HomeMy WebLinkAboutDuke Energy Indiana, LLC/City Center Monon Greenway Improvements - Trail Encroachment AgreementDocuSign Envelope ID: E35D6lE6-7B79A5EC-933E-FA86BEAE9A57
Prepared By: Victoria J. Parker, Counsel, Duke Energy
Return To: Duke Energy Indiana, LLC Property No.:
Data & Document Management Land Unit No.:
526 S. Church St., ECII-05 Project No.:
Charlotte, N.C. 28202
STATE OF INDIANA
COUNTY OF HAMILTON
TRAIL ENCROACHMENT AGREEMENT
THIS TRAIL AGREEMENT (this "AGREEMENT"), made this 18th day of
January 2023, by and between DUKE ENERGY INDIANA, LLC, an Indiana limited
liability company (hereinafter referred to as "DUKE ENERGY") and CITY OF CARMEL,
INDIANA, by and through its Board of Public Works and Safety (hereinafter referred to as
"APPLICANT");
WITNESSETH:
WHEREAS, DUKE ENERGY is the owner of the fee simple title or of an easement interest
to certain lands presently serving as right-of-way corridors for DUKE ENERGY's network of
electric transmission and distribution lines and certain other lands serving as DUKE ENERGY's
electric substation site in Hamilton County, Indiana, acquired by DUKE ENERGY pursuant to
those certain deeds of conveyance or grants of easements recorded in the Public Records of
Hamilton County, Indiana as: Instrument No. 2005083784 dated December 29, 2005; Instrument
No. 2006009066 dated February 23, 2006; Instrument No. 2006027726 dated May 17, 2006; and
Instrument No. 2019032390 dated July 23, 2019.
WHEREAS, the above -cited deeds of conveyance and easements, which shall be referred
to hereinafter collectively as DUKE ENERGY's Property, afford DUKE ENERGY the right, by
appropriate legal means, to restrict any use of the said right-of-way corridors which is inconsistent
with the safe and efficient construction, reconstruction, operation or maintenance of DUKE
ENERGY's existing or future facilities therein; and
WHEREAS, APPLICANT desires to occupy and utilize a portion of said lands for the
purposes of constructing and utilizing a multi -use trail as shown in the plans attached as Exhibit
"A" (sometimes referred to herein as "APPLICANT's Utilization") which utilization shall not
interfere with DUKE ENERGY's continued operation and maintenance of DUKE ENERGY's
current and future high voltage electric transmission and distribution lines and related facilities
located thereon; and
WHEREAS, this AGREEMENT is for the purpose of recognizing the APPLICANT's
Utilization of DUKE ENERGY'S Easements as a multi -use trail for the public, and to provide for
cooperation and access during the construction, use and maintenance of said trail; and
City of Carmel -
Trail Encroachment
5.12.2022
DocuSign Envelope ID: E35D61 E6-7B79-45EC-933E-FA86BEAE9A57
WHEREAS, DUKE ENERGY is willing to grant to APPLICANT the desired occupancy
and utilization, subject to certain terms and conditions.
NOW, THEREFORE, for and in consideration of the benefits herein provided, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
The above recitals are incorporated herein as if set forth herein.
A. DUKE ENERGY hereby authorizes APPLICANT to construct, operate and
maintain that portion of a twelve (12') foot wide multi -use trail (the "Trail") which
lies over a portion of that certain tract, piece, parcel or lot of land being more
particularly shown as "Total Encroaching Area = 0.18 acre," on a plat entitled
"CITY CENTER MONON GREENWAY IMPROVEMENTS," dated July 20,
2021 (the "Plat"). The Plat is attached hereto as Exhibit "A" and incorporated
herein by reference, which has been reviewed and approved by DUKE ENERGY.
For purposes of this Agreement the term Trail shall also be deemed to mean the
Multi Use Paths or Shared Use Paths as defined by AASHTO (American
Association of State Highway and Transportation Officials).
