaminated Real Estate. Recorder's Office shall mean the Office of the Hamilton County Recorder. Restated Declaration shall mean that certain Amended and Restated Declaration of Covenants and Easements executed by CRC, CCC, and CCC Nash that either: (a) has been recorded in the Recorder's Office; or (b) will be recorded in the Recorder's Office contemporaneously with this Amendment. The Restated Declaration supersedes each of the Cross Easement Agreement and the Retail Declaration in its entirety. Retail Declaration shall mean that certain Declaration of Covenants and Easements recorded as Instrument No. 200200025737 in the Recorder's Office. The Retail Declaration has been superseded in its entirety by the Restated Declaration. Second Amendment shall mean that certain Second Amendment to Easement Agreement (Use of Phase I Contaminated Site) recorded as Instrument No. 2007058836 in the Recorder's Office. Site Plan shall mean the site plan attached hereto as Exhibit A. Third Amendment shall mean that certain Third Amendment to Easement Agreement (Use of Phase I Contaminated Site) recorded as Instrument No. 2014 the Recorder's Office. 2. Parcels. To standardize certain defined terms used in each of the Easement Agreement and the Restated Declaration, thereby making it easier to read the foregoing in tandem, the Amended Easement Agreement is amended to reflect that the Real Estate: (a) commonly is known as "Parcel 10"; and (b) is Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10\Easements\Phase I Contaminated Site\Fourth Amendment fka third amendment\Fourth Amendment to Phase I Contaminated Site.v6.wpd -3- comprised of the 10 West Parcel,the 10 South Parcel,the 10 Mid Parcel,the 10 North Parcel, and the Drive Lane. (a) 10 South Parcel. (i) The defined term "First Phase Real Estate" is replaced and superseded by the defined term "10 South Parcel". The real estate comprising the 10 South Parcel is the same as the real estate that comprised the First Phase Real Estate,and all references in the Amended Easement Agreement to the First Phase Real Estate shall be deemed to be references to the 10 South Parcel. The 10 South Lot is located on the 10 South Parcel. (ii) The defined term "Grantee Surface Lot" is replaced and superseded by the defined term "10 South Lot", and all references in the Amended Easement Agreement to the Grantee Surface Lot shall be deemed to be references to the 10 South Lot. (b) 10 West Parcel. (i) The defined term "Contaminated Real Estate" is replaced and superseded by the defined term "10 West Parcel". The real estate comprising the 10 West Parcel is the same as the real estate that comprised the Contaminated Real Estate, and all references in the Amended Easement Agreement to the Contaminated Real Estate shall be deemed to be references to the 10 West Parcel. The 10 West Lot is located on the 10 West Parcel. (ii) The defined term "Surface Lot" is replaced and superseded by the defined term "10 West Lot", and all references in the Amended Easement Agreement to the Surface Lot shall be deemed to be references to the 10 West Lot. (c) Second Phase. (i) 10 North Parcel. The defined term "SOM Second Phase Real Estate" is replaced and superseded by the defined term "10 North Parcel". The real estate comprising the 10 North Parcel is the same as the real estate that comprised the SOM Second Phase Real Estate, and all references in the Amended Easement Agreement to the SOM Second Phase Real Estate shall be deemed to be references to the 10 North Parcel. (ii) 10 Mid Parcel. The defined term "B&D Second Phase Real Estate" is replaced and superseded by the defined term "10 Mid Parcel". The real estate comprising the 10 Mid Parcel is the same as the real estate that comprised the B&D Second Phase Real Estate, and all references in the Amended Easement Agreement to the B&D Second Phase Real Estate shall be deemed to be references to the 10 Mid Parcel. (iii) The defined term "Second Phase Real Estate" is replaced and superseded by the defined terms 10 North Parcel and 10 Mid Parcel, collectively,and all references in the Amended Easement Agreement to the Second Phase Real Estate shall be deemed to be references to the 10 Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10Wasements\Phase I Contaminated Site\Fourth Amendment fka third amendment\Fourth Amendment to Phase I Contaminated Site.v6.wpd -4- North Parcel and the 10 Mid Parcel, collectively. (d) Drive Lane. Pursuant to the Restated Declaration, CRC dedicated the Drive Lane as a public roadway. 