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HomeMy WebLinkAboutBPW 06-07-17-02/Carmel United Methodist Church/Temporary Construction Access AgreementRESOLUTION NO. BPW 06-07-17-02 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY ACKNOWLEDGING RECEIPT OF CONTRACT WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Carmel, Indiana ("City"), is authorized to enter into contracts; and WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's mayor may enter into contracts on behalf of the City; and WHEREAS, pursuant to his authority under Indiana law, the City's mayor, the Honorable James C. Brainard, has caused to be signed the City contract attached hereto as Exhibit A (the "Contract"); and WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and Safety for it to be publicly acknowledged, filed in the Clerk -Treasurer's Office, and made available to the public for review. follows: NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as 1. The foregoing Recitals are incorporated herein by this reference. 2. The receipt of the Contract is hereby .acknowledged. 3. The Contract shall be promptly filed in the office of the Clerk -Treasurer and thereafter made available to the public for review. SO RESOLVED this 7 day of �y%✓te- , 2017. CITY OF CARMEL, INDIANA ` By and through its Board of Public Works and Safety I:_ es Brainard, Presiding Officer S:\E Bass\A4y Documents\BPW-Resolutions12017106-07-17-02 Acknowledge Temporary Construction Access Agreementdocx5/26/2017 8:39 AM TEMPORARY CONSTRUCTION ACCESS AGREEMENT THIS TEMPORARY CONSTRUCTION ACCESS AGREEMENT ("Agreement") is made this day of May, 2017, by and between Carmel United Methodist Church, Inc. (a/k/a the Board of Trustees of the First Methodist Church of Carmel, Indiana, the Board of Trustees of the Carmel United Methodist Church; and the Carmel United Methodist Church), ("Grantor") and the benefit of the City of Carmel, Indiana, an Indiana municipal corporation ("Grantee"). Recitals A. Grantor is the owner of that certain land located in the City of Carmel, Hamilton County, Indiana; as depicted in Exhibit 1, attached hereto and made a part hereof (the "Grantor Parcel"). B. Grantee. has undertaken a public project to construct a roundabout at the intersection of Rangeline Road and City Center Drive in Carmel, Clay Township, Hamilton County, Indiana (the "Project"). C. The Project affects a portion of the Grantor Parcel and Grantee needs to acquire fee simple title to a portion of the Grantor Parcel which portion (the "Fee Parcel") is more particularly described in Exhibit 2 attached hereto and incorporated herein, and described on said exhibit as "Proposed R/W Take". D. Due to the construction associated .with the Project, Grantee will be required to add a grass area to backfill the sidewalk and blend With the existing ground, (the "Additional Work"). E. In order to complete the work associated with the Project and the Additional Work, Grantee also requires access to a portion of the Grantor Parcel immediately adjacent to the Fee Parcel in the area described on Exhibit 2 as "Temporary R/W take for grading" (the "Access Area"). F. Work on the Project. and the Additional Work may commence prior to the Grantee's acquisition of the Fee Parcel. G. Grantee has requested, and Grantor has agreed to permit, Grantee to enter on and upon the Access Area in order to complete work associated with the Project and the Additional Work. Agreement NOW, THEREFORE, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant and Scope of Construction Easement; Acquisition of Fee Parcel. Grantor hereby grants to Grantee, its agents, employees, contractors and sub -contractors, a temporary 1 access and construction easement to enter upon and use the Fee Parcel and the Access Area for completing the Project and the Additional Work and for access related to the work associated with the Project. Grantee shall proceed with all necessary action to acquire the Fee Parcel from Grantor. Grantee has provided Grantor with an offer to acquire the Fee Parcel through its right of eminent domain pursuant to I.C. §32-24-14 et seq. (the "Condemnation Act") in accordance with the terms of the Condemnation Act. Grantor agrees that it will allow Grantee to proceed with the acquisition of the Fee Parcel from Grantor in accordance with applicable law. 2. Duration. (a) Commencement. The rights granted to Grantee under this Agreement shall commence on the date hereof (b) Termination by Conveyance. Except as provided in Section 