HomeMy WebLinkAboutEASEMENTS-Assignment and Assumption of Easement Rights - COC vs Poer-202210142022050282 EASE $25.00
10/14/2022 02:22:33PM 14 PGS
Jennifer Hayden
Hamilton County Recorder IN
Recorded as Presented
CROSS REFERENCE TO: Instrument No. 2022046387 II II II II II I II I I I I I I I I I 11 AMM
ASSIGNMENT AND ASSUMPTION OF EASEMENT RIGHTS
This Assignment and Assumption of Easement Rights (the "Assignment") is made
effective as of the ,]��ay of O , 2022 (the "Effective Date"), by and between
CITY OF CARMEL, INDIANA (the "Assignor") to INDIANA GAS COMPANY, INC., an
Indiana corporation, doing business as CenterPoint Energy Indiana North (the "Assignee").
RECITALS:
A. Assignor acquired a utility easement from Bart L. Poer as set forth in an Amended
and Restated Agreed Findings and Judgment dated September 20, 2022, specifically described in
Exhibit A, p.2, depicted in Exhibit B, p.2, (the "Easement") and filed in an action in the
Hamilton Superior Court styled City of Carmel. Indiana v. Bart L. Poet on September 21, 2022,
a certified copy of which was recorded in the Office of the Recorder of Hamilton County,
Indiana, on September 21, 2022, as Instrument No. 2022046387 (the "Agreed Judgment").
B. The Agreed Judgment contemplated that Assignor could assign the Easement, in
whole or in part, to Assignee.
C. Assignor now desires to assign to Assignee a non-exclusive, perpetual right in the
Easement to relocate, operate, service, maintain, and repair a pipeline for transmission and
distribution of natural gas owned and operated by Assignee; and
D. Assignee desires to acquire the rights of Assignor, in part, under the Easement
limited to the relocation, operation, service, maintenance and repair of a pipeline for transmission
and distribution of natural gas owned and operated by Assignee, as those rights are set forth in
Section 5 of the Agreed Judgment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Assignor conveys and assigns to Assignee, part of Assignor's
right in and to the Easement as described herein and created in the Agreed Judgment, and
Assignee does hereby accept such assignment and agrees to perform the duties and obligations of
Assignor under the Easement as described herein, effective as of the Effective Date. The
foregoing notwithstanding, Assignor shall have no payment obligation to Bart L. Poer under the
Agreed Judgment.
Assignor shall retain unto itself, and its grantees, heirs, successors and assigns, and all
others to whom Assignor may grant rights or easements, the right to use the Easement for any
and all purposes and uses not inconsistent with this Assignment acid/or Assignee's rights and
privileges thereunder.
Assignor hereby represents and warrants to Assignee that (a) the Agreed Judgment has
not been modified or amended; and (b) Assignor has full right and authority to enter into this
Assignment.
The Patties agree that this Assignment, and the documents incorporated herein, represent
the entire understanding between them as regards the subject matter hereof.
This Assignment shall be governed by, and construed in accordance with, the laws of the
State of Indiana, except for its conflict of laws provisions.
IN WITNESS WHEREOF, Assignor and Assignee have executed the foregoing
Assignment in their respective corporate names, signed by their duly authorized officers, the date
and year first written above.
CITY OF CARMEL, INDIANA
By:
Its: fc'
INDIANA GAS COMPANY, INC., d/b/a
CenterPoint Energy Indiana North
By: & I
Its I��p
OA
STATE OF INDIANA )
} SS:
COUNTY OF �tcAvn►in )
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared ��rr ]re�yntttG ,known to the to be the Yy\w s - — of
CITY OF CARMEL, INDIANA, and acknowledged the execution of the foregoing for and on
behalf of said Corporation as his voluntary act and deed for the purposes stated therein.
WITNESS, my hand and Notarial Seal this \Q1 day of dGtobt , 2022,
i �nocv.� `m.1�L �� )Notary Public
County of Residence: My Commission Expires
ul
$ BBE -
SEAL Resident of Hamiiton Co,
* NiyCammissian E,oires
yalA r luIV 12, 202
STATE OF )
} SS
COUNTY OF )
My Commission No.:
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared e / ® ,r• , known to me to be the of
INDIANA GA COMPANY, INC., dlbfa CenterPoint Energy Indiana North, and acknowledged
the execution of the foregoing for and on behalf of said Corporation as his voluntary act and
deed for the purposes stated therein.
