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HomeMy WebLinkAboutFourth Amendment to Easement Agreement/Use of Phase II contaminated Site ' 2014038938 AMENDMENT $42.00 L/� 09/03/2014 03:58:49P 14 PGS Mary L. Clark HAMILTON County Recorder IN Cross-Reference Recorded as Presented IIIIIIIIIIIIIIIIIIIIIIIillllllllllllllllllllllllllllllllllllllllll M This Third Amendment to Easement Agreement(Use of Phase II Contaminated Site)amends that certain Easement Agreement(Use of Phase II Contaminated Site)recorded as Instrument No.200200025742 in the Office of the Hamilton County Recorder(the"Recorder's Office"),as amended by that certain:(a)Amendment to Easement Agreement(Use of Phase II Contaminated Site) recorded as Instrument No. 200400005238 in the Recorder's Office; (b) Second Amendment to Easement Agreement(Use of Phase II Contaminated Site)recorded as Instrument No.2007058837 in the Recorder's Office;and(c)Third Amendment to Easement Agreement(Use of Phase II Contaminated Site)recorded as Instrument No.20140 3$d13& in the Recorder's Office. FOURTH AMENDMENT TO EASEMENT AGREEMENT Use of Phase II Contaminated Site This Fourth Amendment to Ea e�me�n Agreement(Use of Phase II Contaminated Site)(the "Amendment") is executed this 21 iay of �'!LJ!��, 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 Amendmeri:t 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 eriiirely clear, confusion resulted; •. WHEREAS,to eliminate the confusion,CRC,CCC,and CCC Nash either have executed and recorded, or contemporaneously herewith will execute and record, the Restated Declaration; WHEREAS the Restated Declaration replaces and supersedes each of the Cross Easement Agreement and the Retail Declaration in its entirety; WHEREAS,CRC seeks to amend the Amended Easement Agreement 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 uncommon 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 I Contaminated Site)recorded as Instrument No.200200025741 in the Recorder's 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; (c)Third Amendment to Easement Agreement(Use of Phase I 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 Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10\Easements\Phase II Contaminated Site\Fourth Amendment fka Third Amendment\Fourth Amendment to Phase II Contaminated Site.v6.wpd -2- No. 2007058835 in the Recorder's Office, as amended by that certain: (a) First Amendment to Cross Easement Agreement recorded as Instrument No.2013073698 in the Recorder's Office;and(b)Amendment to Cross Easement Agreement recorded as Instrument No. 2014 . 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 II Contaminated Site), recorded as Instrument No. 200400005238 in the Recorder's Office. Original EasementAgreement shall mean that certain Easement Agreement(Use of Phase II Contaminated Site), recorded as Instrument No. 200200025742 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 on the 10 West Parcel. Parking Spaces shall mean the parking spaces located on the 10 West Lot. commonly known as "Parcel 10" which real estate is Real Estate shall mean that certain real estate c y 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. Rental Space shall mean first floor retail, restaurant, commercial, or office space. 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 II Contaminated Site) recorded as Instrument No. 2007058837 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 II Contaminated Site) recorded as Instrument No. 2014 in the Recorder's Office. II 2. Parcels. To standardize certain defined terms used in each of the Easement Agreement and the Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 I0\Easements\Phase H Contaminated Site\Fourth Amendment fka Third Amendment\Fourth Amendment to Phase II Contaminated Site.v6.wpd -3- 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 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 Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10\Easements\Phase II Contaminated Site\Fourth Amendment fka Third Amendment\Fourth Amendment to Phase II Contaminated Site.v6.wpd -4- 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 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. Parking Garage. Section 5 of the Original Easement Agreement, as amended by each of the First Amendment and the Second Amendment, is replaced and superseded in its entirety by the following: "5. Parking Garage. Grantor and Grantee agree to the following with respect to the Parking Garage: (a) the Parking Garage:(i)may contain Rental Space;(ii)shall contain an elevator, which elevator shall be located in the front of the Parking Garage; and (iii) shall be adequately lit; (b) during construction of the Parking Garage,Grantor shall provide,in a location reasonably approved by the Owners of each of the 10 North Parcel and the 10 South Parcel,temporary replacement parking for visitors Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10\Easements\Phase II Contaminated Site\Fourth Amendment fka Third Amendment\Fourth Amendment to Phase II