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HomeMy WebLinkAboutIllinois Street - Valley Dev Clerk Hamilton County Superior Court Project: Illinois Street Extension Parcel:2,2A,2B,2C,213,2E,2F,20,211,27 and 2K RIGHT OF ENTRY This RIGHT OF ENTRY has been executed this day of August,2012(the"Effective Date") by Valley Development Co.,Inc., ("Grantor") and the City of Cannel, Indiana, an Indiana municipal corporation("Grantee"). RECITALS WHEREAS,Grantor is the owner of certain real estate(the"Grantor's Parcel")located in the City of Carmel,Hamilton County,Indiana;generally adjacent to US 31,on the north and south sides of 111th Street;and WHEREAS, Grantee is involved in a project to construct a public improvement project entitled Illinois Street Extension(the"Project");and WHEREAS, the Project affects a portion of the Grantor's Parcel and Grantee needs to acquire fee simple title a portion of the Grantor's Parcel, which portion(the"Fee Parcel") is more particularly described in Exhibit"A"and Exhibit"13" which are attached hereto and incorporated herein by this reference;and WHEREAS,Grantor and Grantee have not concluded their negotiations with respect to the acquisition of Fee Parcel,but desire to enter into this Grant of Right of Entry to allow Grantee to start on the Project until such time as a deed for the Fee Parcel is fully executed and recorded; and NOW THEREFORE, in consideration of the sum of One Dollar($1.00), the foregoing Recitals,all of which are incorporated herein 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 the 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. 2. Additional Grantee Obligations. Grantee shall not cause damage to the Fee Parcel and, upon completion of any work associated with the Project,shall promptly return the Fee Parcel to a condition that is equal to or better than its condition prior to this grant of right of entry. In addition, Grantee shall have the right to have a staging area, store equipment, dirt, fill, tools, material or supplies on the Grantor's Parcel, in conjunction with the work associated with the Project.Grantee further agrees to cause its contractor to famish and keep in full force and effect throughout the term of this Right of Entry reasonable andcustomary insurance coverages. 3. Termination by Conveyance.Except as provided in Section 4 below,this Right of Entry shall be irrevocable with respect to Fee Parcel until such time as the Deed is recorded in the Office of the Recorder of Hamilton County, Indiana at which time this Right of Entry shall terminate. 1 4. Termination by Order.Neither party hereto waives any of their rights with respect to the Fee Parcel in the event negotiations fail and it becomes necessary for Grantee to institute eminent domain proceedings via the filing of a condemnation complaint.In such event,however,this Right of Entry shall nevertheless be irrevocable until such time as an Order of Appropriation,under the terms of which Grantee acquires the Fee Parcel, is issued by the applicable Court having jurisdiction regarding eminent domain matters and such Order is recorded in the Office of the Recorder of Hamilton County,Indiana. 5. Additional Conditions. Notwithstanding anything herein contained to the contrary,the parties agree as follows: CO If the parties have not reached agreement with regard to the purchase and sale of the Fee Parcel within fifteen(15)days of the Effective Date,Grantee shall initiate an action to condemn the Fee Parcel through an eminent domain action brought by Grantee pursuant to I. C. §32-24-I-I et seq. (the "Condemnation Act")in the applicable Hamilton Circuit or Superior Courts (the "Court") in accordance with the terms of the Condemnation Act. Further,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. (ii) Grantee shall pay the Court, within thirty (30) days of the filing of the condemnation action, the sum of Three Hundred Thirty Thousand Dollars ($330,000), which shall be deemed a deposit ("Deposit") towards the purchase of the Fee Parcel,and credited against the purchase price therefore in connection with any purchase and sale thereof agreed upon by the parties, or otherwise credited against any condemnation award resulting from the taking of the Fee Parcel. Upon Grantee making such Deposit, Grantor and Grantee shall stipulate to(i)the Deposit being made in advance of the receipt of the Court-appointed appraisers' award; (ii) the Deposit being fully applicable to the Court-appointed appraisers' award such that the amount to be deposited with the Court by Grantee upon receipt of the Court-appointed appraisers' award shall be reduced by the Deposit; and (iii) consent to Grantor's immediate withdrawal of such Deposit, without the need for Grantor to provide security for the repayment of the Deposit. (iii) The parties agree that for purposes of any such condemnation action,the date of the taking, for purposes of calculating interest due and payable on any award made in the condemnation action,shall be the Effective Date,provided that no interest shall be paid on the Deposit except as may be required by the Condemnation Act. (iv) Promptly upon the return of the Court-appointed appraisers' award in connection therewith, Grantee shall (but in no event later than thirty (30) days from receipt of such Court-appointed appraisers'award)deposit with the Clerk of the Court the amount, if any, by which the Court-appointed 2 the Clerk of the Court the amount, if any, by which the Court-appointed appraisers' award exceeds the Deposit made by Grantee hereunder, and consent to the withdrawal thereof by Grantor, upon Grantor providing adequate security for the repayment thereof(consistent with the provisions of the Condemnation Act) in the event the matter is resolved by settlement or entry of final judgment for a lesser amount. 6. Warranty. Grantor, by executing below, hereby warrants that Grantor is the lawful owner of the Grantor's Parcel and the Fee Parcel, that all approvals from Grantor and any other party with a right or:interest in the Grantor's Parcel and the Fee Parcel have been obtained and that there is no encumbrance, restriction, agreement or other circumstance which would prohibit Grantor from providing this Right of Entry or,the Deed;provided that Grantee acknowledges that the Fee Parcel is subject to the terms,covenants and restrictions of the plat of Meridian Suburban Subdivision. The undersigned persons executing this Right of Entry on behalf of Grantor _ represent and certify that he is a duly elected officer, partner or representative of Grantor and has been fully empowered, by proper resolution, consent or other action of Grantor, to execute and deliver this Right of Entry or; that Grantor has fullcorporate capacity to convey the real estate described herein; and that all necessary action for the making of such conveyance has been taken and done. 7. Indemnification. Grantee shall indemnify, defend and save Grantor harmless from any breach of this Right of Entry by Grantee. IN WITNESS WHEREOF,Grantor and Grantee herein have executed this Grant of Right of Entry as of the day first above written. GRANTOR: Valley Development Co., Inc. BY ittkv..- 544121,4n L. Vai:nit' Printed Name frit s. Title 3 r.. KM I Keller Macaluso LLC Attorneys at Law Tammy K. Haney Legal Solutions, Practical Advice® Direct: 317-660-3410 THaney@kellermacaluso.com August 21,2012 VIA HAND DELIVERY Mike McBride City of Carmel One Civic Square Carmel, IN 46032 Re: Valley Development Right of Entry Dear Mike: Enclosed is the original.Valley Development signature for the right of entry we received last week. Please send me a fully executed copy once the BPW has approved. Very truly yours, 4s Tam cney TKH:sIt Enclosure