3. Repair Obligations. (a) Prior Release. Pursuant to Section 4 of the Second Amendment,CRC released the Owners of the 10 North Parcel and the 10 South Parcel from the obligations set forth in Section 2 of the Original Easement Agreement, except to the extent that such obligations apply to the Dumpster Enclosure. CRC did not release the Owner of the 10 Mid Parcel from such obligations pursuant to the Second Amendment. (b) 10 Mid Release. CRC hereby releases the Owner of the 10 Mid Parcel from the obligations set forth in Section 2 of the Original Easement Agreement, except to the extent that such obligations apply to the Dumpster Enclosure (including, without limitation, the obligation to empty the trash dumpsters and remove all refuse, garbage, trash, and debris from the Dumpster Enclosure). (c) Dumpster Enclosure. It remains the case that the Owners of the 10 North Parcel, the 10 Mid Parcel, and the 10 South Parcel retain all maintenance obligations with respect to the Dumpster Enclosure (including, without limitation, the obligation to empty the trash dumpsters and remove all refuse,garbage,trash,and debris from the Dumpster Enclosure). (d) 10 West Lot. Because the Cross Easement Agreement has been replaced and superseded by the Restated Declaration,the maintenance and repair obligations with respect to the 10 West Lot (other than the maintenance and repair obligations with respect to the Dumpster Enclosure) are set forth in, and governed by, the Restated Declaration. 4. 10 West Lot. As provided in the Third Amendment,notwithstanding the prohibition against employee parking set forth in Subsection 1(c)of the Second Amendment,the Owner of the 10 North Parcel may allow its employees (and/or the employees of its tenants)to park in the 10 West Lot; provided that CRC shall have the right to designate, from time to time and at any time upon written notice to the Owner of the 10 North Parcel,the parking spaces on the 10 West Lot in which the employees(and/or the employees of the tenants) of the Owner of the 10 North Parcel may park. 5. Reserved Rights. Section 4 of the Original Easement Agreement, as amended by the Second Amendment, is replaced and superseded in its entirety by the following: "4. Reserved Rights. Grantor reserves the right to use the Easement Real Estate for any purpose that does not interfere materially with the rights of Grantee under this Agreement; provided that Grantor reserves the right to construct buildings and other improvements on the Easement Real Estate,so long as,after construction of such buildings and other improvements,there will be at least as many Parking Spaces as there were at the time that Grantor commenced construction of such buildings and other improvements. Notwithstanding the foregoing, Grantor reserves the right to construct the Parking Garage in compliance with the terms and conditions of the Companion Easement Agreement; provided that, upon completion of the Parking Garage, the Easement Agreement shall be amended to provide that the Easement applies with respect to a number of parking spaces in the Parking Garage that is the same as the number of Parking Spaces in existence at the time that Grantor commenced construction of the Parking Garage." 