WITNESS, my hand and Notarial Seal this / day of 12022.
County of Residence:
My Commmission Expires
Notary Public
My Commission No.:
ANSON SELCOURT
o : , NOtAry Public State of Indiana
* iS€AL•"r Warrick County
fr��a, ..• 4 COMMIS ion Number NP0738673
qr 11A1s`P Y OmrniWon Expires
January23, 2030
THIS INSTRUMENT WAS PREPARED BY MARCO L. DELUCIO, ATTORNEY AT LAW, P. O.
BOX 916, EVANSVILLE, INDIANA 47706. TELEPHONE: (812) 424-7575.
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 /s/ 1lcu-co L. DeLucio
Marco L. DeLucio
4
September 21, 2022
CLERK OF THE HAMILTC
CIRCUIT COURT
STATE OF INDIANA ) IN THE HAMILTON SUPERIOR COURT NO. 5
) SS:
COUNTY OF HAMILTON ) CAUSE NO. 29D05-2202-PL-001096
CITY OF CARMEL, INDIANA, )
Plaintiff, )
v. )
SART L. POER, ?
Defendant. )
Plaintiff, City of Carmel, Indiana ("Carmel"), by one of its attorneys,
Yasmin L. Stump, and Defendant, Bart L, Poer ("Defendant"), by his attorney,
George S. Padgitt (collectively the Parties"), concur in the findings set forth
below and move the Count for Amended and Restated Agreed Findings and
Judgment.
The Court, having examined the record in this case and being duly
advised, now FINDS:
1. On February 15, 2022, Carmel fled its Complaint for Appropriation
of Real Estate Interests ("Carmel's Complaint") in this case, and Defendant was
served with notice as provided by statute. In Carmel's Complaint, it seeks to
acquire from a portion of Defendant's real estate, which is the subject matter of
this case ("subject real estate"), two permanent and exclusive easements
(collectively "Easements") for Carmel's electric transmission relocation project to
improve safety and enhance pedestrian connectivity in Carmel ("Carmel's
Project"), Carmel's Project includes the relocation of a gas pipeline owned and
1
operated by Indiana Gas Company, Inc., an Indiana corporation, doing business
as CenterPoint Fnergy Indiana North ("CEIN").
2. On February 22, 2022, Defendant appeared by counsel in this
case.
3. Defendant did not file objections to Carmel's Complaint in this case.
4. The Parties now agree to Catmel's appropriation of the Easements,
including, but not limited to, all rights of immediate possession and rights of
transfer and/or assignment of any and all rights under the Easements to other
entities (including, but not limited to, Duke Energy Indiana, LLC and CEIN), which
are specifically described and depicted in Exhibits "A" and "B" attached to and
made a part of this Amended and Restated Agreed Findings and Judgment.
5. It is expressly agreed by the Parties that if Carmel assigns its rights
under the Easements, in whole or in part, to CEIN, that CEIN shall have all the
rights and obligations set forth below with respect to CEIN's facilities:
® The right to assign its rights and privileges under the Easements.
• the right, from time to time, to install, construct, inspect, maintain,
operate, repair, alter, relocate, enlarge, rebuild and remove
pipelines, including but not limited to, drips, valves, anodes, pits,
pipeline markers, cathodic equipment, test leads, meters, protective
facilities, and all other appurtenances thereto, whether above or
below the surface, convenient or necessary for the transportation
and distribution of gas or other substances which can be
2
transported through pipelines (the "CEIN Facilities"), in, under,
over, across, upon, and through the Easements,
R the right to ingress and egress over the subject real estate to and
from such Easements in the exercise of the rights herein granted,
together with reasonable working space for the purposes of
constructing, installing, operating, maintaining, replacing,
inspecting, and removing the CEIN Facilities. In the exercise of
such rights CEIN will, whenever practicable to do so, use existing
highways, roadways or other access routes;
the right to trim, cut down, remove or otherwise control any trees,
bushes, branches, roots, undergrowth, overhanging branches or
other obstructions in the Easements;
no excavating or grading shall be done within the Easements which
would either (a) reduce the coverage of soil over the CEIN
Facilities; (b) increase the coverage more than two feet (2') without
the prior written consent of CEIN, which consent will not be
unreasonably withheld; or (c) impair CEIN's ability to maintain the
CEIN Facilities; or (d) create a hazard; and
® The "811" Utility Protection Service and CEIN must be called at
least forty-eight hours (48 hours) before anyone excavates within
the Easements.