B. Compliance with said location as shown on Exhibit "A" and the conditions specified on
"Duke Energy — Use Guidelines for Encroachments Involving Transmission Easements,"
a copy of which is attached hereto as Exhibit "B," and incorporated herein by this
reference, is necessary and essential to render the APPLICANT's Utilization of DUKE
ENERGY's Property consistent with DUKE ENERGY's continued operation and
maintenance needs of DUKE ENERGY's high voltage electric transmission and
distribution lines and related facilities located thereon. Any breach of the of the
requirements and conditions in Exhibit `B" shall permit DUKE ENERGY to be able to
shut the Trail down without liability to APPLICANT until the condition or requirement is
remedied to comply with Exhibit "B." APPLICANT acknowledges that DUKE ENERGY
may change its guidelines/restrictions from time to time and APPLICANT agrees that it
shall be required to comply with the then -current guidelines/restrictions.
C. All of APPLICANT's Activities, operations, and equipment used within the Trail beneath
or in proximity to any of DUKE ENERGY'S facilities shall at all times be in strict
compliance with the applicable provisions of the National Electrical Safety Code, the
Occupational 'Safety and Health Administration, and all Federal, State and Local
Requirements.
D. The Trail shall be for the benefit of public use and enjoyment.
E. The APPLICANT hereby agrees to so notify any of the APPLICANT's employees, agents,
contractors, representatives, or other persons constructing or maintaining the Trail and
further agrees to post notices along the Trail to notify the Public and all persons engaging
in APPLICANT's activities within said DUKE ENERGY's Property, that extreme caution
is necessary around all of DUKE ENERGY's electrical facilities, supporting structures,
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City of Carmel -
Trail Encroachment
5.12.2022
DocuSign Envelope ID: E35D6lE6-7B79-45EC-933E-FA86BEAEOA57
anchor guys or related appurtenances, and in the event of any damages or injuries, the
APPLICANT shall immediately report the nature and extent thereof to DUKE ENERGY's
nearest local office. APPLICANT agrees to put up signs along that portion of the Trail
within DUKE ENERGY's Property stating "That the Trail is owned and maintained by the
APPLICANT". The sign shall provide APPLICANT's current phone number to call for
maintenance concerns or emergencies.
F. The Trail must not exceed a total of twelve (12') feet in width, regardless of the surface
construction material.
G. A minimum separation of twenty-five (25') feet is required between the Trail or shoulder
or associated grading and any DUKE ENERGY above -ground electrical support structures
or related facility. This includes, but is not limited to, poles, towers, guy anchor(s),
equipment, etc.
H. [INTENTIONALLY DELETED].
I. The APPLICANT shall be responsible for safety and liability associated with the
construction, operation, maintenance and use of the Trail.
J. Bollards shall be installed by APPLICANT at its sole cost and expense per DUKE
ENERGY specifications, with DUKE ENERGY locks so as to prevent vehicular traffic,
where the closest trail heads in proximity to the Trail connect with roads/streets and at other
location(s), if any, reasonably identified as safety concerns by Duke Energy.
K. DUKE ENERGY may require reinforcement of the Trail at specified access points along
the corridor for DUKE ENERGY heavy equipment crossings. These Trail reinforcement
areas shall consist of a twenty (20') foot long, twelve (12') foot wide paved area capable of
supporting 80,000 lbs. with pavement markings indicating "heavy equipment crossing".
L. Culverts shall be installed where the Trail cross creeks, ditches, etc. These culverts shall
be capable of supporting 80,000 lbs., and shall be a minimum of twenty (20') feet wide.
Signage must indicate the maximum load of the crossing at culvert approach.
M. Other than DUKE ENERGY's facilities, and those approved and shown on the construction
plans for the Trail within DUKE ENERGY's Property, no structures including, but not
limited to, lights, signs (except for the notices and signage required to be posted under
Paragraphs "E" and "L" above), benches, exercise equipment, irrigation systems, overhead
wires, poles, light standards, dumpsters, trees, buildings, obstacles or other facilities shall
be located, constructed or installed within DUKE ENERGY's Property.