6. Miscellaneous. In the event of any conflict between the Amended Easement Agreement and this Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 I0\Easements\Phase I Contaminated Site\Fourth Amendment fka third amendment\Fourth Amendment to Phase I Contaminated Site.v6.wpd -5- • Amendment,the terms and conditions of this Amendment shall control. Except as expressly provided in this Amendment, all of the terms and conditions of the Amended Easement Agreement shall remain in full force and effect. The exhibits referenced in this Amendment are attached hereto and incorporated herein by reference. This Amendment may be executed in counterparts, each of which shall be an original, but all of which together shall constitute a single document. IN WITNESS W HEREOF,CRC has executed this Amendment as of the date set forth above. THE CITY OF CARMEL DEVELOPMENT COMM:SSIO9 By: A k. x/11!1 iAiA/A William animer, �res'• '17 ACKNOWLEDGMENT STATE OF INDIANA SS: COUNTY OF MARION Before me, a Notary Public in and for the State of Indiana, personally appeared William Hammer,the President of The City of Carmel Redevelopment Commission,who acknowledged the execution of the foregoing Third Amendment to Easement Agreement(Use of Phase I Contaminated Site)for and on behalf of such entity. Witness my hand and Notarial Seal this 2.0+ day of A(.f yc 5 f ,2014. By: Notary Public/ Printed Name: niKh4ef Lee My commission expires: /-"/7—/ I am a resident of /7 4 /Vi p/1 County, Indiana. t J \ r.1 _ Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10\Easements\Phase I Contaminated Site\Fourth Amendment fka third amendment\Fourth Amendment to Phase I Contaminated Site.v6.wpd -6- THE CITY OF CARMEL REDEVELOPMENT COMMISSION. By: 5514..A--6 Corrie Meyer, Executive Dir or STATE OF INDIANA ) SS: COUNTY OF HAMILTON Before me,a Notary Public in and for the State of Indiana,personally appeared Corrie Meyer, the Executive Director of The City of Carmel Redevelopment Commission,who acknowledged the execution of the foregoing Third Amendment to Easement Agreement(Use of Phase I Contaminated Site)for and on behalf of such entity. Witness my hand and Notarial Seal this 2/5 day of 4q.9ttif , 2014. By: 07,-!.."7"/'/4----- `tai Notary Public 1;1: 0.� Printed Name: 1116 [el Lei ` v `� ''lip 1-17-/9 >4 My commission expires:_ a r `�. I am a resident of_WA Milfnn County, Indiana. ! ` gyp, <t .`� ' �G\ 411;tftPi This instrument was prepared by,and return after recording to,Jennifer R.Shoup,Attorney-At-Law,Wallack Somers & Haas, One Indiana Square, Suite 2300, Indianapolis, Indiana, 46204. 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. Jennifer R. Shoup Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 I0\Easements\Phase I Contaminated Site\Fourth Amendment fka third amendment\Fourth Amendment to Phase I Contaminated Site.v6.wpd -7- EXHIBIT A Site Plan Delineate each of 10N, 10M, 10S, and 10W Parcels Also location of Drive Lane, plus parking lot on 10S and 10W Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 I0\Easements\Phase I Contaminated Site\Fourth Amendment fka third amendment\Fourth Amendment to Phase I Contaminated Site.v6.wpd -8- • • • • . I . i ... ..:.' 1 • } .1%, ,,,,*I_ • Drive Lane 1 1 4,,A1 1 r 1:3 k --L J • f kot , Lor ` af • ©2014 C9rmet City Center,LLC www.carmelcitycenter.com I 07.#1#.14 L,•13 J.&M F S.. 4.:ay clilaF1:tf,' • • • • 1111 I • • • vty. 0 North I . 1 L 1,1t, • • 1170° • _inonsmsimusimseinser •. • 1 • .r • Irt V V . .. . . . . . . . .... ......... ....... . ....., @ 20 I 4 Carmel City Center,LLC . www.carmelcitycentercorn I 07.44.14 \i E cl y i • • II . . . 7.-. .21 1 1 r . 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I 10 O SUtirn .4... .0, , • . . . ..... . .. . .. . ..... . .. .. .. . • ... ... .. . .. • c,20 I 4 Camel City Center,LLC www.carm etc itycenter.com I 07.i14.14 CARMEL (11si 4.-p.N t I:ir . . . • • • • • • • • I lOWest • • 4 , 114 • • . • pt. „ • • • • , . . • t i'tc(6,5 • 41.t re-9;,. • • • • . . ©2014 Cannel City Center,LLC www.carm elc itycenter.corn I 07## 14 (.;A R.I.0 L C I.1 V C V N 9/29/2014 1 Pj TO:Diana Cordray, City of Carmel Clerk-Treasurer TYPE OF DELIVERY: Interoffice Mail and/or Hand Delivery ;° PHONE: 5 VT^ 1 FROM: Mike Lee PHONE: FOR YOUR RECORDS PAGES: y RE: Fourth Amendment to Easement Agreement Use of Phase I Contaminated Site (Parcel 10) 5) ho,to i r O's S :4 2 p CC: `* I✓ r• fi CD COMMENTS: The Fourth Amendment further amends the Easement Agreement covering only Parcel 10 so that such Easement Agreements are consistent, and work in tandem, with the Amended and Restated Declaration. CD CD c rn Q w t.D • rn a- LAJ CO2 c OPME �O�VE1. NT.CO A Public/Private t_ IVY Partnership 7.% CRC City of Carmel Indiana