6. The Parties further agree that, after construction for Carmel's
Project on the real estate subject to Carmel's Easements being acquired in this
3
case ("Affected Real Estate"), the Affected Real Estate will be returned to
substantially the same condition as it existed prior to construction. Additionally,
after construction for Carmel's Project on the Affected Real Estate, Carmel will
resurface the parking lot on the Affected Real Estate in its entirety.
7. The Parties further agree that Defendant should recover Eighty -
Seven Thousand Dollars ($87,000.00) as total just compensation for the
Easements that Carmel is acquiring in this case and that no other party is entitled
to recover any damages due to Carmel's acquisition in this case.
8. The Parties further agree that: a.) as a part of Carmel's Project,
related distribution facilities on the subject real estate will be buried; b.) the burial
of the distribution facilities will occur upon completion of most or all of the
construction work by Carmel, its contractors, subcontractors, successors or
assigns for Carmel's Project; and c.) Carmel, its contractors, subcontractors,
successors and assigns shall be provided access to the Easements and subject
real estate to either bore or directly bury the underground fine(s) to the structure
located on the subject real estate and to replace certain electrical equipment to
the structure.
9. On June 10, 2022, an Agreed Finding and Judgment was entered
in this case.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the
Court that the Easements, described in the attached Exhibit "A" and depicted in
the attached Exhibit "B," are APPROPRIATED and that Plaintiff, City of Carmel,
Indiana, now holds two permanent and exclusive easements, including, but not
4
limited to, all rights of immediate possession, on, over, beneath, and across a
portion of Defendant's real estate, and rights of transfer and/or assignment of any
and all rights under the Easements to other entities (including, but not limited to,
Duke Energy Indiana, LLC and CEIN), which are specifically described and
depicted in the attached Exhibit "A" and Exhibit "B."
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court
that Defendant, Bart L. Poer, shall have and recover as total just compensation
for Carmel's acquisition in this case the amount of Eighty -Seven Thousand
Dollars ($87,000.00); which Carmel has deposited with the Clerk of the Court;
and that the Clerk of the Court has or shall , pay the Defendant, Bart L. Poer,
Eighty -Seven Thousand Dollars ($87,000.00) in full satisfaction of this Amended
and Reinstated Agreed Findings and ,Judgment and any and all of Defendant's
claims in this case, and send the check to George S. Padgitt, Sever Storey, LLP,
881 3rd Ave. SW, Suite 101, Carmel, IN 46032; and that no other party is entitled
to recover any damages due to Carmel's acquisition in this case.
IT IS FURTHER ORDERED by the Court that the Clerk of this Court shall
promptly send a certified copy of this Amended and Reinstated Agreed Findings
and .Judgment to the Recorder of Hamilton County, Indiana; that the Recorder
shall record the transfer of the abov"escribed Easements; and that the
Recorder shall submit evidence of that recordation, by U.S. mail, to Carmel's
attomey, Yasmin L. Stump, at: YASMIN L. STUMP LAW GROUP, PC,
Pennwood Office Park 11, Suite 101, 11495 North Pennsylvania Street, Carmel,
Indiana 46032.