3 below, access afforded pursuant to the terms of this Agreement shall be irrevocable until such time as a deed for the Fee Parcel (the "Deed") is recorded in the Office of Recorder of Hamilton County, Indiana at which time this Agreement shall terminate. (c) Termination by Order. Neither party hereto waives any of their rights with respect to the Fee Parcel in the event Grantor and Grantee are not able to negotiate the acquisition of the Fee Parcel 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 is issued by the applicable Court having competent jurisdiction regarding eminent domain matters and such Order is recorded in the Office of the Recorder of Hamilton County, Indiana. (d) Term for Additional Work. Notwithstanding the provisions of paragraphs (b) and (c) above, the access rights granted to Grantee under this Agreement shall be irrevocable with respect to the Additional Work until the completion of the Additional Work. (e) Mandatory Termination Date. Notwithstanding the foregoing, at the election of Grantor this Agreement shall terminate on that date one (1) year subsequent to the date hereof if not otherwise terminated prior thereto and there are no eminent domain proceedings as described hereinabove pending. In such event, all obligations of Grantee with respect to restoration. and repair of the Grantor Parcel, mechanics liens and indemnification set forth herein shall survive such a termination. 3. Restoration of Property. Grantee and its agents, employees, contractors and sub- contractors shall not cause damage or disturbance to the Grantor Parcel, except the normal and reasonable construction disturbance of the Fee Parcel and the Access Area associated with the Project, and upon completion of the work associated with the Project, shall promptly return . the Access Area to a coiidition that is substantially the same as its condition prior to the grant of access rights under this Agreement. In the event that Grantee, and/or its agents, employees, contractors and sub -contractors, cause damage to the balance of the Grantor Property aside from 2 the Fee Parcel and the Access Area, said areas of the Grantor Parcel shall 'be promptly and diligently restored and returned to a condition that is substantially the . same or better than the condition prior to the damage or disturbance. In the event that Grantee elects at any point in time not to acquire the Fee Parcel, Grantee shall, upon written notice given by Grantor, promptly and diligently restore the Fee Parcel, Access Area and other areas of the Grantor Parcel damaged or disturbed by Grantor or its agents, employees, contractors or sub -contractors, restore and return said property to a condition that is substantially the same or better than the condition prior to the damage 'or disturbance. 4. Mechanic's Liens. Grantee and its agents, employees, contractors and sub- contractors, shall not suffer the filing of any mechanic's, materialman's or similar lien against all or part of the Grantor Property. In the event any such lien is filed against the Grantor Property,. or any part thereof, for work claimed to have been done for, or material claimed to have been furnished to or on behalf of Grantee, or otherwise associated with the Project or the Additional Work, Grantee shall cause such lien to be discharged of record by bonding or as provided or required by law or in any other lawful manner. 5. Indemnity. Grantee shall indemnify and save Grantor harmless from all claims, liability, damages, demands, actions, costs and expenses (including reasonable attorneys' fees) (the "Claims") in connection with the entry onto the Fee Parcel and the Access Area by Grantee or its agents, employees, contractors and sub -contractors, or the performance of the work associated with the Project or the Additional Work, except to the extent that the Claims arise from the gross negligence or intentional misconduct of Grantor. 6. Construction. This Agreement shall entitle Grantee to all rights and privileges required or useful for the exercise of any of Grantee's rights, remedies, privileges or obligations under this Agreement. It is the purpose of this Agreement to permit Grantee access 'to the Fee Parcel and Access Area to complete the work associated with the Project and the Additional Work as contemplated herein. 