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HomeMy WebLinkAboutMain at US31 - Meridian Heights Associates (2)Project 14 -06 Parcel 1.3 RIGHT OF ENTRY THIS RIGHT OF ENTRY ( "Right of Entry" or "Agreement ") has been executed thiaS day of November, 2014 (the "Effective Date ") by MERIDIAN HEIGHTS ASSOCIATES, LLC ( "Grantor ") and THE CITY OF CARMEL, INDIANA, an Indiana municipal corporation ( "Grantee "). RECITALS WHEREAS, Grantor is the owner of certain real estate (the "Grantor Parcel ") located in the City of Carmel, Hamilton County, Indiana; on the north side of Main Street and more particularly described in the deed recorded on April 3, 2014 as Instrument No. 2014012238 in the Office of the Recorder of Hamilton County, Indiana; and WHEREAS, Grantee is involved in a project to widen the right -of -way of Main Street between Illinois Street and Old Meridian Street in Clay Township, Hamilton County, Indiana (the "Project "); and WHEREAS, the Project affects a portion of the Grantor Parcel and Grantee needs to acquire the fee simple title to a portion of the Grantor Parcel, which portion is more particularly described on Exhibit A (the "Fee Parcel "), which is attached hereto and incorporated herein by this reference; and WHEREAS, Grantee is in the process of obtaining all necessary information to allow Grantee to acquire the Fee Parcel, but Grantor and Grantee desire to enter into this Grant of Right of Entry to allow Grantee to start on the Project until such time as Grantee acquires the Fee Parcel. NOW THEREFORE, in consideration of the sum of One Dollar ($1.00), the foregoing Recitals, all of which are incorporated herein by this reference and the following mutual covenants and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows: 1. Grant. Grantor hereby grants and provides to Grantee, its agents, contractors, subcontractors and employees the right to use Fee Parcel for any lawful purpose related to the Project including, but not limited to, installation of public utilities, surveying, testing, moving dirt or ground, removal of dirt or ground, landscaping, and constructing the roadway as would be permitted if the right -of -way had actually been obtained. Grantee shall obtain the required appraisals of the Fee Parcel and provide copies of such appraisals along with an offer to acquire the Fee Parcel (which offer shall be based upon such appraisals) within ninety (90) days following the date this Right of Entry is executed by both parties (the "Offer Date "). Grantee agrees that subsequent to delivery of the offer by Grantor, and prior to the filing of an eminent domain action, if Grantor requests clarification of the appraisals, Grantee and Grantor shall jointly seek clarification from the appraisers. Grantee shall not independently contact the appraisers. Any such contact shall occur with both Grantor and Grantee present. Any such discussions shall be for the purpose of providing clarification of the appraisals, and Grantee shall not have the right to depose, subpoena or submit written interrogatories to the appraisers unless and until an eminent domain action is commenced and then only in accordance with the Condemnation Act (as defined herein). Within sixty (60) days after the Offer Date, if the parties have not reached agreement with regard to the purchase and sale of the Fee Parcel, Grantee shall initiate an action to condemn the Fee Parcel through an eminent domain action brought by Grantee pursuant to I. C. § 32- 24 -1 -1 et seq. (thc "Condemnation Act ") in the applicable Hamilton Circuit or Superior Courts (the "Court") in accordance with the terms of the Condemnation Act. In connection therewith, both parties shall stipulate to the right and authority of Grantee to acquire the Fee Parcel and simultaneously with the filing of the condemnation action, shall jointly request that the Court promptly proceed to appoint appraisers to determine appropriate damages in accordance with I.C. § 32- 24 -1 -9 and Grantee shall promptly pay the amount of such damages to the court as permitted by I.C. § 32- 24 -1 -10. Grantor agrees that it will allow Grantee to proceed with the acquisition of the Fee Parcel from Grantor in accordance with applicable law. In connection with the foregoing, Grantee shall proceed promptly with all necessary action to acquire the Fee Parcel from Grantor, including exercising its right of eminent domain and pursuing such eminent domain action diligently until such time as either an order of appropriation for the Fee Parcel is entered by the court having jurisdiction thereof, or Grantor agrees to dismiss such eminent domain action and executes a deed for the Fee Parcel. The parties agree to cooperate and timely proceed in good faith under this Agreement and in any subsequent condemnation action. 2. Additional Grantee Obligations. Grantee shall not cause damage to the Grantor Parcel and, upon completion of any work associated with the Project, shall promptly return the Grantor Parcel to a condition that is equal to or better than its condition prior to this Right of Entry. Grantee further agrees to cause its contractor to furnish and keep in full force and effect throughout the term of this Right of Entry reasonable and customary insurance coverages. 