5
AGREED -TO AND AI'PROVIED BY:
WL SturV
Attorney for Cel ndant, Batt f.,. A y for 'nvu, tarty of Carnwl,
Poor Indiana
Arty. No. 3 74-29 Atty. No. 14876-49
De nt. rt Poer
DaW 9/20/2022
Copies to:
Plainbff, City of Carmel, Indiana
By -
Printed Name: Jiro Brainard
Title: mavor
Yasmin L. Stump
Sarah O. Elser
YASMIN L. STUMP LIMN GROUP, PC
Pennwood Office Park ll, Suite 101
11495 North Pennsylvania Street
Carmel, IN 46032
Email: yasmin@yasminstumplaw.com
saraih@yasminstumplaw.com
George S. Padgitt
SEVER STOREY LLP
881 3rd Avenue SW, Suite 101
Carmel, IN 46032
Email: george@landownerattorneys.com
The Honorable Jennifer Hayden
Hamilton County Recorder
33 N. 9th Street, Suite 309
Noblesville, IN 46060
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plat thereof, xecordad in Deed Mc9rd 5, page 460, in tbL Office of the aveordez Of
Hamilton cqun.l.-y, and lor_atrd within the ""theast 0CarMet of 5cceioll 25, Town.-.hiv la
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UTILfTY EASEMEN'f
PART OF LOT I IN NATHAN HAWKINS SECOND ADDITION, AS PER PLAT THEREOF RECORDED IN DEED BOOK 5
PAGE 460 IN THE OFFICE OF THE RECORDER OF HAMILTON COUNTY, INDIANA, DESCRIRED AS FOLLOWS!
COMMENCJNC AT THE NORT14V&S'l CORNER (IF SAID LOT 1; THENCE NORTH 8$ DEGREES 57 MINUTES 39
SECONDS EAST A1.9NG THE NORTH [INE OF SAID LOT 1 A DISTANCE OF 12.52 FEET TO TILE PLACE OP
BEGINNING; CONTINUING NORTH 88 DECREES 57 MINUTES 09 SECCNDS EAST ,V_ONG SAID NORTH
LINE A DISTANCE OF 10.00 FEET, IHENCE SOUTH CG DECREES 06 1AINVIES 18 SECONDS NVF;5T A DISTANCE
OF 66.52 FEET TO THE SOU`III IJNE OF SAID LOT 1; THENCE SOUTH 88 DEGREES 69 MINUTES 43 SECONDS
WEST ALONG SAID SOUTH LINE A DISTANCE OF 15.77 FEET TO A NON —TANGENT CUM' T`tENCE
NORTwEASTERLY 22.42 FEET ALONG AN ARC TO THE LCFr HAV4NG A RADIUS OF 4.2.61 AND SUBTENDED BY
A LONG CHORD HAVING A BEARING OF NORTH 15 DFCiREES 10 MINUTES 41 SECONDS EAST AND A LEEMrvlH
OF 22.16 FEET; THENCE NORTH 00 DEGREES 06 MINUTES 18 SECONDS EAST A DISTANCE OF 45.23 FC'ET TO
THE PLACE OFF BEGINNING.
CONTAINING D.016 ACRES. MORE OR LESS,
J. TTJs4T E. NEWPORT, A REGISTERED LAND SJRVEYOR IN THE STATE OF INDIANA, 0O HEREBY CERTIFY THAT
THIS DESCRIPTION IS BASED ON A PERMANENT OVERHEAD EASEMENT PREPARED 3Y GARY R. RENT LS#SO379
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TO ANY OVERLAPS: GAPS OR IC4 ISIZNCIES THAT A FIELD SURVEY MIGHT DESCRIPTION 15 SUI3JEGT
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RANGE; 3 EAST UAL.ITY EASEMENT
OWNER: BART L, POER
HATCHED AREA IS THE
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NO FIELDWORK WAS PERFORATED AND ThCEWORE, THIS DESCRIP11aN
15 SLOJECT TO ANY OVERLAPS, OAFS OR INCONSISTENCIES THAT A
FIELD SURVEY hAGHT REVEAL, IYIS PLOT IS BASE0 4N A
PBNANENT OWNHUM EASEMENT PREPARED BY GARY R. KENT
LSi.50389 DATED JANUARY 7., 2018.
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TiFNT E, NEWFORT DATE
REG, LAND SURVEYOR No, 29600021
STATE OF INDIANA
PREPARED BY.
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