3
City of Carmel -
Trail Encroachment
5.12.2022
DocuSign Envelope ID: E35D61E6-7B7945EC-933E-FA86BEAE9A57
N. Planting of vegetation shall adhere to the guidelines/restrictions in Exhibit "B." There
shall be no planting of any new vegetation on or along the Trail without DUKE
ENERGY'S prior written consent.
O. DUKE ENERGY reserves the right to close, without notice, all or a portion of the Trail
located within DUKE ENERGY'S Property, for any length of time, for construction,
maintenance or emergency line operations.
P. DUKE ENERGY will not be held responsible for any damages to the Trail due to DUKE
ENERGY's operations or for any liability based on the use of the Trail. DUKE ENERGY
shall not be liable for any damages to the APPLICANT's utilization or operation of the
Trail whatsoever resulting from DUKE ENERGY's continued use and occupancy of
DUKE ENERGY's Property with the understanding that DUKE ENERGY shall not
willfully cause damage to or unreasonably interfere with the APPLICANT's Utilization.
DUKE ENERGY agrees to notify the APPLICANT immediately if it inadvertently
damages any of the Trail or APPLICANT'S property while maintaining DUKE
ENERGY's infrastructure, and further agrees to take steps to temporarily ensure that said
damaged area is properly identified and secured from public access. However,
APPLICANT agrees that it will repair, at its sole costs, any damage that DUKE ENERGY
may cause to the Trail during DUKE ENERGY's construction, operation and maintenance
of its facilities.
Q. APPLICANT acknowledges that its use of the Trail and/or DUKE ENERGY's Property
shall be at APPLICANT's sole risk and expense. DUKE ENERGY shall in no way be
liable to APPLICANT or any third party for any costs, expenses, losses, damages, or
liabilities incurred by APPLICANT or any third party in its use of DUKE ENERGY's
Property. APPLICANT shall indemnify to the extent permitted by law and hold DUKE
ENERGY harmless from and against any and all costs, expenses, losses, damage,
destruction, and liabilities incurred by DUKE ENERGY relating, directly or indirectly, to
use of the Trail or DUKE ENERGY's Property.
R. As a safeguard in respect to Paragraph "Q" above, APPLICANT will carry, and will cause
all of its contractors to carry, policies of insurance acceptable to DUKE ENERGY with
respect to General Liability insuring against all risks to all persons or entities which may
sustain property damage or personal injury as a result of the combined acts and omissions
of the APPLICANT or DUKE ENERGY, which may be related in any way to
APPLICANT's use of the Trail or DUKE ENERGY's Property, with Bodily Injury limits
not less than $2,000,000 each person and $5,000,000 each occurrence and with Property
Damage limits not less than $500,000 each occurrence and $1,000,000 aggregate. DUKE
ENERGY shall be named as an additional insured on such insurance policies.
APPLICANT will have the insurance policies mentioned endorsed by their insurance
carrier to provide blanket contractual coverage expressly with respect to Paragraph "Q"
above, to the full limits of and for the liabilities insured under said policies. Prior to
commencing initial construction activities within the right-of-way and/or easement,
APPLICANT will furnish DUKE ENERGY with a fully completed certificate of insurance,
4
City of Carmel -
Trail Encroachment
5.12.2022
DocuSign Envelope ID: E35D61 E6-7B79-45EC-933E-FA86BEAE9A57
in duplicate, evidencing insurance coverage of the liability assumed under said Paragraph
«Q„
S. [INTENTIONALLY DELETED].
T. All other Duke Energy Electric transmission right-of-way restrictions/guidelines shall
apply to the installation of Trail.
U. APPLICANT shall adhere to applicable regulatory provisions regarding clearances
between ground level and electric conductors. DUKE ENERGY's Property contains high
voltage power lines. Extreme caution must be used when working within the Trail and within
DUKE ENERGY's Property.