7. Warranty and Authority. Grantor, by executing below, hereby warrants that Grantor is the lawful owner of the Grantor Parcel, that all approvals from Grantor and any other party with a right or interest in the Grantor Parcel (including but not. limited to mortgagees, landlords or tenants) 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 Temporary Construction Access Agreement on behalf of Grantor represents and certifies that he is a duly elected officer, 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 that all necessary action for entering into this Agreement has been taken and done. 8. 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 at the address following Grantor's signature and to Grantee at One Civic Square, 3 Carmel, Indiana, 46032, Attention: City Engineer (with a being provided to Corporation Counsel, One Civic Square, other person or address as may be designated by either Gra Notice shall be deemed given and received when person business day after deposited in the U.S. mail or on the b overnight package delivery company. copy of any notice to Grantor also Carmel, Indiana, 46032) or to such itor or Grantee by notice in writing. Llly delivered or on the third (3rd) isiness day after deposited with an 9. Severability. If any one or more of the provisions contained in this Temporary Construction Access Agreement shall be held invalid, illegal, or unenforceable, this Agreement shall be construed to give effect to the balance of its terms. 10. Binding Effect; Applicable Law. 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 are no promises or agreements between the parties hereto other than those contained or referred to herein. 11. Counterpart Signatures. This Agreement may be signed in counterparts, and all of the counterparts when taken together shall be deemed to constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the 1 °1P day of May, 2017. GRANTOR: Carmel United Methodist Church, Inc. (a/k/a the Board of Trustees of the First Methodist Church of Carmel, Indiana; the Board of Trustees of the Carmel United Methodist Church; and the Carmel United Methodist Church) r B - Prin Title: LN Title: By: Printed: Title: �AI Approved and Adopted thisVil day of V -ray 92017. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety 151A•19 Mary Ann Burke, Member Date: Lori S. Watson, Member Date: ATTEST: Christine S. Pauley, Clerk -Treasurer Date: #1083872 5 Exhibit 1 GRANTOR PARCEL A port of the Southwest Quarter of Section 30, Township_ 18 North, Range 4 East and a part of the Northwest Quarter of Section 31, Township 18 North, Range 4 East, all in Hamilton County, Indiana, being more particularly described as follows: Beginning at the southwest comer of the Southwest Quarter of Section 30, Township 18 North, Range 4 East, Hamilton County, Indiana; thence.North 00 degrees 16 minutes 40 seconds West on the west line of said Southwest Quarter a distance of 522.50 feet to the northwest comer of the real estate described in Deed Book 7.3 8, Page 81 in the Office of the Recorder at Hamilton County, Indiana; thence the following two calls the perimeter of said real .estate: 1.) North 89 degrees 57 minutes 51 seconds east parallel with the south line of said Southwest Quarter 635. 70 feet; 2.) South 00 degrees 16 minutes 40 seconds east 1.76 feet to a point on the north line of the real estate described in Deed Book 342, Page 82; thence the following three calls along the perimeter of said real estate: 1.) North 89 degrees 51 minutes 51 seconds East parallel with said south line 186.65 feet; 2.) South 00 degrees 13 minutes 57 seconds East 520.74 feet to a point on the south line of said Southwest Quarter; 3.) continuing South 00 degrees 1.3 minutes 57 seconds East 155.50 feet too point on the north line of 126th Street (Mohawk Road); thence the following five calls along the north line of said 126th Street and the north lines of the real estate described in Deed Book 288, Pages 539-547: 1.) South 89 degrees 51 minutes 51 seconds West 115.43 feet; 2.) North 00 degrees 27 minutes 42 seconds West 2.50 feet; 3.) South 89 degrees 51 minutes 51 seconds West 215. 75 feet; 4.) North 88 degrees 20 minutes 46 seconds West 160.08 feet; 5.) South 89 degrees 51 minutes 51 seconds West 331.25 feet to a point on the west line of the Northwest Quarter of Section 31, Township 18 North, Range 4 East; thence North 00 degrees 00 minutes. 00 seconds East on said west line 126.88 feet to the southeast comer of the Southeast Quarter of Section 25, Township 18 North, Range 3 East; thence North 00 degrees 16 minutes 40 seconds West on said west line a distance of 21. 12 feet to the point of beginning, containing 12.70 acres, more or less. 2 �� w r.