Contaminated Site.v6.wpd -5- • to the businesses located on the 10 North Parcel,the 10 Mid Parcel,and the 10 South Parcel; (c) the Easement shall apply 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; (d) Easement parking spaces shall be free of charge and available to the general public on a first-come, first-served basis, except for a reasonable number of exclusive spaces designated by Grantor for the benefit of the Rental Space located in the Parking Garage; (e) consistent with the Companion Easement Agreement and Subsection 1(c) of the Second Amendment, as amended pursuant to the Third Amendment and restated in Section 4 of this Amendment, no Owner other than the Owner of the 10 North Parcel shall allow its employees(or the employees of its tenants)to park in the Easement parking spaces;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 Easement parking spaces in which the employees (and/or the employees of the tenants)of the Owner of the 10 North Parcel may park; and (f) pursuant to the Restated Declaration, Grantor has the right to allocate a certain percentage of the costs and expenses to maintain the 10 West Lotto the Owners of the 10 North Parcel and the 10 South Parcel. If the Parking Garage is constructed, then Grantor shall retain such allocation right;provided that the amount that Grantor may allocate shall not exceed the amount that Grantor would have incurred had the Parking Garage not been constructed (and had Grantor continued to maintain the 10 West Lot as required pursuant to the Restated Declaration. Notwithstanding anything to the contrary set forth herein,Grantor:(a)shall provide the Owner of the 10 South Parcel with an opportunity to review and approve the plans and specifications for the Parking Garage;provided that the Owner of the 10 South Parcel shall not withhold or delay its approval unreasonably;and (b)shall not have any right to appropriate any property owned by any Owner in connection with construction of the Parking Garage. Upon completion of the Parking Garage,the Easement Agreement and the Companion Easement Agreement shall be amended as necessary to reflect that the Parking Garage has been constructed and the terms of this Section apply." 6. Miscellaneous. In the event of any conflict between the Amended Easement Agreement and this 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. Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10\Easements\Phase II Contaminated Site\Fourth Amendment fka Third Amendment\Fourth Amendment to Phase II Contaminated Site.v6.wpd -6- IN WITNESS WHEREOF,CRC has executed this Amendment as of the date set forth above. THE CITY •F CARMEL REDEVELOPMENT CO MI'.SIr BY: 1 AA ■ ,/e4 iil��oV�1 William Hammer, -es den? 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 II Contaminated Site)for and on behalf of such entity. Witness my hand and Notarial Seal this 2,u4. day of 4GI1I.iSf , 2014. By: _ Notary Public Printed Name: I Ler My commission expires: I-17-19 I am a resident of Ne rn/O17 County, Indiana. }. , f P�� Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 9May07 10\Easements\Phase H Contaminated Site\Fourth Amendment fka Third Amendment\Fourth Amendment to Phase II Contaminated Site.v6.wpd -7- THE CITY OF CARMEL REDEVELOPMENT COMcefox:c.,ISSION By: Corrie Meyer, Executive Dir:tior 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 II Contaminated Site)for and on behalf of such entity. / Witness my hand and Notarial Seal this rday of 4U9 11,5i. , 2014. By: Notary Public Printed Name: fl16)ht' I Lee My commission expires: /-17-19 I am a resident of H 4 in t#Di County, Indiana. 02 ' r j., l'p r6Ff}iibl\1���° 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 10\Easements\Phase II Contaminated Site\Fourth Amendment flea Third Amendment\Fourth Amendment to Phase II Contaminated Site.v6.wpd -8- • 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 10\Easements\Phase II Contaminated Site\Fourth Amendment fka Third Amendment\Fourth Amendment to Phase U Contaminated Site.v6.wpd -9- II . . • . • . :• • • . • . .. . . • - . . . • • • - . • . • . .. • . . • . A . _... • • raw m .—...— '1 ? t '1 ..1114-i IL.. . ; . . • J !.,.!;: !Drive Lane I W ii -1 NI *1 ' 11P J .. • • ;,.... , I • i*..111 • ' :I .;,,' • EI-Ei*I. • • ',.\---, k7,•i• : .. . . - . • .34!pm?3, • :k.--r,j .„..,4-0,1:-1; • 'st., t. • .. • ••—•..... • • • ' '"- .• •— •- - ©1014 Ctrtnet City Center,LLC www.carm.elcitycenter.com I. 07.#4:i4 C A. 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(g:,2014 Carmel City Center,Lac armelcitycenter.com I 07.4:4.1 4 C A.R M.Y?L, • C ET!' 1.:'!.N 9/29/2014 TO:Diana Cordray, City of Carmel Clerk-Treasurer c TYPE OF DELIVERY: Interoffice Mail and/or Hand Delivery PHONE: ° V1 FROM:Mike Lee ° PHONE: I—I FOR YOUR RECORDS I� CAD PAGES: I� RE: Fourth Amendment to Easement Agreement Use of Phase,Il Contaminated Site (Parcel 10) Shop i r'a's S.-1-e p' r CC: tsD ° 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. m 0 rn ��O,�VEIOPMEiyr Co A Public/Private 471 to Partnership o • CRC City of Carmel Indiana