V. The area within DUKE ENERGY's Property which is disturbed by the APPLICANT's
Utilization, shall be restored by the APPLICANT to a condition at least as good as that
which existed prior to construction.
W. A DUKE ENERGY approved Inspector will be assigned to verify that construction of the
Trail within DUKE ENERGY's right-of-way and/or easement is in compliance with the
terms and conditions of this Agreement and constructed as shown on Exhibit "A". All
costs of DUKE ENERGY's Inspector are to be paid by the APPLICANT. DUKE
ENERGY's Inspector shall be notified fourteen (14) days prior to the commencement of
construction within DUKE ENERGY's right-of-way and/or easement. The APPLICANT's
Construction Manager (or designated representative) will make reports to DUKE
ENERGY's Inspector regarding any damages to DUKE ENERGY's Property, private
property or other public facilities. APPLICANT agrees to pay all expenses incurred in
connection with the repair of such damages.
X. APPLICANT shall be responsible for clean-up of any and all hazardous material spills
resulting from the APPLICANT's Utilization which may occur within DUKE ENERGY's
Property. If a hazardous material spill occurs, the APPLICANT shall immediately report
the nature and extent of the spill to DUKE ENERGY's nearest local office.
Y. APPLICANT shall be responsible for maintaining the Trail in a condition compatible with
the surrounding area.
Z. APPLICANT agrees that no burning, refueling or stockpiling of dirt or other materials are
allowed within DUKE ENERGY's Property.
AA. APPLICANT agrees to furnish DUKE ENERGY's Asset Protection Specialist with a set
of as -built drawings of the APPLICANT's utilization area within thirty (30) days of
completion of construction, noting the location of the APPLICANT's improvements within
DUKE ENERGY's Property and DUKE ENERGY's nearest structures.
City of Carmel -
Trail Encroachment
5.12.2022
DocuSign Envelope ID: E35D61 E6-7B79-45EC-933E-FA86BEAE9A57
BB. DUKE ENERGY does not guarantee that APPLICANT's utilization will be completely
compatible with the safe and efficient operation and maintenance of DUKE ENERGY's
existing and future high voltage electric transmission and distribution lines within DUKE
ENERGY's right-of-way and/or easement. In the event that APPLICANT's utilization
interferes with DUKE ENERGY's present or future use of the subject real Property,
APPLICANT agrees to relocate or adjust the Trail at APPLICANT's sole cost and expense.
APPLICANT further agrees to reimburse DUKE ENERGY for all expenses associated
with the relocation of any existing DUKE ENERGY facilities necessitated by
APPLICANT's utilization.
CC. DUKE ENERGY's Asset Protection Specialist (currently Ryan Daugherty) shall be
notified by APPLICANT at least fourteen (14) days prior to APPLICANT's
commencement of initial construction activities within DUKE ENERGY's Property.
DD. APPLICANT and DUKE ENERGY agree that if construction does not commence within
eighteen (18) months of the date of this Trail Agreement, the Trail Agreement will become
null and void.
EE. This Agreement shall not be assigned or transferred, in whole or in part, by APPLICANT
without the express written consent of DUKE ENERGY.
FF. This AGREEMENT shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
(Remainder of page intentionally blank. Signature pages follow.)
6
City of Carmel -
Trail Encroachment
5.12.2022
DocuSign Envelope ID: E35D6lE6-7B79-45EC-933E-FA86BEAE9A57
IN WITNESS WHEREOF, Duke Energy has caused this TRAIL AGREEMENT to be executed
by its duly authorized representative as of the day and year first above written.
STATE OF
ss:
COUNTY OF
GRANTOR:
DUKE ENERGY INDIANA, LLC
an Indiana limited liability company
By:
Name: Timothy D. Wiley
Title: Manager, Land Services I
This certificate relates to an acknowledgment in connection with which, no oath or affirmation was
administered to the document signer.
