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HomeMy WebLinkAboutMonitoring Well Agreement/J.R. Farmer Finance/Transfer of Monitoring Well 11/Engd� ASSIGNMENT AND CONVEYANCE OF MONITORING WELL AGREEMENT THIS ASSIGNMENT AND CONVEYANCE OF MONITORING WEIhL . AGREEMENT ("Agreement"), is entered into effective as of the 9 day of fibFVxCft, 201f J. ("Effective -Date"), by and between City of Carmel ("City") and Farmer Finance SC, LLC as assignee of Estridge Investment Co, LLP ("Farmer"). WITNESSETH THAT: WHEREAS, Farmer purchased property in Hamilton County by Special Warranty Deed dated July 19, 2012 and recorded August 2, 2012, in the office of the Recorder of Hamilton County ("Farmer's Property") and Farmer is remediating such property known as the former Carmel Laundromat, Indiana Department of Environmental Management ("IDEM") VRP#600604. WHEREAS, the City has been involved in certain environmental and remediation activities on property adjacent to Farmer's Property known as the Former Price Marathon site under the IDEM State Clean-up #200009506 and Facility Identification Number 22874 ("City's Property"). WHEREAS, certain monitoring wells were installed on Farmer's Property in connection with the City's environmental and remediation activities at the City's Property. WHEREAS, the City has received a No Further Action ("NFA") letter from IDEM dated September 2015, in regards to the City's Property. Whereas the NFA letter requires that the monitoring wells on both the City's Property and Farmer's Property be permanently abandoned in accordance with 312 IAC 13-10-2 and applicable regulations WHEREAS, Farmer wishes to utilize a certain monitoring well located on Farmer's Property which is more particularly identified as MW -11 on the attached Exhibit "A" which is made a part hereof ("Monitoring Well 11") instead of the City abandoning such monitoring well. It is Farmer's intention to utilize such Monitoring Well 11 as part of its own environmental and remediation activities on the Farmer's Property. WHEREAS, the City desires to assign and transfer Monitoring Well 11 to Farmer, and Farmer desires to acquire Monitoring Well 11 from the City. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1) ASSIGNMENT AND TRANSFER OF MONITORING WELL 11. The City hereby assigns, conveys, grants & transfers to Farmer all of the City's right, title and interest in and to Monitoring Well 11 (and any fixtures, supports, or equipment attached thereto), including, without limitation, all the rights, responsibilities, obligations, and remedies that arise from and through such monitoring well. 2) ACCEPTANCE OF THE CITY'S RESPONSIBILITIES AND DUTIES. Farmer hereby accepts and assumes all the City's responsibilities, risks, liabilities, duties, maintenance and care that arise from Monitoring Well 11 from and after the Effective Date. Farmer acknowledges and agrees that Monitoring Well 11 is being acquired, conveyed to, and accepted by Farmer in its present condition, on an "as is" and "where is" basis, with all faults, and that the City makes no warranties, either express or implied, as to any matter whatsoever, including without limitation, the condition of Monitoring Well 11, its merchantability or its fitness for a particular purpose. 3) INDEMNITY. Farmer hereby agrees to indemnify, defend and hold the City harmless to the KDDK328271 1 MEE/ARH fullest extent permitted by law, from and against all liabilities, suits, judgments, costs, losses, damages, lawsuits, claims, expenses, actions, obligations, cause of actions, penalties or losses (including, without limitation, attorneys' fees, legal expenses, consultants' fees, expert fees and court costs) arising directly or indirectly out of, in connection with, or relating to Monitoring Well 11 (collectively "claims"), provided said claims accrued prior to the Effective Date of this agreement. Farmer hereby releases, waives, and forever discharges the City, from any and all claims that arise after the Effective Date of this agreement. 4) INTERPRETATION. This Agreement shall inure to the benefit of, and shall be binding upon, the respective legal representatives, successors, and assigns of each of the parties. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be enforced to the fullest extent permissible and the remaining portion of this Agreement shall remain in full force and effect. In the event that ambiguity exists or is deemed to exist in any provisions of this Agreement, said ambiguity is not to be construed by reference to any doctrine calling for such ambiguity to be construed against the drafter of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, not including the choice of law rules thereof, and each party hereto by execution of this Agreement, consents to the exercise of jurisdiction over any matter arising in connection with this Agreement in the Superior Court of Hamilton County, State of Indiana. In the event of any legal action or claim between the parties hereto involving this Agreement or the respective rights of the parties hereunder, the party who does not prevail in such shall pay to the prevailing party reasonable attorneys' fees, costs and expenses incurred by the prevailing party. As used herein the term `prevailing party' shall include, but not be limited to, a party who obtains legal counsel or brings an action against the other by reason of the other's breach or default and obtains substantially the relief sought whether by compromise, settlement, or judgment. This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All headings set forth herein are included for the convenience of reference only and shall not affect the interpretation hereof, nor shall any weight or value be given to the relative position of any part or provision hereof in relation to any other provision in determining such construction. The recitals set forth in the above preamble are incorporated herein by this reference and made a part of this Agreement. As used in this Agreement, the plural shall be substituted for the singular, and the singular for the plural, where appropriate; and words and pronouns of any gender shall include any other gender. Except as stated herein otherwise, this instrument is the final agreement, contains the entire, complete and exclusive agreement between the parties concerning this subject, and supersedes all prior oral or written understandings, agreements or contracts, formal or informal, between the parties. This provision, and each and every other provision of this Agreement may not under any circumstances be modified, changed, amended or provisions hereunder waived verbally, but may only be modified, changed, amended or waived by an agreement in writing executed by all parties hereto. IN WITNESS WHEREOF, the parties have hereunto executed this Assignment, Bill of Sale, and Conveyance of Monitoring Well Agreement effective as of the date first above written. CITY OF CARMEL By: Printed Name: Title: "Cita," J.R. FARMER FINANCE -SC, LLC, as assignee of stride nve tment Co, LLP By: e► Printe Na e: v+�ter Title: "Farmer" KDDK328271 2 MEE/ARH Approved and Adopted this day of k`6 f1kvk , 20_�a. CITY OF CARMEL, INDIANA . By and through its Board of Public Works and, Safety James Brainard, Presiding O f'c Date: 3 EXBIBIT "A" TO THE ASSIGNMENT, BILL OF SALE, AND CONVEYANCE OF MONITORING WELL BY AND BETWEEN CITY OF CARMEL AND J.R. FARMER FINANCE -SC, LLC Fmnw Prim OA IID/ 72874 Q Jam' Cmvd Sh p*n Ca for 0—d 9appLv cmtw NOTES. LEGEND: GPS -1 3906 West 86th Street Active Indianapolis, Indiana ive GPS Coordinate CS -3 • Confirmation Sampring TPJ -200 x6268 Y.VYIRON www.acrve—environmental.com • Boring — Troy Risk MW -1 ® SER`gCS jNC (317) 871-8560 Observation Well —op — Overhead Power line 2012 Excavation NOTES. 3906 West 86th Street Active Indianapolis, Indiana ive S(a m� 4.1apt.d ham tM Ina rt� 7my acted 4/27/20ID end un aa(a1 pLolopvpty (mn P Former rice Marathon Plan of Site with x6268 Y.VYIRON www.acrve—environmental.com o. d, ,, � ,,,� 12999 Old Meridian Road Boring and SER`gCS jNC (317) 871-8560 Carmel, Indiana Observation Well AES FID# 22874 Locations Modified 4/7/15 Project Number fi798 Plate Number 1 1 Exhibit "A"