3. Right of Entry Irrevocable. This Right of Entry shall be irrevocable with respect to the Fee Parcel until such time as the afore - mentioned order of appropriation or deed for the Fee Parcel is recorded in the Office of the Recorder of' Hamilton County, Indiana. 4. Warranty. Grantor, by executing below, hereby warrants that Grantor is the lawful owner of the Fee Parcel, that all approvals from Grantor and any other party with a right or interest in the Fee Parcel have been obtained and that there is no encumbrance, restriction, agreement or other circumstance which would prohibit Grantor from performing its obligations hereunder.. The undersigned person executing this Agreement on behalf of Grantor represents and certifies that he is a duly elected officer, member, manager, partner or representative of Grantor and has been fully empowered, by proper resolution, consent or other action of Grantor, to execute and deliver this Agreement; that Grantor has full capacity to enter into this Agreement and to convey the Fee Parcel; and that all necessary action for entering into this Agreement and for the making of such conveyance has been taken and done. 5. Notices. All notices to be given hereunder by either party shall be in writing and for purposes of this Agreement shall be either personally delivered or sent by certified or registered mail or by a national package express service promising overnight delivery addressed to Grantor 2 c/o Browning Investments, 6100 W. 96th Street, Suite 250, Indianapolis, Indiana 46278, Attention: Jaime Browing and to Grantee at One Civic Square, Carmel, Indiana, 46032, Attention: City Engineer (with a copy of any notice to Grantor also being provided to City Attorney, One Civic Square, Carmel, Indiana, 46032) or to such other person or address as may be designated by either Grantor or Grantee by notice in writing. Notice shall be deemed given and received when personally delivered or on the third (3rd) business day after deposited in the U.S. mail or on the business day after deposited with the package express company. 6. General Agreement of Parties. All rights and obligations hereunder shall be binding upon and inure to the benefit of Grantor and Grantee, their respective permitted successors, assigns and legal representatives. This Agreement is executed under and shall be construed in accordance with the laws of the State of Indiana and there arc no promises or agreements between the parties hereto other than those contained or referred to herein. 7. Attorneys' Fees. If Grantor or Grantee brings any action to interpret or enforce this Agreement, or for damages for any alleged breach hereof, the prevailing party in any such action shall be entitled to reasonable attorneys' fees and costs in addition to all other recovery, damages and costs. 8. Sevcrability. In the event any part or provision of this Agreement shall be determined to be invalid or enforceable, the remaining portion of this Agreement shall nevertheless continue in full force and effect. 9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. Signature pages sent by electronic means shall be fully binding on the parties. IN WITNESS WHEREOF, Grantor and Grantee herein have executed this Right of Entry as of the day first above written. Approved and Adopted this-nay of f \Lyv�m , 2014. GRANTOR: MERIDIAN HEIGHTS ASSOCIATES, LLC t mow NrNy 1NftsTM6"TS,Lie- BY: 47-- Printed: Adh/s0 GM301/ ttUd Title: CFO 3 GRANTEE- CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: g Jalffes Brainard, Presiding Office�r Date: :3S /Yp oa. 6e 4 O/ 9 Mary Ann 11irke, M m r � y Date: Lori S. Watson; Member Date: V 171;/0/ ATTEST: Dana Cordray, S Date: /, Sandra M Johnson eputy Clerk For lerk- Treasurer Meridian Heights Association, LLC ri a L) AN' , W Temp Sewer d Gradii a P.I. 63 +00.28 "PR -F4" Str. No. 141 Proposed R/W Str. No. 142 Str. No. 146 I 60' R/W Constr. Limits -r Str. No. 1 3B Str. No. 1 9.-AX INSL kART] +P.T, (26.63) 60' +29 80.0 asphalt Str. No. 143A o Existing R/W E (zo 'Line` "PR -F4 grass 20' App. q )Section Line i asphal /l- Exist. App. R/W Meridian Heights Assoc., LLC r MCRIDIAN lm, us END PROJECT BY OTHERS 9r2 7'PR -F4” _ BEM CQNSTRUCTION r 1 44+79.2 /-PR -F4" P.l.C. 48 +1528'[4' \ 0 „- 4S*LSAl'P644 Main Street 1 \J 9T CHRIFITPIIEH9 EPISCOPAL. CHURCH TIC O u1 F-7 ENO CONSTRUCTION 2490.00 5-2-A MBAIDIANIILVDI/IN ASSOCIATES, 14.0 P.O r. 51+11.66 i1 Pr -two VW UD to I 1 1 ' \\ ` \\ rue_h L_� - -I 1 1� et1 u rue I al ox T. VINCENT CAHMEL HOSPITAL Meridian Heights Assoc. LLC / monr I / 1 IryrySLOW$AryIGP,-4/ PhxIXE1181'P� /OLD VADRIDIAN MAIN 11.10PERTIDS, Ill: w. I ; 1r why I 5 1 END PROJECT e. I 654 - 1 T RG VAIN, LLC I Z 4E7 < / ? /- -IL 1.- T - -- -I . i , r: �'. i' n I I I I' 3 =• '1 ff' A I $ EpI WARD RASE 1 �I DVJELOPMEEENT 1 1 5 !Ai CLIMPANV, 111.0. 1 .1 i 1 I 1 I I 1_ I r 1 I DODIMERANG DEVELOPMENT LLC 6 L J SEC 26, T 180,13E QPY TOWNSHIP Iw',ILTCN6VNry LEGEND Qrani P. OM LAND HOLDINGS, 144: ENO PROJECT BY OTHERS 22450.00 "S -1.A" BEGIN CONSTRUCTION 22150.00 "S-1-4' CARMEL J CLAY 101NICAV CITY OF CARMEL PLAT NO. 1