The foregoing instrument was acknowledged before me, a notary public in the county and state
written above this day of , 2023 by TIMOTHY D. WILEY, as
Manager, Land Services I of DUKE ENERGY INDIANA, LLC, a limited liability company organized
under the laws of Indiana, on behalf of such company.
WITNESS my hand and official seal dated , 2023.
SEAL:
Signed:
Printed or Typed Name:
Commission Expires:
7
City of Carmel -
Trail Encroachment
5.12.2022
DocuSign Envelope ID: E35D6lE6-7B79-45EC-933E-FA86BEAE9A57
IN WITNESS WHEREOF, Applicant has caused this TRAIL AGREEMENT to be executed by
its duly authorized representative(s) as of the day and year first above written.
APPLICANT:
CITY OF CARMEL, INDIANA
By and through its
Board of Public Works and Safety
By: Not Present
Name: James Brainard
Title: Mayor, Ci ty o Carme
'Y:
By:
Nam 4GAnn Burke
Title: BPW MPm6Prs, city of Carmel
D-Uftmo
By: ri tudsft
Name: EV"Watson
Title: BPW Members, City of Carmel
ATTEST:
Docuftned by:
By: rJac Wo
683A88D7A9844C5...
sue Wolfgang
(Printed Name)
Clerk, City of Carmel
Its:
1/19/2023
City of Carmel -
Trail Encroachment
5.12.2022
DocuSign Envelope ID: E35D6lE6-7879-45EC-933E-FA86BEAE9A57
STATE OFF )
COUNTY OF m�1-f0f))ss
)
"'""''' HOLLYJ7r15,2029
RMEYER
�pCP�Y aG�< % Notary Publite of Indiana
-z SEAL = Hamiounty
* * Commission r NP0737982
A;`P`�� My Commn Expires
Decem
This certificate relates to an acknowledgment in connection with which, no oath or affirmation was
administered to the document signer.
The foregoing i strument wAgowledged before me, a notary public in the county and state
written above this day ofI AA, 2023
byr - and
as the Members of the Board of Public Works and Safety and
UJL
O1 as the Clerk of the City of Carmel, Indiana, on behalf of the CITY OF
CARMEL, I IAN .
WITNESS my hand and official seal dated T0.Y\tk& I -h2023.
SEAL:
Signed:
Printed or Typed Name:
Commission Expires: a 5 'Z02 cj
My County of Residence: +&y%4' 1tCY1
My Commission Number: N P 0-1 3 79 8 Z
This Instrument Prepared by Victoria J. Parker, Attorney -at -Law, 1000 E. Main St., Plainfield, IN 46168.
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. Ryan Daugherty
9
City of Carmel -
Trail Encroachment
5.12.2022
CITY of CARMEL
REDEVELOPMENT AUTHORITY
INSTR. No. 200600039104
JULY 7, 2005
Area in easement - .138 acre
CITY OF CARMEL
REDEVELOPMENT AUTHORITY
INSTR, No. 200600D39104
JULY
THE 7, 2006
CARMEL
REDEVELOPMENTT COMMISSION
INSTR. No, 2007063257
NOVEMBER 9, 2007
CITY OF CARMEL
REDEVELOPMENT COMMISS
INSTR. N. 9909923664
APRIL 20. 1999 _
CITY OF CARMEL
REDEVELOPMENT COMMISSION
INSTR. No. 2011053909
OCTOBER 26, 2011
Utility Line locations shown
are approximate
CARMEL CITY CENTER, LLC
_INSTR, No, 2017001020
JANUARY 6, 2017
CCC HOTEL LAND. LLC - 113 INTEREST
DOWNTOWN CITY CENTER DEVELOPMENT
CORPORATION - 2/3 INTEREST
INSTR, No. 2019014464
APRIL 12, 2019
— CCC WEST, LLC
INSTR, No, 2015007520
FEBRUARY 24. 2015
DocuSign Envelope ID: E35D61 E6-7B79.45EC-933E-FA86BEAE9A57
I I Exhibit A
PSI ENERGY, INC
25' CINERGY EASEMENT
City Center Drive
CITY
INSTR, No. 200500083784
OF I
THROUGH
DECEMBER 29, 2005
I -
PUBLIC W
CITY OF CARMEL
INSTR. N,
APRI
THROUGH ITS BOARD OF
IINNSTTRI. NVo 9909AND
366 SAFETY Area In easement =. ogg aae
APRIL 10, 1999
12' offset from West edge of Easement
CARREDEVELOPMCITY ENT 99099923NCAR SSION 12� Area In easement = .019 acre
INSTR. No. 9T COMM
APRIL 20, 1999
F-
I A,
CITY OF CARMEL
)EVELOPMENT AUTHORITY
STR. N. 200600039104
DULY 7, 2006
C
O
,I
CITY OF CARMEL V7
REDEVELOPMENT AUTHORITY
MSTR, No. 200600039104
JULY 7, 2006
L Sj I"'j
Area A7 easement =18s f.
DUKE ENERGY INDIANA, LLC
ELECTRIC LINE EASEMENT
INSTR. No. 2019032390
JULY 23, 2019
CCC WEST, LLC
INSTR. No. 2015007520
FEBRUARY 24, 2015
(�12' offset from West
II edge of Easement
INSTR. No, 200500083784
DECEMBER 29. 2005
PEDCOR HOUSING CORPORATOO1
hs I I INSTR, No. 2019020668
MAY 21, 2019
CARMEL
DEVELOPMEN
+ I
I, LLC
INSTR. No,
2
N
VILLAGE CAPITAL CORPORATION
MAAYY 25.5. 2018
07
INSTR. No. 2019020687
MAY 21, 2019
I
4 G
oo
2
a DUKE ENERGY INDIANA, LLC
ELECTRIC LINE EASEMENT
PSI ENERGY, INC,
INSTR. No. 2019032390
25' CINERGYEASEMENT
DULY 23, 2019
INSTR, No. 2006 002 7726
r
MAY 17, 2006
Area /n easement = a
7e
CITY OF CARMEL
.011
REDEVELOPMENT COMMISSION
INSTR. 11, 2015007517
FEBRUARY 24, 2015
THE CITY WEL
REDEVELOPMENT COMM SSION
INSTR. No, 2007063257
-
NOVEMBER 9, 2007
Monon Green Blvd.
CARMELWORKS
THROUGH ITS BOARDT OF PUBC AND SAFETY
INSTR. No. 200200025738
CITY OF CARMEL
E4NTMARCH
REDEVELOPMENT COMMISSION
15' DRIANAGE & UTIUTY EASE
INSTR. No, 2017010195
9,12017
PER INSTR. No. 200200000157
a kT easement = .002 acre
ELECTRIC k COMMUNICATION LINE
ENT PER INSTR. NO. 200600009066
Summary:
25' Cinergy easement -
instr, no. 200500083784 - December 29, 2005
Area = .167acre
P51 Energy Inc - 25' Cinergy easement
instr. na, 200600027726 - May 17th, 2006
Area = .011 acre
Duke Energy Indiana electric line easement
instr. no. 2019032390 - July 23, 2019
Area = 18sf
25' electric and communication line easement
instr. no. 2006WO09066
Area = .002 acre
I
®Shaded hatch area is the
encroaching pavement area for the
City Center Monon project.
Total Encroaching Area = .18 acre
SCALE IN FEET 1"=80'0"
0 40 80 160
Property Owner: City of Cormel, Indiana
Project Owner: Clay Township, Indiana
County. Hamilton
Date: July 20th, 2021
Drawn By, Jocelyn Hinshaw
Checked By, —
CITY CENTER MONON
GREENWAY IMPROVEMENTS